The federal government is treading in dangerous waters with its “mandatory minimum” sentences for criminal offenders by directing judges how to do their jobs.
Mandatory sentencing shackles judges from using discretion. The “one-size-fits-all” sentencing guidelines imposed by federal legislation, and staunchly defended by federal Justice Minister Rob Nicholson, makes a mockery of the system. And it’s dangerously close to violating Canada’s Charter of Rights and Freedoms.
Nicholson recently came under fire at the annual Canadian Bar Association convention, where participants insisted mandatory minimum sentences are unfairly binding and counter-productive. They insisted a “safety valve” must be in place to deal with offenders on an individual basis. Judges must be allowed to sentence according to circumstances.
But the minister stood firm. It was reported he said the judiciary should not be in a position to circumvent sentences his government has devised as a response to public displeasure with crime and criminals.
“It is our job to give guidance to the courts,” Nicholson was quoted as saying. “We have mandatory sentences in this country for quite some time and the ones we have are reasonable and provide that guidance.”
Dead wrong. It’s up to the Supreme Court of Canada, comprised of this country’s top legal minds, to give that guidance. The government’s intrusion has seriously eroded the powers of that court by limiting its privilege of discretion. The top court must have the final say, not legislators.
The federal government has voided the human factor that’s paramount when considering an appropriate sentence.
There are mitigating circumstances to be considered: Is the offender suffering from a mental illness? Is the offender the victim of sexual or physical abuse as a child that would lead him or her to offend? Is the offender lashing out against the system as a desperate cry for help?
Lawyers and former Crown prosecutors in Red Deer have lashed out against mandatory sentences, reflecting frustrations voiced by the legal community nation-wide.
They say judges are being hamstrung when considering what punishment is appropriate. Judges, lawyers and prosecutors are tuned into the criminal element within their jurisdictions. The federal government most certainly is not. One shoe does not fit every person.
Mandatory sentencing “displays an apparent lack of confidence of our duly appointed judges and Crown prosecutors,” said local criminal lawyer Kevin Sproule. Mandatory sentences ignore “particulars that differ from case to case.”
Walter Kubanek, former chief Crown prosecutor in Red Deer, said, “It’s a big mistake. The government thinks it knows better.”
Kubanek is critical of government plans to build more jails at a cost of $9 billion. It’s “bad for the community.” It takes funding away from social programs that could benefit many more people, such as building more facilities to treat people with mental illness rather than dumping them in jails, he said.
The government’s firm stand is ripe for constitutional challenges under the Charter of Rights and Freedoms.
Section 9 of the Charter guarantees freedom from arbitrary detention or imprisonment. That means an offender must be protected from unlimited powers the federal government is imposing by stripping the powers of the courts to use discretion and plunking mandatory federal legislation in the judge’s chair.
There’s no room for negotiation; Section 9 demands flexibility.
Section 12 guarantees the right not to be subject to cruel and unusual punishment. Sending a mentally ill offender to a general prison population is cruel. That person belongs in a facility that can provide necessary treatment and understanding for effective rehabilitation.
Section 15 (1) of the Charter guarantees that every individual is equal under the law and must be protected from discrimination, including those with mental or physical disabilities. An offender suffering a mental disability, and sent to prison under the mandatory rules, is a victim of discrimination; that person’s circumstances are not being fairly addressed.
Lastly, Section 31 states: “Nothing in this Charter extends the legislative powers of any body or authority.” That means the federal government can’t dance around the Charter.
To coin an old phrase: “Justice must not only be done, it must be seen to be done.”
Justice cannot be seen in mandatory minimum sentences.
Rick Zemanek is an Advocate editor.