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Mandatory minimum sentences are about politics, not justice

By Michael Harris      

Mandatory minimum sentences make our justice system worse. Winning votes is no excuse for bringing in more of them.

Conservative Party Leader Andrew Scheer pledged on May 23 to impose new mandatory minimum sentences of five years for anyone convicted of abusing children if he becomes prime minister after the fall election. The Hill Times photograph by Andrew Meade
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HALIFAX—On the face of it, it is political eye candy.

Conservative Party Leader Andrew Scheer says that if he becomes prime minister, he will get tough on child sex crimes. In particular, he says that any government he leads will impose a mandatory-minimum sentence (MMS) of five years for the sexual assault of children.

Try as the Tories might to paint this as a judicial measure, the idea behind Scheer’s pledge of getting tough on a particular crime is to create a vote-magnet. Who, after all, could be against locking up pedophiles for a lengthy and non-discretionary sentence? The Conservatives have calculated that the answer is a precious few. And to their political base, such a measure is pure catnip.

But if Scheer restores mandatory minimum sentences for sex crimes against children, the next step is inevitable: upholding the mandatory minimum sentence approach to a wide variety of crimes under the Criminal Code.

After all, how could a prime minister Scheer not support mandatory minimum sentences for murder or rape without implicitly saying these crimes are less heinous, less serious, and less consequential for their victims than child sex abuse?

And there is a much better reason for suspecting that Scheer would maintain and expand a full menu of mandatory minimum sentence crimes; that is exactly what the previous Conservative government under Stephen Harper did. Mandatory minimum sentences were widely used in sex crimes against children, gun crimes, and drug offences. Marijuana is now legal. But under Harper-era MMS’s, growing six marijuana plants carried a minimum sentence of six months in prison and a criminal record.

Although Canada has had mandatory minimum sentences on the books for a long time, with some brought into law in 1995 firearms legislation passed by the Liberals, it was the Harper government, and Andrew Scheer’s party, that greatly expanded their application. After the Safe Streets and Communities Act of 2012, a total of 29 offences were subject to mandatory minimum penalties.

The Conservatives changed the rules for parole eligibility periods, making them run consecutively instead of concurrently. That meant that it was possible, under certain circumstances, for someone to be given a life sentence for murder without the possibility of parole.

The Harperites also abolished the “faint-hope” provisions of the Criminal Code. So instead of allowing for a possible review of a murder conviction after 15 years (every murder conviction in Canada carries a life sentence), anyone convicted of first-degree murder would have to wait 25 years for parole eligibility.

For all other degrees of murder, the waiting period for parole is between 10 and 15 years. The affect of the legislation was to mimic the approach taken in the United States, the world’s most incarcerating nation. Lock more people up for longer on the assumption that would deter criminals, and thereby make society safer. Neither assumption has been supported by the research.

The Harper government was so sure that the public supported the idea of severely punishing felons that it even abolished the “least restrictive” measures applied to confining prisoners. The old rule used to be that federal prisoners lost only those rights necessary for the protection of society, staff members, and other offenders. After the Harper changes, it was up to correctional authorities alone to decide the degree of restraint a prisoner would face inside—how much liberty they would lose.

Critics of that approach argued that it led to a spate of cases involving the abuse of prisoners, from unwarranted periods of time in solitary confinement to the over-use of restraints and pepper spray.

On the subject of mandatory minimum sentences themselves, Ottawa defence lawyer Lawrence Greenspon put it to me this way: “The Harper government brought in an unprecedented number of mandatory-minimum sentences in a concerted effort to own the law and order agenda. The vast majority of these MMSs were constitutionally struck down on the the basis that they were cruel and unusual punishment.

“While these MMSs were being challenged, hundreds if not thousands of persons were sentenced to what were later found to be cruel and unusual dispositions. They served extended periods of time in jail as a result of laws which were subsequently determined to be constitutionally invalid.

“Given the clear injustice that resulted from this recent experience, it is irresponsible in the extreme to advocate any return to MMSs.”

As for the issue of at least the possibility of judicial review of murder convictions after 15 years, the “faint hope” provisions of the Criminal Code, it was a terrible thing to abolish.

My own firsthand experience on this issue includes writing a book on the tragedy of Donald Marshall Jr., a Mi’kmaq youth who went to prison in 1971 for murder at the age of 17. After serving 11 years in prison, it was irrefutably proven in court that Marshall was innocent, and that the actual murderer was Roy Newman Ebsary. What did I learn?

The subsequent Royal Commissions into Marshall’s case demonstrated beyond a shadow of a doubt that sometimes everything that can go wrong in a murder prosecution does go wrong. For that reason alone, to dispense with reviews of these kinds of cases is unforgivable.

During the last federal election, Justin Trudeau pledged to undo a lot of the judicial excesses of Stephen Harper’s self-styled tough on crime policies. Former justice minister Jody Wilson-Raybould was given a mandate letter to review the system of mandatory minimum sentences and the disproportionate number of Indigenous inmates in the federal system.

Senator Kim Pate has long argued that mandatory minimum sentences simply fail society at every level.

They do not deter crime; they do not make society safer; they violate the constitution; they discriminate against those who are marginalized; and they intrude on judicial independence, by taking away the discretion of judges who know the nuances of a case, not just the bare facts.

For these reasons and more, Senator Pate put forward Bill S-251, which would allow judges to waive mandatory minimum sentences when the circumstances warranted it.

Whatever the reasons might be for voting for Andrew Scheer, his approach to justice issues, and in particular, mandatory minimum sentences, is not one of them. They were a bad idea when Stephen Harper put them on steroids, and they are a bad idea now.

Subtracting compassion and discretion from judicial rulings is not about justice; it is about politics.

Michael Harris is an award-winning journalist and author. 

The Hill Times

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