Louise Arbour is senior counsel at BLG, a former UN High Commissioner for Human Rights and former trial and appellate court judge. Michael Spratt is a certified criminal law specialist and partner at AGP Law.
This article first appeared in the Globe and Mail
Many problems with the Canadian criminal justice system are complex and nuanced. This is not the case with pernicious legislation requiring judges to impose mandatory minimum penalties (MMPs) for certain crimes. There is a straight line between MMPs and injustice.
For most of Canadian common law history, the task of imposing an appropriate sentence rested with the trial judge, under the direction and supervision of appellate courts. The trial judge is, after all, undeniably best placed to consider all the relevant circumstances under which the offence was committed, its impact on the victim and on society, and the characteristics of the offender. It should be the trial judge who is tasked with imposing the punishment that best reflects the sentencing principles of deterrence, denunciation, rehabilitation and reintegration.
In 2016, then-chief justice Beverley McLachlin, writing for the majority of the Supreme Court of Canada, held in R. v. Lloyd, that, “mandatory minimum sentences for offences that can be committed in many ways and under many different circumstances by a wide range of people are constitutionally vulnerable … because they will almost inevitably catch situations where the prescribed mandatory minimum would require an unconstitutional sentence.” This is because an unjust sentence would be considered a cruel and unusual punishment under the Canadian Charter of Rights and Freedoms.
But it gets worse. Cruel and unusual punishment is just the tip of the harm inflicted by mandatory sentencing. The tragic irony is that one-size-fits-all MMPs don’t affect everyone equally.
Indigenous offenders are significantly overrepresented in Canadian prisons, making up just over 30 per cent of the prison population, even though Indigenous people comprise only 5 per cent of the population in Canada. And Indigenous women are even more significantly overrepresented, accounting for almost 50 per cent of female inmates in federal correctional facilities. Black people are also disproportionately incarcerated, making up approximately 7 per cent of the prison population but only 3.5 per cent of the Canadian population.
MMPs explain part of this disparity as these groups are more frequently charged with offences attracting minimum sentences, thereby forcing the judge to impose incarceration and forego better rehabilitative options.
MMPs are not just systemically racist – they also lack transparency, operate coercively and do not increase public safety.
Mandatory sentencing creates perverse incentives for innocent people to plead guilty owing to the insidious transfer of discretion from judges to Crown prosecutors, who have the discretion to drop a charge attracting a MMP in exchange for a plea to a lesser charge.
And guilty people? Rather than agreeing to plead guilty and accept a sentence negotiated with the prosecutor and endorsed by the judge as fit, a guilty person facing a MMP is incentivized to take the case to trial. This may actually lead to less accountability; over the past decade, the number of offences attracting a MMP has increased by more than 100 per cent, but conviction rates have dropped by 14 per cent.
A favourite talking point of those who favour mandatory sentencing is their impact on deterring crime. Except that there is no evidence that MMPs actually stop offences. In fact, the government’s own analysis found that minimum sentences “may actually increase recidivism.” This may seem counterintuitive, but anyone who has set foot in Canada’s Dickensian prisons knows that there is more despair than rehabilitation to be found behind bars and this can make successful reintegration into society more difficult.
In short, MMPs are all smoke and mirrors. They serve no other purpose than to give the public the illusion that more crimes will be prevented through the deterrent effect of severe punishment. Not only is this a fiction, but it introduces perversions into the criminal justice process that run contrary to a genuine interest of reducing crime.
Misguided, if not plainly dishonest, expensive, racist, ineffective, unfair and cruel: This is why MMPs have routinely been declared unconstitutional.
The federal government has at long last taken a step to return discretion to judges and fairness to the justice system. Bill C-5, which is currently before the Senate, removes some MMPs from the Criminal Code, but unfortunately not all.
As it stands, Bill C-5 falls short of fully restoring judicial discretion. But there is still time for the Senate to intervene and amend Bill C-5 to remove all MMPs from Canadian law.
People may disagree as to whether a given sentence was too lenient or too harsh, but all should concede that a sentence imposed blindly is unfair.