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Truth in Sentencing Act conflicts with Criminal Code

The Conservative government’s agenda on crime and punishment is based on unsubstantiated fear engendered in or perceived to be held by the public, says Toronto criminal lawyer John Rosen.

The result is flawed legislation such as the Truth and Sentencing Act, which purports to over-ride judicial discretion in favour of a mandatory sentencing regime, says Rosen.  That conflict recently became a focal point in the case before the Supreme Court of Canada in which the its considering parts of the Truth in Sentencing Act.

According to the Globe and Mail, the act, a piece of the Conservative government’s tough-on-crime strategy that limits that ability of a judge to use discretion during sentencing, was criticized by the Supreme Court during argument as being unfair and contrary to the principles enunciated in other sections of the Criminal Code, such as Section 718.2, which statutorily mandates a balancing of aggravating and mitigating goes on to state: (b) “a sentence should be similar to sentences imposed on similar offenders for similar offenders committed in similar circumstances.”

“To comply with that provision requires a case-by-case approach to sentencing in which the trial judge considers all of the mitigating and aggravating factors relating to the offender and the offence and compares it to similar cases,” says Rosen. “The Truth and Sentencing Act takes a one-size-fits-all approach that is obviously in conflict with this over-riding sentencing section.  Thus the ‘parity’ question from the bench.”

Crime is down across the country, says Rosen, partner at Rosen Naster LLP, and, “the problem is not at the front end – the suppression of crime; it’s at the back end, where nothing is done to address offender rehabilitation and reintegration into society.  The Conservatives are chasing the American experience of long prison sentences that the Americans have come to recognize does not work.”

Parity is important because it provides some degree of certainty to the process and prevents offenders from feeling abused by and resentful towards society, says Rosen.

Rosen says that Justice Minister Peter MacKay’s defence that the Act is about building confidence in the system, is “really an exercise in purchasing the votes of the right, who fail to see the real social and financial costs to society that is subject to a hash and inflexible penal system.”


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