A Values and Evidence Approach to Sentencing Purposes and Principles

Mandatory Minimum Sentences

There is sufficient evidence to know that mandatory minimum sentences do not accomplish what they are said to accomplishFootnote 43 (reduced crime) and they create a series of other problems in the sentencing process. As America’s leading sentencing expert, Michael Tonry, wroteFootnote 44, “Experienced practitioners, policy analysts, and researchers have long agreed that mandatory penalties in all their forms… are a bad idea” (p. 65). That “is why nearly every authoritative nonpartisan law reform organization that has considered the subject… [has] opposed enactment, and favoured repeal of mandatory penalties” (p. 66). Three justifications are offered for mandatory penalties: evenhandedness, transparency, and the prevention of crime. None withstands careful scrutiny. Tonry points out that “Mandatory penalties often result in injustice to individual offenders. They undermine the legitimacy of the courts and the prosecution process by fostering circumventions that are wilful and subterranean. They undermine… equality before the law when they cause comparably culpable offenders to be treated radically differently” (p. 100). And 40 years of increasingly sophisticated research shows they do not have deterrent effects.

Nevertheless, as we know from the Harper decade, mandatory minimum sentences are politically popular.Footnote 45 And Canada has, over the years – mostly during the Harper years – accumulated a fair number of them. The question is what to do now. One suggestion would be to deal with them as part of the current Section 718.2 and to add a provision that suggests, in effect, that all mandatory minimum sentences are presumptive, not mandatory. Judges who find it necessary in terms of the essential principles of sentencing to depart from the mandatory minimum would have to give reasons for the departure. Legislation could specify the criteria that would have to be met in order to ‘escape’ the mandatory penalty. As pointed out earlier, such an approach would be consistent with Canadian views of what is appropriate.

It is worth pointing out that a ‘first cousin’ to mandatory minimum sentences would be the requirement that the sentences for certain offences be served consecutively. I haven’t reviewed the Criminal Code and related statutes to determine the number of required consecutive sentences, but some of them can easily be seen as having the possibility of either creating peculiar sentencesFootnote 46 or interfering with proportionality when looked at across offences.

In this context, judges are, of course, required to consider not only the sentence being handed down for each offence, but in cases of multiple offences, they must also consider the totality of the sentence to ensure that it is not disproportionately long.Footnote 47 This can easily conflict with a requirement of consecutive sentences. Judges could, of course, avoid the “unduly long” sentence by reducing the length of one or more of the consecutive sentences. That, however, would make the individual sentences look inappropriate even though the ‘total’ sentence might look appropriate.

But the uneven requirement of consecutive sentences, itself, creates problems. Consider the following case: someone breaks into a house. As he is leaving the house, a police officer happens to arrive with his police dog and in trying to capture the offender, the officer’s police dog is injured by the burglar. The (new) offence of injuring a law enforcement animal while it is aiding a law enforcement officer in carrying out that officer’s dutiesFootnote 48 states that the sentence for this offence and any other sentence arising out of the same incident must be consecutive. So those sentences – the break in and the injury to the police dog – get consecutive sentences automatically. On the other hand, if the offender committed aggravated assault against the home owner in escaping, there would seem to be no statutory requirement of a consecutive sentence. If sentencing reflects Canadians’ values, it would appear to me that this requirement, like mandatory minimum sentences, creates inequities.

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