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.
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MAP posted-by: Jay Bergstrom