Mandatory minimum sentences are a mistake and tend to hamstring judges who are contemplating what punishment is appropriate, several Red Deer lawyers say.
They said on Tuesday that judges should have more discretion in cases where there could be an injustice by use of a mandatory minimum sentence.
“It displays an apparent lack of confidence in our duly appointed judges and Crown prosecutors,” Red Deer lawyer Kevin Sproule said.
There are tools in the Criminal Code of Canada to be used by the courts and the Crown as needed, Sproule said.
The system has worked well because it has “competent and qualified” judges.
He said mandatory minimum sentences tend to make the court process seem like it’s “machine-like.”
The Canadian Bar Association, at its annual conference last weekend, passed a resolution saying judges should have more discretion in dealing with sentencing.
However, Justice Minister Rob Nicholson said the federal government believes current sentencing guidelines are reasonable and appropriate.
“It’s a big mistake,” said former Red Deer chief Crown prosecutor and now defence lawyer Walter Kubanek. “The government thinks it knows better.”
He said the “three strike and you’re out” system in California, for example has been a major burden on taxpayers there.
“California can’t afford their educational taxes any more because they’re paying too much for prisons.”
Sproule said mandatory minimum sentences ignore “particulars that differ from case to case.”
He said it’s good to provide exemptions in mandatory minimums for such things as mental illness but there are other circumstances that might warrant some individualized treatment.
He said some judges may be inclined to impose a community-based or conditional sentence for certain sexual assault offences but that is offset because of the mandatory minimum law.
He said a judge may decide that because he can’t dispense a community-based sentence, he may hand the offender a sentence involving no jail time but simple probation.
“Simply brushing all those under the rug by imposing a mandatory minimum is unfair and unwise,” Sproule added.
Sproule is also fearful that there seems to be a move in Canada to go the “three strikes and you’re out” system such as exists in some American states. “It’s just resulted in overcrowding of their systems for very little return.”
Lorne Goddard, who has worked both as a Crown prosecutor and defence lawyer for 30 years, said mandatory minimum sentences sometimes reward “bad people” while some people who haven’t been in much previous trouble are treated the same.
“Over the years of doing this business, I have no complaints of how judges do a sentence,” Goddard said.
He said as a citizen he “wants to be as safe as anyone else and I look at the sentences a judge imposes on his own and the vast majority are appropriate,” Goddard said.
“Anytime a judge is going to put somebody in jail, they should struggle with the sentence and give it much consideration as they do here,” Goddard added.
Brad Mulder, another Red Deer lawyer, said mandatory minimums pose problems for accused “who have certain mitigating factors that the judge can’t take into consideration.”
“The Crown can still put in the aggravating factors that can drive the sentence up but it hamstrings the judge who can’t take into account those mitigating aspects,” Mulder added.
Kubanek said prison overcrowding leads to less chance of a prisoner being rehabilitated.
“We’re defeating the purpose of prisons by imposing mandatory minimum sentences,” Kubanek said. “There’s better ways to reduce crime other than putting them in jail.”
Kubanek said the government is “playing to a certain portion of the electorate that believes that jail really does provide useful rehabilitation opportunities for people and that’s just not true.”
Kubanek added that building more jails isn’t the answer in Canada because the crime rate has fallen steadily in the last 20 years.
“All the rest of the Western world is making efforts to reduce imprisonment — even the United States — because they’ve found that more imprisonment produces more crime,” he added.
He said the federal government’s plan to spend $9 billion building more jails “is bad for the community.”
He said it takes away from social programs that could benefit many more people, such as building more facilities to treat people with mental illnesses who shouldn’t be dumped into jails.