Debates of the Senate (Hansard)2nd Session, 39th Parliament,
Volume 144, Issue 36

Wednesday, February 27, 2008
The Honourable Noël A. Kinsella, Speaker

Criminal Code – Bill to Amend – Third Reading, Bill C-2

Hon. Mobina S. B. Jaffer: Honourable senators, I also rise today to speak on Bill C-2, An Act to amend the Criminal Code and to make consequential amendments to other Acts.

The question of crime and punishment is at the very heart of life in a civil community. It represents the most basic and profound responsibility entrusted to parliamentarians. The definition of behaviour that is harmful to the community and the creation of fair and effective sanctions are matters of first principle. Without respected and respectable criminal sanctions, the order that is a precondition for everything else we do as a society cannot be effectively maintained.

Honourable senators, the issue I address today is the question of mandatory minimum sentences. There are already about 40 offences in the Criminal Code for which a mandatory minimum sentence of imprisonment must be imposed. The government would significantly expand the number of offences to which such minimums would apply.

Let me say first that the Criminal Code provides a detailed set of sentencing guidelines in section 718 to 718.2. It is interesting to return to them from time to time, especially when a particular sentence comes to the attention of the media or becomes the subject of comment by politicians.

Sections 718 states:

The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

Section 718.1 states:

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

These sections, honourable senators, are qualified in section 718.2, however, by other principles the court is obliged to consider. Section 718.2(b) to (e) read as follows:

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

Honourable senators, I wish only to make this simple observation: Our law respecting sentencing presently requires the courts to work upward from a presumption that deprivation of liberty is to be avoided. Incarceration is the last resort and not the first.

The philosophy reflected in the Criminal Code obliges the court to take a temperate approach. It virtually guarantees that sentences will generally reflect the least degree of punishment consistent with the overall principles of sentencing. In line with this philosophy, the courts, in particular the appellate courts who guide the trial courts, have articulated principles that reserve the highest sanctions for the worst sort of offenders within any given class of offence.

Mandatory minimum sentences run quite contrary to these principles which we, as legislators, have prescribed. They take away the means by which courts do justice in individual cases. They upset the presumptions set out in the principles of sentencing and create a patchwork of exceptions that appear arbitrary. “One size” never fits all human beings. This is not a cookie-cutter approach. This is to have the effect of being arbitrary.

If Parliament wishes to modify the emphasis in sentencing, a far more rational approach would be to modify the basic principles while leaving the discretion to the judges to do justice in individual cases in light of those modified principles.

Instead, the government proposes the crude mechanism of overriding the existing sentencing principles for classes of offence that they have chosen. This means that, instead of all offences being treated consistently and the punishment fitting the crime, the crime defines the punishment, regardless of whether it is fitting. This reduces the judicial role to nothing more than reading aloud; in my opinion, to bean counting.

Honourable senators, our judges are not bean counters. I believe that we have a highly-qualified judiciary, possibly the best in the world. One hears from some quarters that it may be a good thing to reduce judicial discretion. The implication is that judges are not hard enough on criminals. It is difficult to see how judges can be faulted for following the guidelines that they have been given. However, that guidance makes it absolutely clear that everything short of imprisonment must be considered.

(1640)

Apart from riddling the law with exceptions to established sentencing principles, thus rendering the law contradictory if not incoherent, there are a number of other serious drawbacks to mandatory minimum sentencing.

It is often said that one advantage of mandatory minimum sentences is firm and consistent sentencing. In practice, however, the possibility of a mandatory minimum sentence often results in charges being stayed or withdrawn, or a plea negotiation to a different or lesser charge because prosecutors consider a mandatory minimum to be too harsh. When this happens, decisions regarding appropriate punishment are transferred from the judiciary to the Crown in a process that is far less consistent and far less open to public scrutiny than any exercise of judicial discretion.

It must be remembered that judges do their work in public and that their decisions are subject to appeal. Honourable senators, that is not true of discretion transferred to the Crown. In many cases as well, mandatory minimum sentences give the accused no incentive to plead guilty, which inevitably results in longer and more costly trials.

Needless to say, to the extent that mandatory minimum sentences lengthen periods of incarceration, they also divert scarce public funds away from other, in my view, more useful crime prevention and law enforcement initiatives.

There is significant evidence from other jurisdictions that mandatory minimum sentences have had a disproportionate effect on minority groups. I reiterate that the sentencing principles found at section 718.2 of the Criminal Code require the court to consider that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. Mandatory minimum sentences completely negate these important considerations.

There is, moreover, no persuasive evidence that mandatory minimum sentences are effective in deterring crime. Several jurisdictions, including Michigan and the Northern Territory of Australia, have had negative experiences with mandatory minimum sentences. The negative impacts include an unacceptably high number of examples of fundamental unfairness, wrongful convictions and increased incarceration rates for ethnic minorities, Aboriginal people and women. There has been no discernible deterrent effect. Senator Cowan has already covered that issue.

There are several studies by various government commissions in this country to the effect that we already have problems with systemic racism and the enforcement of our criminal law. Mandatory minimum sentences exacerbate these trends and run directly contrary to the fundamental principles of sentencing I have outlined.

All the available evidence suggests that mandatory minimum sentences are an idea whose time has come and now gone. Public opinion polls universally show that reflexive public support for such notions as three-strikes-you-are-out sentencing dwindles when respondents are asked to consider the consequences in individual cases.

Jurisdictions that have tried mandatory minimum sentencing are now repealing or amending those punitive laws. Michigan, having tried mandatory minimums, has moved back to flexible, judicially-tailored sentencing as a result of several factors, including a shift in public opinion from strict sentencing as a result of the attention attracted by widely publicized examples of excessive punishment for minor repeat offences; and to a consensus among criminal justice professionals that mandatory sentences tend to increase prison populations even while crime rates are declining.

In brief, mandatory minimum sentences are yesterday’s response to serious crime. They have been tried and they have failed in jurisdictions not unlike our own. There is no cogent evidence that they reduce crime rates. Such laws do little to promote public confidence in the sentencing process because they too often result in notorious sentences that appear manifestly harsh and oppressive.

Honourable senators, we should not repeat mistakes others have made before us. We should, rather, learn from those mistakes.

In closing, I restate that the way to modify sentencing is to adjust the principles of sentencing, if necessary. It is not to introduce a patchwork or a mosaic of exceptions to our existing temperate principles, or to remove from judges the ability to do justice in each individual case.

Mandatory minimums directly contradict the existing principles of sentencing and inevitably and needlessly create injustice. They negate the very objectives they purport to promote.

 

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