An alternative to mandatory minimums

A sentencing guideline would easily allow

judges to distinguish between the criminal thug

and the absent-minded

licensee

In its recent decision in R. vs. Nur, a majority of the Supreme Court found the Criminal Code’s three-year mandatory minimum sentence (MMS) for possession of a firearm to be “cruel and unusual punishment” and therefore a violation of Section 12 of the Charter. Justice Michael J. Moldaver, in dissent, argued that abandoning the MMS would “impede the goals of deterring and denouncing the unlawful possession of deadly weapons and keeping them out of the hands of those who would use them as instruments of intimidation, death and destruction.”

Writing for the majority, Chief Justice Beverley McLachlin took issue with Moldaver’s characterization of those who could be caught in the wide net of the provision. A violation could occur, she explains, when “a person who has a valid licence for an unloaded firearm at one residence, safely stores it with ammunition in another residence, e.g. at her cottage rather than her dwelling house.” Such an error is hardly worthy of three years in prison, she suggests. (Moldaver doesn’t disagree, but sees such prosecutions as very unlikely).

The dispute between McLachlin and Moldaver is typical of debates over MMS: one side demands stiffer, more certain sentences for offenders who threaten public safety and the other sees them as “blunt instruments that may deprive courts of the ability to tailor proportionate sentences at the lower end of a sentencing range.” There is, however, an alternative to these “blunt instruments” that might satisfy both the legitimate desire for reducing excessive judicial discretion and the need to allow for individualized tailoring of a sentence to arrive at a just result: sentencing guidelines.

Instead of simply giving an upper and lower cap for any given offence, sentencing guidelines offer the opportunity to structure judicial discretion by providing more specific sentencing ranges based on a variety of stated criteria. This system has been adopted in the U.S., where “sentencing grids” are used in federal law and in a number of states. The main axes of the grids are the seriousness of the offence and the criminal history of the offender.

England, by way of contrast, has eschewed sentencing grids and instead has created a series of steps for courts to follow in arriving at a sentence. The guidelines first require the court to establish the category of offence and then ascertain the recommended sentence range and starting point for that category. For example, a Category 1 domestic burglary with greater harm and higher culpability would have a sentencing range of two to six years in custody (and a starting point of three years in custody). The guidelines provide various factors that judges should consider when fine-tuning the sentence within the range, including the history of the offender. Other steps include considering reduced penalties for guilty pleas (with a suggested formula). Judges are expected to follow the guidelines unless doing so is not justified by the “interests of justice.”

We believe that the English approach of structured flexibility would be a better fit for Canada than U.S.-style grids, but either approach would provide a better system than what we have now — a hodgepodge of enormous judicial discretion mixed with the ad hoc additions of various MMS. In fact, the Canadian Sentencing Commission in the late 1980s recommended sentencing guidelines but no government — including the current one, with its intense interest in improving the quality of Canadian criminal justice — has seriously followed up on the recommendations.

Not only would the use of guidelines substantively provide fairer and more consistent results than our current system, opportunities for extra-parliamentary actors to participate in the process of developing sentencing policy would be increased. In the U.S. and the U.K., sentencing councils or commissions, composed of members of the criminal justice community (including judges) and lay members, help to fashion the guidelines among other duties. These other duties include gathering data on sentencing (and Canada’s existing data on sentencing is surely lacking), monitoring compliance, reviewing proposed government criminal justice initiatives and public education.

Of course, sentencing commissions and guidelines are not a panacea. The degree to which the recommendations of a sentencing council or commission should be insulated from parliamentary review or change may be controversial. While we may want to protect sentencing policy from partisan manipulation, sentencing policy is intensely political and involves value-laden choices about public policy, determinations that are squarely within the domain of our elected representatives. Issues of compliance could also arise, though a requirement to explicitly state exactly why any particular case falls outside the guidelines will likely inhibit judges from using any such exceptions regularly.

A guideline approach may also continue to raise some important questions regarding prosecutorial discretion. But we wouldn’t be having the disagreement between Justices Moldaver and McLachlin in R. vs. Nur: a sentencing guideline, rather than a MMS, would easily allow judges to distinguish between the criminal thug and the absent-minded licensee, even if the latter is deserving of some criminal punishment. Nothing about being tough on crime precludes being smart about it as well.

Dennis Baker, University of Guelph, Dept. of Political Science and the Criminal Justice and Public Policy Program. Troy Riddell, University of Guelph, Dept. of Political Science and the Criminal Justice and Public

Policy Program.