After many years of evidence-free criminal justice policy pronouncements from Ottawa, any thoughtful contribution to the debate from the right side of the spectrum is more than welcome.
Those of us who are critical of the tough-on-crime agenda are a little tired of speaking into an echo chamber. We have waited in vain for defenders of the laws to counter the criticisms with arguments rather than edicts. I was hoping Lincoln Caylor and Gannon Beaulne’s paper, “A defence of mandatory minimum sentences,” would provide an articulate counterargument to well-known criticisms of federal sentencing policy.
I was disappointed. If this is the best defence available, it’s not surprising that Prime Minister Stephen Harper and his supporters have preferred talking points and sound bites to rational exposition. The problem begins with the title. Despite advertising itself as a defence of mandatory minimums, it only attempts to vindicate the propriety of mandatory minimums in the abstract and then goes on to chastise the essentially non-existent judges who brazenly flout them.
“If rational, proportionate mandatory minimum sentences are imposed, they promote justice,” wrote the authors.
“Judges who ignore the rule of law and seek to make decisions according to their personal views of justice in the face of clear legislation to the contrary assault the justice system and offend the duties of their office,” they continued.
The authors miss the point on both scores. Few people have argued that all mandatory minimums are per se problematic simply because they fetter a judge’s discretion. As the authors rightly point out, legislation constrains judges’ discretion in all kinds of ways, something that’s not inherently bad. And few would dispute that the mandatory life sentence for murder serves a legitimate denunciatory and symbolic purpose. But what about the three-year minimum for possession of a prohibited weapon or the one-year sentencing floor for growing between 200 and 501 marijuana plants?
Here, crucially, Caylor and Beaulne have nothing to say. Their defence of mandatory minimum sentences doesn’t even attempt to defend a single mandatory minimum the government has actually enacted. This is like writing a defence of having a minimum drinking age without bothering to weigh in on whether it should be 12 or 21. The lack of content robs the argument of all force.
The dominant criticism made against the Harper agenda has been that the specific mandatory minimums the government has actually enacted are harsh, pointless, and counterproductive. The minimums are based not on sound criminological evidence but on the gut feeling that some offenders are getting off lightly. Caylor and Beaulne provide an intellectualized gloss for this gut feeling but are either unable or unwilling to do the hard work of actually justifying any particular minimum sentence.
Even on the theoretical level at which they pitch their defence, their account is overly simplistic in its emphasis on legislative supremacy. The very same judges now commanded by the Criminal Code to impose minimum jail sentences for a range of offences must also respect the fundamental principle that the punishment must be “proportionate to the gravity of the offence and the degree of responsibility of the offender.” In addition, the law directs judges to ensure they don’t deprive an offender of liberty “if less restrictive sanctions may be appropriate in the circumstance” and take into account a range of statutory mitigating factors such as aboriginal status. To the extent that judges have bridled against mandatory minimums, it’s less because they don’t like Parliament telling them what to do than of a natural frustration at having to do contradictory things at once.
In my view, bad mandatory minimums tend to fall into two categories: those that are demonstrably harsh and vulnerable to a challenge under s. 12 of the Charter of Rights and Freedoms (as happened to the three-year minimum for prohibited gun possession in R. v. Nur) and those that are troublesome mainly because they take useful sentencing options other than jail off the table. Take the 90-day minimum for sexual interference. No court is likely to strike it down as cruel and unusual. But it means that a non-custodial option, like a conditional sentence, is categorically unavailable. The prosecutor’s choice to charge a different offence that doesn’t carry a mandatory minimum displaces the judge’s discretion to impose sanctions other than imprisonment. If the prosecutor chooses not to do that or if no such alternative offence is available, jail is a certainty. This is a good result only if you take the view that imprisonment is the proper sentence for every single person who commits offences such as sexual interference or marijuana production. That’s a very tough case to make, and Caylor and Beaulne don’t even try.
Caylor and Beaulne do offer up s. 12 as the ultimate bulwark against injustice in mandatory sentencing. But in doing so, they overlook this second category of bad enactments altogether. For those of us concerned about a move toward an Americanized, jail-first mindset — just as the Americans themselves are starting to move away from it — these low-level but increasingly pervasive minimum sentences are the most troubling of all.
For more about Caylor and Beaulne's paper, see "Lawyers offer contrarian view on sentencing laws."
Matthew Gourlay handles criminal and regulatory matters at Henein Hutchison LLP with an emphasis on appellate litigation. This is his first column after our previous A Criminal Mind columnist, Rosalind Conway, stepped down from the role following her appointment as a deputy judge of the Small Claims Court. Gourlay is available at email@example.com.