Hope for reform of mandatory minimum sentencing

It was a long time coming, but a stir of legislative activity in Ottawa is finally restoring hope to opponents of mandatory minimum sentences. Unfortunately, it comes not from the Trudeau government, but from Senator Kim Pate, a long time prison reform advocate.

Senator Pate’s proposed Bill S-251 would give judges the discretion to depart from mandatory minimum sentences in appropriate cases. She is holding federal feet to the fire on what was, if not an outright campaign promise, a solid commitment that most mandatory minimums were headed for the legislative trash can.

In 1987, there were 10 mandatory minimums. Now, there are more than 70. Each was devised based on a wholly unproven belief that judges would otherwise sentence people too leniently.

The Supreme Court of Canada has recognized that they don’t deter crimes. We also know that innocent defendants are induced to plead guilty to a lesser offence to avoid the spectre of a harsh mandatory penalty. Alternatively, as was revealed in a recent Star series on clogged courtrooms, some other defendants feel compelled to fight to avoid a mandatory minimum sentence. Perhaps most troubling of all, there is clear evidence that mandatory minimums disproportionately harm Indigenous defendants.

Federal inaction is a betrayal of its avowed commitment to redress past wrongs against First Nations. Federal officials excuse their inaction on the basis that: “The issue is being studied.” But with a body of opposition that includes a commanding community of criminologists, inquiry commissioners, judges and lawyers, what’s left to study?

The government may, in fact, be hoping to duck controversy by letting the courts decide for them. If so, it reflects a depressing lack of leadership. Officials may also fear being labelled “soft on crime.” Yet, a 2017 federal survey found that 9 in 10 Canadians want the government to consider giving judges discretion not to impose mandatory minimum sentences.

Pate’s bill is an imperfect solution. Rather than repeal existing mandatory minimums, it would give judges discretion to depart from one in circumstances where it is unfit or unfair to the accused. The burden would still be on the accused to show that he or she warrants a lesser sanction. Nonetheless, a pragmatic stop gap measure is better than none at all.

The legal community is largely united in its belief that experienced trial judges can be trusted to take into account unique circumstances of each offence and each defendant.

Time is passing the Trudeau government by. It cannot be expected to resolve every complex problem and inequity, but it will be harshly judged in the next election if it cannot remedy the smallest and least defensible ones.