Mandatory minimum penalties are preventing judges from arriving at just sentences

Posted on November 20, 2020 in Equality Policy Context

Source: — Authors: , – Opinion/Contributors
Jody Berkes,

This year, the ugliness of systemic racism facing Black and Indigenous people has yet again been exposed. This has inspired declarations of solidarity and calls for change, but it is not a new problem. The causes have been identified in countless reports over the past three decades.

While eliminating systemic racism from our institutions won’t happen overnight, we can’t miss ready opportunities to move the dial now. As the American Bar Association reports progress on criminal justice reform, what needs to happen here in Canada? A clear example is amending sentencing laws that have a profound and disproportionate impact on Black and Indigenous lives.

In 2019, Black Canadians comprised eight per cent of the penitentiary inmate population but just three per cent of the Canadian population. Earlier this year, the Correctional Investigator of Canada reported the Indigenous inmate population had increased by 43 per cent over the last decade, while the non-Indigenous incarcerated population declined by 14 per cent. Indigenous women now account for 42 per cent of the women inmate population in Canada. He rightly described the trajectory as “nothing short of a national travesty.”

What needs to be done today to avoid seeing these headlines repeated tomorrow, next year and in a decade’s time? We can start with giving judges back the tools to do their work, and restore their ability to address racism and inequities while our other institutions catch up.

Our Criminal Code requires judges to impose sentences that are proportionate to the gravity of the offence and the personal circumstances of the offender. Parliament has mandated that all available sanctions — other than imprisonment — that are reasonable in the circumstances and consistent with the harm done to victims or the community should be considered, in order to arrive at a just sentence. Mandatory minimum penalties prevent judges from doing that and should be eliminated for all offences except murder.

Provisions that guide judicial discretion have been developed over time through expert input, evidence-based analysis and public perceptions of fairness and justice. Instead of limiting discretion, the Criminal Code should bring the requisite attention to the circumstances of offenders who have been the subject of systemic racism, and expand the availability of conditional sentences that provide alternatives to incarceration for offenders who do not pose a danger to the community.

Courts have ruled some mandatory minimums unconstitutional, but that is not an acceptable substitute for justice reform. The COVID pandemic has emphasized that good leadership requires putting politics aside and listening to evidence and expert advice that serves the public interest.

The federal government made a commitment to sentencing reform to address these very issues. They need to live up to that promise. Sound justice policy can and should protect public safety, address systemic racism and support fair and just results for all. The impetus is clear, the urgency undeniable. The time for action is now.

Charlene Theodore is president of the Ontario Bar Association. She is the first Black president since the organization’s founding in 1907. Jody Berkes is chair of the Canadian Bar Association’s criminal justice section.

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