Hot! Are mandatory minimum sentences the solution to haphazard justice?

TheGlobeandMail.com – news/national/BC -Dispatch
Published Thursday, Dec. 16, 2010. Last updated Friday, Dec. 17, 2010.   Robert Matas, Vancouver

Moments after Carol Berner was sentenced to prison for drunk driving that led to the death of four-year-old Alexa Middelaer, the youngster’s parents stepped out of the courthouse and into a circle of television cameras and reporters’ microphones.

Laura and Michael Middelaer were clearly fighting hard to keep their emotions under control, but they wanted to talk about their reaction to the sentence of 2 1/2 years for impaired driving causing death.

“I think what we see today are the limitations of an imperfect system,” Ms. Middelaer told reporters in the mid-November sunshine. “We’re hoping that this case of Alexa is the tipping point that causes educated, intelligent people to re-evaluate the issue.” Alexa’s father suggested Parliament should consider a 10-year minimum sentence for impaired driving causing death.

The campaign for minimum sentencing picked up steam this month, with the Alberta appeal court drawing attention to a wide disparity in sentencing among Canada’s 2,100 judges.

Without uniformity in the approach to sentencing, the search for just sanctions is at best a lottery and at worst a myth, the Alberta court stated in a ruling on an appeal of a 90-day sentence for a serious sexual assault. If the courts fail to put their house in order, then Parliament will do it, the Alberta court said before increasing the sentence to two years less a day of imprisonment and two years of probation.

On Parliament Hill this week, legislation to impose mandatory minimum sentencing for serious drug offences was on the agenda in the House of Commons and the Senate. Currently, the law sets only maximum penalties.

The list of proposed minimums includes six months for growing more than five marijuana plants, one year for trafficking for a criminal organization and two years for dealing drugs near a school. The Senate gave final approval to the legislation on Monday. The bill was introduced in the Commons on Tuesday.

However, experts in B.C. say the rush to restrict the discretion of judges in sentencing may be misguided.

“It’s simplistic, harmful and dysfunctional,” said Robert Mulligan, who was a Crown prosecutor for 20 years and is currently a defence lawyer in Victoria. He has also taught criminal law at the University of Victoria. “The disparity [in sentencing] is a reflection of the fact that the cases are not all the same,” he said in a recent interview.

Minimum sentences and pattern sentencing bring “the superficial notion” that everyone charged with a particular crime will be treated the same, he said. But not everyone or every crime is the same, he said, adding that each case involves different circumstances and different individuals.

The problem of judges doing something unacceptable can easily be remedied by appeals, he said. “It works very well,” Mr. Mulligan said. Only about 1 per cent of indictable offences are appealed.

Isabel Grant, who has taught at the University of British Columbia law school since 1987, said she agrees with the judicial remarks on the wide disparity in sentencing. “I’m just nervous about how this government might respond. … I do not want an over-reaction that gets rid of judicial discretion all together,” said Prof. Grant, who lectures on sentencing and criminal law.

She listed some problems raised by minimum sentences. For example, in the case of a woman who murders an abusive partner, a mandatory sentence might not allow the judge to give consideration to the fact that she endured repeated beatings.

A sentence often reflects the principles – deterrence, denunciation, proportionality or rehabilitation – that a judge focuses on, Prof. Grant said. An emphasis on deterrence will result in a significantly higher sentence than an emphasis on rehabilitation.

Another factor may be a judge’s own perspective on crimes such as drunk driving or sexual assault. Judges cannot be prevented from interjecting their own personal views, Prof. Grant said. “Hopefully, they are not just applying their own views, but are also looking at circumstances of the case and the crime, and trying to apply principles that are in the Criminal Code,” she said.

Criminal court case statistics

The number of adult criminal court cases in Canada in 2008/2009: 392,907

Percentage of cases that resulted in a conviction: 66 per cent

Province with highest conviction rate: New Brunswick (80 per cent)

Provinces with lowest percentage sentenced to custody for the most serious offences: New Brunswick and Saskatchewan (27 per cent)

Percentage of sexual assault convictions in Canada that result in custody: 54 per cent

Percentage of sexual assault convictions in Alberta that result in a prison sentence: 45 per cent

Percentage of impaired driving convictions in Canada that result in custody: 9.5 per cent

Percentage of sexual assault convictions in Alberta that result in a prison sentence: 4.2 per cent

Source: Statistics Canada

The Criminal Code requires a judge to consider one or more of these objectives in sentencing:

•Protection of the public

•Denunciation – whether a sentence expresses society’s disapproval of the offence

•Deterrence – whether a sentence deters the accused from reoffending and prevents others from committing the offence

•Rehabilitation

•Reparation for harm to victims or the community

The judge must also consider:

•Circumstances of the offence, its seriousness and the offender’s degree of responsibility

•The offender’s circumstances, attitude and criminal record

•Impact on the victim

•Sentences imposed for similar offences by similar offenders to ensure the sentence is within a range set by appeal courts and the Supreme Court of Canada.

Source: The Justice Education Society

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