Criminal Law

Judge correct in striking down mandatory minimum: Neuberger

A judge made the right decision in striking down a mandatory minimum sentence of one year in jail for a man convicted of sexual interference of a minor, says Toronto criminal lawyer Joseph Neuberger.

“The court can’t hypothesize every possible scenario where a mandatory minimum sentence would be completely unfitting, but mandatory minimums remove appropriate discretion from a judge to fashion an appropriate sentence given the facts of the case,” says Neuberger, partner with Neuberger & Partners LLP.

Ontario Superior Court Justice Maria Linhares de Sousa sentenced a 50-year-old man to seven months in jail and two years of probation after finding him guilty of sexual interference for fondling the breasts of a 15-year-old girl, the Globe and Mail reports.

In her ruling, the judge called the law establishing the mandatory minimum sentence for sexual interference unconstitutional and said one year in jail would be grossly excessive in “reasonable hypothetical” cases, though not in the one before her, the Globe article says.

Neuberger says the judge made a careful distinction between hypothetical cases and the one she was trying. She looked at both the overall impact of a constitutional challenge to the mandatory minimum and the particular facts of this case.

“That goes to show that judges are capable of meting out sentences that are appropriate to the facts,” Neuberger tells “You don’t need a mandatory minimum to tell a judge what’s an appropriate sentence.”

The constitutional ruling is only binding on lower courts in Ontario, according to the Globe.

We can expect to see a number of other challenges to mandatory minimums hitting the courts, causing delays and driving up costs, Neuberger says. “We are now seeing a very distinct trend of courts striking down these mandatory minimums because you cannot use a broad brush to simply address offenders in one type of case across the board.”

Federal Justice Minister Jody Wilson-Raybould has said she intends to reduce the widespread use of mandatory minimum sentences, 60 of which were instituted — mainly for drug, gun and sexual offences — by the previous Conservative government as part of its anti-crime agenda, the article says.

Neuberger cautions that lawyers cannot rely on Wilson-Raybould’s Liberal government to act swiftly to reform the system. “We all know that politics is a different game than justice, and it is not always politically expedient for a party to be seen as soft on crime. So I would not leave this to Parliament to do the right thing.”

But he says he “would encourage the Liberal government to take a hard look and scrutinize these mandatory minimums with a view to repealing them.”

Neuberger says he is now working on a case in which he will argue that the mandatory minimum prison sentence of five years is unfit for a man who has been convicted of conspiracy to commit robbery with a firearm.

The first-time offender has “done an excellent job of rehabilitating his life,” Neuberger says. “The mandatory minimum of five years will take him out of the workforce, stick him in a jail and bring him back to society after he has had an education with criminals.”

That would be contrary to the interests of society and to the rehabilitation goals in sentencing, he adds.

“That’s why mandatory minimums are not healthy for our sentencing,” Neuberger says. “Judges are there for a good reason: to make decisions based upon facts. And it’s extremely important that they have discretion. If the judge enters a decision that the Crown thinks is unfair, that’s what we have appellate courts for.”

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