When the first edition of Canada’s Criminal Code was published in 1892, a grand total of six crimes carried minimum sentences.
Engaging in a prize fight (three months in jail) and interfering with the mail (three years for stealing a post-office bag) were evidently serious preoccupations of the day.
In 1982, when the Constitution Act passed, there were still a half-dozen mandatory minimums, albeit for very different offences. But since then, our country has become drunk on the measures. Today there are roughly 100 on the books, among the highest in the world.
No one is arguing minimum penalties shouldn’t exist for murder and other serious crimes. But is it sensible to impose them for things like injuring a police dog, selling illegal tobacco or committing mischief against a war memorial?
There was a time when the Trudeau Liberals thought not. After taking power in 2015, they repeatedly promised to reduce the number of mandatory minimums in force.
But, as a Globe and Mail analysis reveals, the government has instead been content to let judges handle the heavy lifting of bringing sanity back to Canada’s sentencing laws.
This is wrong. Parliament, not judges, should be the one to pare the legislative overkill of mandatory minimums.
After all, the problem was caused by politicians in the first place. The former Harper government was especially guilty on that score, creating or expanding some 60 minimum sentences for gun, drug, sex and other high-profile offences as part of its tough-on-crime Conservative brand.
Since then, the Supreme Court has struck down two of them, including one last year that set a minimum sentence of one year for drug traffickers who have a previous trafficking conviction. The Court called it cruel and unusual punishment, and therefore unconstitutional.
In that ruling, former chief justice Beverley McLachlin said other legislated minimums were vulnerable to the same sort of ruling, and made it plain what the problem is.
“Mandatory minimum sentences that, as here, apply to offences that can be committed in various ways, under a broad array of circumstances and by a wide range of people are vulnerable to constitutional challenge,” she wrote.
It’s not like no one saw this coming. Everyone from civil libertarians to the Canadian Bar Association to provincial justice ministers to federal government experts raised the dubious constitutionality of massively expanding the use of minimum sentences.
Mandatory minimums elide much-needed context from individual sentencing decisions, constrain judicial independence and, as the courts have said, can amount to cruel and unusual punishment.
Justice Minister Jody Wilson-Raybould said last year the government supports mandatory minimums for serious crimes, as long as they are consistent with the Charter of Rights. So why hasn’t she acted, as she said she would, to get rid of them for lesser crimes?
Perhaps politics is involved in the government’s reluctance to keep its promise. No one wants to risk being seen as soft on crime.
But it’s that sort of craven calculation that has brought us to this point. It’s time the government found the courage to prune Canada’s overgrown mandatory minimum sentences.
https://www.theglobeandmail.com/opinion/editorials/article-globe-editorial-parliament-needs-to-cut-back-canadas-excessive/
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