In 2012, the Harper government made a number of changes to Canadian criminal law. These changes introduces a suite of new mandatory minimum prison sentences; changed how credit for dead time in pre-sentence detention is calculated, restricted parole and access to pardons; imposed new victim fines for all offenses; and put restrictions on who can get serve their sentence in the community rather than going to jail.
The government claimed these changes were necessary to protect victims of crime and to keep our communities safe. But even a minor scratch at the conservative logic reveals that the law and order agenda is, out of step with Canadian values, fundamentally unfair, expensive, unnecessary, and ineffective.
Out-of-step with Canadian values
While a one-size-fits-all solution may seem appealing because of its superficial appearance of equality, Canadian sentencing law depends on a tailored sentence, and treating everyone the same is only fair if we are all the same and we are not.
The source document for criminal law in Canada is the Criminal Code of Canada
. This document sets out what constitutes a crime, what the range of punishment for those crimes are, and what factors judges must consider in sentencing. A central principal of this sentencing process is that the punishment should fit the crime- and to this end, the code directs judges to consider the circumstances of the offence (with both aggravating and mitigating factors), and of the offender. This is because in Canada length and conditions of sentence are anchored to an offender’s moral culpability, and many actions that are crimes can in part be excused by things like duress or mental illness.
There are also a number of penal goals (like rehabilitation, deterrence and denunciation) which must all be considered in crafting sentences, and as a result of Canada’s shameful over-jailing of aboriginal people, specific principals exist which require judges to the impact of consider Canada’s colonial history and its colonial present, when sentencing aboriginal people.
And while it is true that there have always been a handful of mandatory minimum sentences on the books, the explosion of new mandatory jail sentences and other compulsory fees, and a bar to tailored parole and pardons in Harper’s one-size-fits-all-jail-everybody policy, flies in the face of this tailored sentencing.. Because there is a one-size mandatory jail term, judges are practically prevented from considering an offender’s individual moral culpability, their circumstances, or their aboriginality when imposing sentences.
This not only works an injustice for offenders who commit crimes of desperation because of addiction or poverty, or who have faced intergenerational trauma, it moves us towards an American model of sentencing that even our neighbours to the south are stepping away from- party as a result of America’s dubious honour of having the largest population of incarcerate people on the planet.
Judges are expert front line justice workers, they hear all the evidence and they are best placed to consider the circumstances of the offender and the office and to craft a fair sentence. Judges should be allowed to craft fit sentences.
Unfair for vulnerable offenders
The result of this procrustean policy works a particular unfairness for our most vulnerable citizens. Harper’s law and order agenda is bad public policy for everyone, but for aboriginal people, for women and youth, and for people who come before the court as a result of their addictions, they offender the Canadian Charter of Rights and Freedoms.
Some offenders come before the court because their untreated addictions lead them to commit serial property crimes in order to buy drugs or to avoid violence from drug dealers. Drug use is a health issue and should be treated by doctors, not jail time. Evidence has shown that health conditions are not responsive to punitive measures. People who commit crimes of desperation—both drug debt and drug-seeking can be motivating factors for crime—are not offered lasting solutions to help them get well, and people with untreated drug addiction do not recover from their addictions in prison. At best prison is a short-term pause, and not a lasting solution. At worst, periods of incarceration, especially for youthful or first time offenders, actually encourages recidivism.
Under the new law and order approach to criminal justice, aboriginal people who would otherwise have had the conditions of their lives and their communities considered at sentencing are now dealt with as though Canada’s colonial history had not been a factor in bringing them before the court. Section 718.2(e) of the Criminal Code
and the Supreme Court of Canada case explaining this section, R v Gladue
, set out that aboriginal offenders are to be treated differently, and—if at all possible—prison sentences are to be avoided. Instead, a culturally appropriate approach where an offender can serve his or her sentence out in the community is preferred. The new policy of mandatory incarceration means aboriginal people living in remote communities are transported hundreds of kilometers from their communities and left without social support of the opportunity to heal along with their nations. Urban aboriginal offenders are sentenced as though they were not aboriginal, when culturally appropriate sentencing and programing might lead to better outcomes for them, and for their communities.
The law-and-order regime also works and injustice for female offenders. In marginalized communities women are responsible for the primary care of children, and often also play an essential role holding multiple families together. Female offenders in these situations would normally have been sentenced to community service or some other kind of sentence they could serve near home while continuing to care for their dependent children. Mandatory incarceration of women in these roles means children are routinely taken into the care of the Ministry. The loss of families is particularly difficult for female offenders in a way the BC Supreme Court has recently ruled to be unconstitutional in the case of newborn babies and very young children. Similarly, mandatory jail time for young offenders is a recipe for social disaster. For a government so openly committed to traditional family values, the result of the law and order agenda for families is nonsensical.
For these reasons, mandatory minimum sentences when applied to offenders from vulnerable groups can amount to cruel and unusual punishment and are unconstitutional.
Jailing a large segment of the population moves the cost of housing, clothing and feeding people onto public accounts. But it does so in a decidedly uneven way. It is the federal government that changes the law and requires jail for a staggering number of offences, but the cost of administering these sentences fall to the provinces through policing, court costs and the skyrocketing expense of building and maintaining prisons, and keeping people there for longer.
If a person is charged with a crime that carries a mandatory minimum sentence, there is almost no incentive for them to plead guilty- because the stakes are so high and the punishment is so onerous. Today about 10% of all charges go to trial, with people pleading guilty or charges being dropped for the other 90%. Pleading guilty was a factor look upon favorably at sentencing, but new punishments create no incentive to do so, so more offenders will opt for full trials, in the hope that the Crown will not be able to prove the case against them. These extra trials could cripple the already overburdened court system, and the cost of all of them is carried by the provinces.
Another insidious feature of mandatory minimums is that it throws wide the door for plea bargaining. Offenders facing lengthy trials and certain incarceration are much more likely to strike a deal with the crown to plead guilty to a lesser offence that does not carry a mandatory minimum sentence, even if the crown’s evidence against them is weak. This might seem like a deal to the offender, but what it does is send people to jail is cases when their guilt has not been proven in a court of law, and it moves discretion away from sentencing judges, whose sentences can be appealed, to crown prosecutors whose decision are not reviewable and cannot be appealed. This back door administration of justice should alarm Canadians.
Add to this the increased cost longer sentences because of the unavailability of early parole and for post-sentence monitoring
. A new piece of conservative legislation, Bill C-12 An Act to amend the Corrections and Conditional Release Act
is currently before parliament. Once it is passed more restrictions will be placed on who can access to parole—a measure that delays the reintegration of prisoners back into their communities, and increases the likelihood that they will reoffend.
According to a statistics Canada report released lest year, the crime rate in Canada is at its lowest point since 1972, in all provinces and for all types of charges. Despite some few high profile incidents, like the November 2014 Ottawa shooting, even violent crime and gun violence is down. The crime rate decline has nothing to do with federal policy, and there is no appreciable change in the rate since the 2012 changes.
The consensus from academics and criminal justice workers is that tough on crime initiatives like these have next to no effect on the crime rate. The conservative policy change is all about playing on voter fears, and inventing an American-style punishment-focused criminal justice system. This change while certainly populist, is at odds with the statistics, but is also a marked departure from the way Canadian sentencing law works.
We also know that mandatory minimum sentences do not actual deter crime (which as we saw, is declining on its own anyway). The idea is that if the public knows that there are harsher punishments in store for them, they will behave better for fear of jail time. This logic fails for two reasons. First, for communities where prison is an inevitability, the spectre of incarceration serves no deterrent effect.
Secondly, for people who come before the court as a result of their addiction or who for reasons of extreme poverty, mental illness, or the threat of violence commit crimes of desperation (a drug addicted person who is paid in drugs to commit a crime for example, or a starving person who steals food), this cost-benefit analysis that conservative policy makers imagine just doesn’t take place. Offenders in this situation are less morally culpable than offenders who engage in crime for pure profit, so the internal logic of Canadian sentencing demands that they should get a lesser sentence.
How Pivot is protecting constitutional rights in the face of Mandatory Minimum Sentences
These reports both say that mandatory minimum sentences in Canada have a disproportionate effect on women, on aboriginal people, and on people who come before the court as a result of their addiction.
This disproportionate effect goes so far that it is unconstitutional, because it can lead to sentences that amount to cruel and unusual punishment. Section 12 of the Canadian Charter of Rights and Freedoms guarantees everyone freedom from cruel and unusual punishment.
Last year, Pivot has intervened at the BC Court of Appeal in the Vancouver case R v Lloyd. Mr. Lloyd was a downtown Eastside resident subject to a mandatory minimum sentences for possessions for the purpose of trafficking of three controlled substances to which he was addicted. He was paid for his work as a trafficker in drugs. The mandatory minimum sentence applied to him because he had a prior drug conviction, which was also related to his addiction. A BC Provincial Court judge struck down the mandatory minimum sentence on the basis that it violated section 12 of the Charter for a reasonable hypothetical offender. The government appealed the judge’s decision, and the BCCLA joined Pivot in the intervention on appeal. The BC Court of Appeal declined to hear Pivot’s argument on the constitutional question and increase Mr. Lloyd’s sentence. Mr. Lloyd applied for leave to the Supreme Court of Canada. This leave decision could be issued any day. It is likely that Pivot will intervene if leave is granted.
In November 2014, Pivot intervened in the cases of R v Nur and R v Charles, both gun crime cases about mandatory minimum sentences. Our submissions were on the narrow issue of what the legal test for applying section 12 of the Charter should be. A decision in this case is expected any day.