Pubdate: Fri, 17 Apr 2015
Source: Victoria Times-Colonist (CN BC)
Copyright: 2015 Times Colonist
Contact: http://www2.canada.com/victoriatimescolonist/letters.html
Website: http://www.timescolonist.com/
Details: http://www.mapinc.org/media/481
Author: Michael T. Mulligan
Page: A11

MANDATORY MINIMUM SENTENCES ARE UNJUST

What is the minimum punishment for a person, with no previous criminal
record, who is convicted of growing six marijuana plants in their
basement? What about for an otherwise responsible gun owner who stores
her unloaded firearm safely with ammunition nearby, but who makes a
mistake as to where it can be stored?

Over the past few years, the federal government has been amending the
Criminal Code so as to create an ever-growing list of offences for
which there is a mandatory minimum sentence.

The political attraction of this approach is clear: It sounds tough,
can be explained in a sound bite and, in many cases, the increased
cost of prosecuting and jailing people is the responsibility of the
provinces. As a result, we are likely to hear more about this approach
during the next federal election campaign.

The political debate concerning criminal-justice policy is no longer
framed in terms of what would be right, fair or reasonable. Instead,
when a new criminal-justice policy is announced, often at a press
conference, the talking points include whether the proposed reform
will be tough and whether it will survive constitutional challenge in
court.

When courts are called upon to decide if a law is constitutional, they
are not assessing whether the law is reasonable or fair. They are
assessing whether it is so unfair as to be inconsistent with our
constitutional prohibition on cruel and unusual treatment or punishment.

In the case of mandatory minimum sentences, the test applied by the
courts is whether the mandatory minimum sentence is "grossly
disproportionate" either for the person being sentenced or in a
reasonable hypothetical circumstance.

A sentence that is "disproportionate" to the offence is
constitutionally permissible, while one that it "grossly
disproportionate" is not.

The effect of passing laws that impose an ever-increasing number of
mandatory minimum sentences is to replace the individualized
sentencing decisions of judges with mandatory sentences that start at
the threshold of the disproportionate.

In addition to the troubling fact that judges are being required to
impose sentences that are disproportionately harsh, mandatory minimum
sentences are ineffective at reducing crime. The Supreme Court of
Canada accepted the conclusion that the empirical evidence "is clear:
Mandatory minimum sentences do not deter more than less harsh,
proportionate sentences."

The mandatory minimum sentence for a person growing six marijuana
plants is six months in jail. Until this week, when the Supreme Court
of Canada found it to be "grossly disproportionate," the minimum jail
sentence for the gun owner, if charged by indictment, with storing
their gun and ammunition improperly was three years in jail.

In part because almost nobody would know what the ever-changing
sentencing regime is for different offences, they are ineffective at
reducing crime.

In fact, when we expend limited public resources prosecuting, jailing
and supervising non-violent first-time offenders who judges conclude
do not require lengthily jail sentences except for mandatory minimums,
we have less time and fewer resources to concentrate on truly
dangerous offenders who do need to be separated from society and
carefully supervised.

While we are fortunate to have an independent judiciary with the
constitutional authority to strike down the most excessive mandatory
minimum sentences, our society would be both safer and more just if
politicians would stop thinking about what's legally possible and
start talking about what's right.

Michael T. Mulligan is a Victoria lawyer.
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