Another minimum sentence bites the dust

Minimum sentences preclude courts from taking into account the specific facts of the offence or the offender, argues Michael Spratt

Michael Spratt

Another minimum sentence bites the dust. But this is nothing new. And it should come as no surprise.

Last month, the Ontario Superior Court of Justice struck down the five-year minimum sentence for human trafficking of a young person. The court, in a detailed ruling, found that the personal circumstances of the offenders justified a conclusion that the five-year minimum sentence provided for under s. 279.011 of the Code was a cruel and unusual punishment violating s. 12 of the Charter.

In this case there was no actual exploitation or human trafficking. However, the court concluded that there was evidence of preliminary or preparatory conduct. In short, the accused were guilty of grooming the complainants.

There is no question that this is a serious offence deserving of serious punishment. But the personal circumstances of the offenders were tragic. Both of the female accused were victims of abuse and trauma themselves. Both had made significant steps towards rehabilitation. And both had taken steps towards accountability.

And there ultimately were jail sentences — just not a prescribed minimum sentence.

You see, minimum sentences preclude courts from taking into account the specific facts of the offence or the offender. And this is why, time and time again, courts have found minimum sentences unconstitutional. They are a one-size-fits-all solution that creates more injustice then it solves.

This is not controversial. It has been accepted in decisions by the Supreme Court of Canada, every court of appeal, and countless lower courts. It has been the topic of hundreds of hours of expert evidence before parliamentary committees.

But let’s do this dance again.

The costs of minimum sentences — both financial and social — come with little benefit. All of the criminological evidence strongly suggests that minimum sentences don't deter crime, reduce re-offense rates, or make our communities any safer. 

In fact, the government’s own research found that minimum sentences “may actually increase recidivism,” making our streets less safe.

Minimum sentences also create perverse incentives for innocent people to plead guilty due to the insidious transfer of discretion from judges to Crown prosecutors, who have the discretion to drop a minimum sentence in exchange for a plea to a lesser charge. This sort of deal, dangled before an incarcerated accused, can result in a perverse inducement for even the innocent to plead guilty. 

And guilty people? They are incentivized to fight charges even harder. There is no mitigation in a plea to a minimum sentence. The evidence, according to another government review, shows that over the past decade, as minimum sentences have increased by 103 per cent, conviction rates have dropped by 14 per cent.

Minimum sentences not only put stress on limited court resources, they may actually result in fewer convictions.

Minimum sentences have also resulted in the expensive ballooning of jail populations, including the disproportionate imprisonment of racialized and Indigenous peoples.

In short, minimum sentences are the poster child for state-sponsored racism.

Expensive, racist, ineffective, unfair, and cruel: this is why minimum sentences have routinely been declared unconstitutional.

And the result of a decade of judicial intervention is a patchwork of minimum sentence laws across Canada. They apply in some provinces but not others. This lack of consistency is yet another layer of injustice.

Yet, the Liberal government has done nothing.

In 2015, Prime Minister Justin Trudeau told The West Block’s Tom Clark that “Where we have concerns is in the overuse and quite frankly abuse of mandatory minimums.”

In 2015, an emotional Trudeau promised to fully implement the Truth and Reconciliation Commission's 94 calls to action. The 32nd of these was simple: allow judges to depart from mandatory minimum sentencing.

In 2017, it was said that the Liberal government was set to begin tackling mandatory minimum sentences.

And then there was nothing.

Perhaps principles and politics do not mix.

Perhaps Trudeau does not have the stomach or intellect to have a serious conversation about the justice system.

Perhaps Trudeau is content with racist and unjust laws.

There is another danger to inaction. By ceding the floor on minimum sentences, space is given for misinformation and lies to erode public confidence in the administration of justice.

Conservative party leader Andrew Scheer, free from any political accountability, gleefully spread lies about the justice system and minimum sentences. Conservative commentators, eager to latch onto justice system misconceptions, peddle simplistic populist solutions to perceived problems. And the public, who is largely unaware of the false bill of goods they have been sold for decades, is offered no intellectual lifeline by those in power.

This is the real hidden cost of Trudeau’s cowardice on minimum sentences: a decreased faith in our institutions and the erosion of an important pillar of our democracy.

It is time for Trudeau to be clear. Is he in favour of minimum sentences or is he not? Is he content with racist laws or is he not? Is he OK with unequal justice across Canada or is he not? Will he act or will he not?

Which is it?

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