Lawyers offer contrarian view on sentencing laws

Judges who creatively circumvent mandatory minimum sentences should perhaps “resign and run for Parliament,” says the co-author of a new paper in defence of mandatory minimum sentences.

Following reports of judges who have found ways not to apply mandatory minimum sentences or victim surcharges, two Bennett Jones LLP lawyers say a judge’s role is to uphold laws deemed to be constitutional.

“If it is constitutional, then it must be upheld and to the extent that you want the law changed, it is for Parliament to do that and it’s not for judges to try and circumvent the law,” says lawyer Lincoln Caylor, one of the authors of the paper, “Parliamentary restrictions on judicial discretion in sentencing: A defence of mandatory minimum sentences,” published by the Macdonald-Laurier Institute.

“If judges think the law should be changed and it is constitutional, they should resign and run for Parliament,” he adds.

“Judges who ignore or otherwise circumvent mandatory minimums act contrary to the office that they have sworn to uphold,” the authors argued in the paper.

“Ignoring mandatory minimums is no more acceptable than would be ignoring mandatory maximums.”

They continued: “Today, the public would react with outrage if a judge purported to impose a death sentence.
However, setting aside the obvious difference, imposing such a sentence would be no different from a constitutional law perspective than refusing to apply a mandatory minimum that passes constitutional muster.”

Some Ontario judges have recently found ways to work around legislation that takes away their discretion to waive victim fine surcharges by sometimes giving criminals up to 50 years to pay them and, in some cases, not requiring them to pay at all.

Like the judges who are reticent to impose the new laws, many observers have lamented crime legislation that curtails judicial discretion. But Caylor and co-author Gannon Beaulne say: “Judicial discretion in sentencing has never meant an unfettered entitlement to impose any sentence deemed appropriate by a particular judge.”

“Critics who are against mandatory minimums generally say that they are against mandatory minimums in principle because they feel a judge should have all the discretion,” Caylor tells Law Times.

“Our view and the thesis of the paper is that mandatory minimums, when properly set out and [they] do limit judicial discretion, [the court is] still able to set an appropriate sentence.”

Mandatory minimum sentences create consistency and help people understand exactly what the repercussions for a certain crime are, the Bennett Jones lawyers argue.

“Mandatory minimums reflect the lowest possible sentence for the least culpable offender,” they wrote in their paper.

But to the president of the Criminal Lawyers’ Association, that argument neglects things like mental-health issues sometimes affecting the perpetrators of a crime.

“People who get into these crimes don’t expect to be caught,” says Anthony Moustacalis, noting they aren’t likely to weigh the consequences of their actions.

“The majority of people who get in trouble — 80 per cent — either have drug or alcohol or mental-health problems and so those people, I would argue, need a broader approach toward their treatment and punishment than simply imposing mandatory minimums,” he notes.

Caylor says the paper isn’t defending the appropriateness of the mandatory minimum sentences set by Parliament but is simply emphasizing judges’ obligation to uphold them. If judges see the mandatory sentences as unfit, it’s up to them to declare them unconstitutional, the paper notes.

In a recent case, that’s exactly what Ontario Court Justice Robert Beninger did. In Tinker v. The Queen, he found that a set victim surcharge without regard to an offender’s personal circumstances is unconstitutional.

“I find that the mandatory imposition of the surcharge does negatively impact the security of the person for the applicants before the court. Without regard to their personal circumstances, the surcharge must be paid within a 30- or 60-day time period. If the surcharge is not paid as required, the person in default is clearly informed that they are subject to serving a jail sentence,” he wrote on April 23.

“The Crown argues that a person has the option of obtaining extensions of time to pay the surcharge. I do not find that argument persuasive. Applications for extensions of time to pay prolong a court proceeding. They require additional resources within the court system. In my view, an extended enforcement procedure for a $100 surcharge, targeting a person who has no ability to pay, is not a proceeding which enhances the criminal justice system in the eyes of the community.”

The judge then declared s. 737(1) and s. 737(2)(b) of the Criminal Code to be “of no force and effect.”

“The s. 737 amendment which removes judicial discretion in considering a fit sentence in all cases, without reference to sentencing principles as set out in s. 718, is a broad brush punishment which casts the widest possible net upon persons being sentenced in the criminal justice system,” wrote Beninger.

Moustacalis says the paper by Caylor and Beaulne makes it seem “natural” that Parliament would pass legislation and the courts would find it unconstitutional. Although it’s within judges’ jurisdiction to make that finding, Parliament “should be trying to create laws that are constitutional,” he says. To see things otherwise is to “ignore Parliament’s responsibility,” he adds.

In their paper, Caylor and Beaulne argue that critics who rebuff mandatory minimum sentencing laws should instead “focus on the more defensible position of attacking Parliament’s conclusions about the moral status of behaviour constituting the elements of a given offence.”

Parliament isn’t infallible in its decisions about mandatory minimums, but people could say the same about judges, according to the authors.

“After all, Canadian judges have certainly reached inappropriately severe (or, more frequently, inappropriately lax) sentences as well,” they noted in the paper.

“Through statutes, Parliament speaks with a single voice. Its errors thus have the virtue of being applied consistently until they are struck down. Conversely, individual judges exercising discretion are more likely to create uncertainty and unpredictability with their errors.”

But Moustacalis doesn’t feel judges have more frequently arrived at overly lenient sentences.

“If they are, the appellate courts have corrected that,” he says.

For more, see "Judges resisting stiff crime laws."

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