The Canadian Bar Association
Criminal

Davies: 'Repeal the new mandatory minimum sentences'

Canadian Press THE CANADIAN PRESS

OTTAWA — Justice reforms brought in by the previous Conservative government in the name of getting tough on criminals ``compounded pressures'' on the system — a litigation-fuelled backlash that will figure in a comprehensive Liberal review of penalties and sentencing, say internal federal notes.

As part of the review, Justice Department officials were tracking more than 100 constitutional challenges to mandatory minimum penalties alone, the notes say.

Prime Minister Justin Trudeau has asked Justice Minister Jody Wilson-Raybould to review changes to the criminal justice system over the last decade with the aim of ensuring the safety of communities, obtaining value for public money and filling any gaps.

The last general overhaul of criminal sentencing provisions took place 20 years ago. Many recent reforms focused on particular issues and were implemented through a piecemeal — rather than a comprehensive, long-term strategic — approach, says an internal memo to Wilson-Raybould.

Changes under the Conservatives, who took office in 2006, had two main objectives: ``holding offenders accountable'' to address the public's perceived leniency of sentencing outcomes in some cases, and ``truth in sentencing'' — meant to bring greater transparency to the sentencing process, says the March memo.

``The reforms have compounded pressures on the criminal justice system and have led to an increase in challenges pursuant to the Canadian Charter of Rights and Freedoms.''

It has resulted in court cases testing the constitutionality of mandatory minimum penalties, credit for time in pre-sentence custody, victim surcharge provisions and reduced judicial discretion to impose appropriate sentences — including for indigenous offenders, the mentally ill and other vulnerable people, the memo adds.

The Canadian Press obtained the memo to Wilson-Raybould and other records on the federal review of litigation through the Access to Information Act.

The memo notes there were 64 mandatory minimum penalties in the Criminal Code and nine mandatory minimums in the Controlled Drugs and Substances Act. Since 2005, 51 code offences were amended to either increase existing mandatory penalties or introduce a new one.

As of Nov. 30, 2015, the Justice Department was tracking 102 charter challenges to mandatory minimums in trial and appeal courts, the memo says.

Wilson-Raybould told the House of Commons on Monday she was ``committed to modernizing and improving the efficiencies and effectiveness of the criminal justice system.''

A report prepared for her department by B.C. law professor Yvon Dandurand says ``a politically viable strategy'' is to craft exemptions to mandatory minimums that apply when certain criteria are met, as seen in several other countries. Such relief could be granted in the case of a juvenile offender, an early guilty plea or when an accused provides substantial help to the state.

Another option would be a general ``judicial discretion clause'' that would allow the courts to overlook a mandatory sentence that would be ``contrary to the interests of justice,'' says a study for the Justice Department by Julian Roberts, a criminologist at the University of Oxford in England.

In an interview with AdvocateDaily.com, Toronto criminal lawyer Breese Davies says mandatory minimum sentences may be politically attractive, for some.  But the empirical evidence is clear that mandatory minimum sentences do not deter crime.

“Mandatory, punitive sentences do not produce a reduction in the crime rate,” she tells the online legal news service. “They simply remove discretion from trial judges to impose an appropriate sentence having regard to all the mitigating and aggravating circumstances of the offence and the offender. There is no evidence that judicial discretion in sentencing was a problem.” 

Davies, principal of Breese Davies Law, says Trudeau quite properly directed the minister of justice to review the changes made to the criminal justice system by the Harper government.  

“That is a positive step. Unfortunately, we have not seen any real progress on the review of mandatory minimum sentences in the last 12 months,” she notes. 

Davies says the solution to this problem is legally simple: “Repeal the new mandatory minimum sentences.  

“The Liberals have recently tabled legislation to repeal the outdated, discriminatory anal intercourse provisions from the Code,” she says. “There has been no movement to do the same in respect of the useless, likely unconstitutional mandatory minimum sentences. In fact, Crown counsel across the country continue to defend mandatory minimum sentences as constitutionally sound, notwithstanding the Supreme Court of Canada’s decision in R. v. Nur, which struck down the mandatory minimum sentences in relation to a number of firearms offences.”

Davies says, sadly, repealing mandatory minimum sentences is not an attractive move politically.  

“No political party or politician wants to be seen as being ‘soft on crime,’” she says. “I hope this is not the reason for the delay in addressing an obvious problem with an equally obvious solution.”

Conservative justice critic Rob Nicholson has already warned that his party would challenge any attempt by the Liberals to water down mandatory sentence provisions.

The March memo to Wilson-Raybould suggests other priorities for review include the federal bail regime, which was last reformed 44 years ago, as well as the laws on impaired driving, a serious crime that takes up considerable court time.

– With files from AdvocateDaily.com 

© 2016 The Canadian Press

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