One-size-fits-all sentencing doesn’t work
As the sun slowly sets on its minority government, the Trudeau Liberals have seen the light and moved to end one of the worst criminal justice measures ever devised — mandatory minimum sentences.
Coupled with a plan to rehabilitate the use of conditional sentences, typically using some form of house arrest, the government can only be applauded for tabling legislation that returns flexibility to what is inherently an exercise of judgment. Every defendant is different. Straitjacketing them into a one-size-fitsall sentencing system was a significant misstep from the start.
Should opposition parties now display the good sense to endorse Justice Minister David Lametti’s proposed reforms, judges will speedily return to what they do best: Encouraging rehabilitation for less blameworthy offenders, while reserving the harsh reality of prison for only those whose actions warrant it.
Weakened by a steady barrage of judicial decisions throughout the past decade that struck down several mandatory sentences for specific Criminal Code offences, the regime has been on life support for years.
Criminologists could find no evidence that a fixed minimum sentence did anything to deter crime — a logical enough finding, given that it is a rare defendant who researches sentencing ranges before engaging in criminal misconduct.
Most judges deplored the way mandatory minimums tied their hands, preventing them from considering the circumstances of an offence and an offender’s personal history. Academics and community leaders joined the defence bar in faulting mandatory minimums for applying disproportionately to lowincome and racialized offenders.
Accused persons, meanwhile, were forced to gamble on the outcome of a full trial in the hope of avoiding an onerous stretch behind bars. The demise of mandatory minimums will lead to more plea agreements, diverting precious judicial resources toward the backlog of other serious cases at risk of being tossed for unreasonable delay.
With the prison system’s horrifyingly high proportion of Indigenous offenders on a steady rise, sentencing options demand more, not less, flexibility. Across the country, Indigenous adults account for 30 per cent of prison admissions, but only approximately four per cent of the population. This is a six per cent increase over the previous year and an upward trend since the Harper government gutted the conditional sentence regime in 2012. A shocking 42 per cent of female admissions into jails are now Indigenous women — and the number is disgracefully climbing. The unavailability of conditional sentences has undeniably contributed to this over-representation, just as it has had its hand in the disproportionate number of incarcerated Black offenders.
Financial prudence alone would justify the reform package. It costs an estimated $116,000 a year to house one inmate in a federal jail. Could this money not be better spent, say, investing in programs that will keep at-risk youth out of the justice system in the first place?
Conditional sentences allow offenders, where warranted, to participate in community treatment programs and volunteer work or to maintain employment to support themselves and their families. This means that offenders can remain connected to friends and family, rather than families being torn apart.
Last, but by no means least, the new federal reform package includes measures to encourage more frequent use of creative sanctions to divert many drug possession cases out of the court system. This represents a giant step toward rightfully treating substance use as a public health issue.
It is also tantamount to a declaration that the so-called war on drugs has been an abject failure. At the cost of untold judicial and financial resources, tens of thousands of pointless drug convictions have hobbled young people embarking on careers, caused professionals to lose their licenses, created barriers to travel, and even led to deportations.
Enacting this long-awaited reform package before Canadians go to the polls would be a welcome development in justice policy. There are enough problems facing the country without the human and financial toll of penal measure that long ago outlived any delusion of usefulness.