The revolving door of mandatory minimums

Sparse media coverage has been allotted to the potential impacts of the Conservative government’s bill C-26, which would amend the Controlled Drugs and Substances Act by introducing new mandatory minimum sentences for drug production and trafficking.

Nor has this bill been widely recognized as part of this government’s now-silent war on the judiciary, or the U.S. war on drugs.

“By introducing these changes, our message is clear: if you sell or produce drugs, you’ll pay with jail time,” Justice Minister Rob Nicholson said in unveiling bill C-26, which had first reading in the House on Nov. 20, 2007.

And while the bill provides for some ongoing usage of drug-treatment courts, its mandatory minimums - the impacts of which remain unknown - disallow other forms of conditional or alternative sentencing.
About one-third of the 7,000 people convicted in Canada for drug trafficking every year receive conditional sentences - generally offenders considered to be smaller players in the drug chain.

The mandatory minimums in C-26 are also likely to have significant impacts on the aboriginal offender population, which is already overrepresented in Canada’s justice system.

Conditional sentencing became part of the Canadian justice system with the passage of Bill C-41 in 1995; since the enactment of s. 718.2(e) of the Criminal Code, courts are further directed to consider “all available sanctions other than imprisonment that are reasonable in the circumstances . . . with particular attention to the circumstances of aboriginal offenders.”

In the wake of these changes and of the seminal Supreme Court of Canada R. v. Gladue decision of 1999, many aboriginal offenders have received conditional sentences. Aboriginal peoples currently make up about 17 per cent of all inmates serving conditional sentences. 

Serious questions have already arisen pertaining to the use of mandatory minimums as a weapon in the American war on drugs.

Back in 1993, U.S Supreme Court justice William Rehnquist noted that mandatory minimum sentences tended to result in low-level criminals such as the “mules” in the drug trade ending up in prison, rather than those directing.  Retired Republican New York State senator John Dunne also concluded, “[Mandatory sentences] have not stemmed the drug trade. The only thing they’ve done is to fill the prisons.”

A study by the RAND Corporation concluded that mandatory minimum sentencing has done little to keep illegal drugs off America’s streets, and that the money spent locking up people for drug possession and trafficking would have been better spent on treating drug users.

So why does the bill fly in the face of logic and criminological science? Shouldn’t a government of any political stripe pass laws rooted in fact and reason, rather than ideology?
The truthiness of the purported drivers behind this legislation become increasingly apparent once one considers the two wars being fought beneath the radar of tough-on-crime rhetoric.

The proposed legislation includes a minimum jail term of six months for growing one marijuana plant to sell or give away; of two years in prison for the production of more than 500 marijuana plants; and an automatic one-year minimum for possession of cannabis and marijuana for the purpose of exporting, with no minimum amount of the drug.

There are also numerous aggravating factors enumerated in the bill which increase the mandatory minimum for given offences.

We can safely assume that this government will not be reintroducing decriminalization legislation for marijuana, much to the relief of the United States, which has been giving Canada flak for years over our soft approach, while we continue to play nice about their guns coming over the border. Not a  very fair trade, though I guess there’s no basis for a NAFTA complaint.

In addition to the American war on drugs, there’s the now more subdued Conservative war on the judiciary. They have by stealth focused on chipping away at judicial discretion through various criminal legislation bills.
The proposed legislation would strip judges of the ability to apply discretion for mitigating circumstances.  Is justice without context really justice?

This despite the fact that mandatory minimums have proven to fail in the U.S. They will require the building of more penal institutions, at great cost to the taxpayer, and are likely to lead to Charter challenges in already thoroughly choked provincial court systems.

Sure, the bill delivers on the throne-speech promise to get tough on drug traffickers and props up the party’s tough-on-crime reputation, but its real potential impacts have been ignored at our peril.

Addicted to pandering for votes, the Conservative party hasn’t provided adequate evidence to back up its criminal justice proposals. Let’s hope the political revolving door hits them on their way out at election time.

Michelle Mann is a Toronto lawyer, writer, and consultant. Her web site is, or e-mail her at [email protected]

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