Mandatory sentences are harmful gimmicks

Two courts, in two recent cases, sent an important message to the federal government about how justice is dispensed in the country, and the Conservatives would do well to pay heed.

In one case, the Ontario’s top court ruled unconstitutional the government’s mandatory minimum sentences for gun possession. In striking down a key part of the government’s law-and-order agenda, the Ontario Court of Appeal called the penalties “cruel and unusual.”

“No system of criminal justice that would resort to punishments that ‘outrage standards of decency’ in the name of furthering the goals of deterrence and denunciation, could ever hope to maintain the respect and support of its citizenry,” the Court of Appeal ruled.

In the second case, an Ottawa judge also rejected as unconstitutional the government’s mandatory victim fine surcharge. The Conservatives changed the law to double fines intended to help victims of crime, and removed the discretion of judges to waive the surcharge for offenders who cannot pay, but the court’s decision has resurrected a debate over whether the law goes too far.

The reaction of the government was to resort to court bashing. Justice Minister Peter MacKay accused judges of “making a mockery” of reforms and being “insulting” and “disrespectful” of victims. On the Court of Appeal decision, MacKay again reverted to form. “In the past, Canadians lost faith in the justice system when the punishment did not fit the crime,” he said. “It is our government’s commitment to restore confidence in the judicial system.”

We couldn’t disagree more. Yes, some crimes merit tough sentences. Some offenders should be kept away from society for as long as possible. What has created a problem is the Conservative government’s policy of turning mandatory minimum sentences into a political statement, and taking away the discretion of judges to impose sentences according to the evidence and how the punishment fits the crime.

The government’s mandatory minimum sentences are populist policies. They appeal to many Canadians, especially the ubiquitous Conservative “base.” But justice should not be about populism or the base. It should be about fairness. No one quarrels with the right of government to set the parameters and guidelines within which sentences can be imposed. But whether someone goes to prison for one or three years should be decided by judges hearing the evidence. It should not be decreed by politicians seeking votes.

When the government brought in its sentencing laws, serious questions were raised not only about their fairness and deterrence effect, but also about the one-size-fits-all approach to dispensing justice. In particular, many experts warned that stripping of the power and discretion to impose sentences that reflect the particular circumstances of each case, would end up undermining the law. That is what is happening now.

In the wake of the Ontario Appeals Court decision, MacKay said the government would consider its options. As the government mulls its next steps, it would be wise to limit mandatory minimums to the really serious and heinous crimes, and not use them as a political statement.