Pubdate: Wed, 30 Sep 2015 Source: Globe and Mail (Canada) Copyright: 2015 The Globe and Mail Company Contact: http://www.theglobeandmail.com/ Details: http://www.mapinc.org/media/168 Page: A14 Bookmark: http://www.mapinc.org/find?199 (Mandatory Minimum Sentencing) A MINIMUM AMOUNT OF COMMON SENSE Mandatory minimum sentences should be reserved for maximally grave crimes - murder, for example. Parliament should shape criminal law as a matter of well-proportioned policy, and minimums should be unusual. Even so, the courts - not least the Supreme Court of Canada - should give Parliament some leeway to craft laws that sometimes include mandatory minimum sentences. This month, an Ontario Superior Court judge had to decide whether to apply a six-month mandatory sentence for Duc Vu, a participant in a major marijuana grow-op. The Supreme Court has developed a doctrine saying that, if a fictitious "reasonable hypothetical" person - not the actually accused or convicted person before the court - might be unjustly treated by a mandatory minimum, the result would be forbidden by the Charter as "cruel and unusual punishment." The reasonable concept here is that grossly disproportionate sentences are bad. But the Charter doesn't actually say that. And in this case, there was no cruelty. Justice Bruce Durno, using the Supreme Court's reasoning, had to imagine whether a hypothetical person with a medical licence to grow, say, 100 marijuana plants, who exceeded his quota in a fit of hazy absent-mindness, would be too harshly punished under the law applied to Mr. Vu. But Mr. Vu, the non-hypothetical accused, who hid from police in a clothes dryer, had no such licence. This very real accused benefited from the entirely unreal hypothetical, even if, through yet another legal twist, he may still have to do another mandatory two-year minimum in a related matter. The comedy here is compounded, because medical marijuana has never been subjected to proper clinical trials in Canada, so it is hard to properly compare the gravity of medical marijuana infractions and the harm done by commercial-scale grow-ops, which are often accompanied by misappropriation of electricity. The next government should compile a catalogue of mandatory minimums. Most are not needed, and Parliament should repeal those covering less than truly heinous offences. But the courts have to be careful to leave the bulk of policy-making to Parliament, and not turn every question into a constitutional one. That would liberate Canadian judges from having to perform as contortionists. - --- MAP posted-by: Jay Bergstrom