British Columbia’s attorney general should take steps to minimize the costs of federally mandated minimum sentences in the province.
The federal government is responsible for passing criminal law, including the setting of penalties for particular offences. The provinces are responsible for the administration of justice, which includes the prosecution of criminal offences.
There is also a division of responsibility for incarcerating people convicted of criminal offences. If the sentence is less than two years, the province is responsible for the cost of incarceration. For longer sentences, the federal government is responsible.
The current federal government has been busily adding ever more mandatory minimum sentences to the Criminal Code over the past few years. This has occurred in spite of substantial experience, most notably from the U.S., demonstrating that such sentences are entirely ineffective in preventing crime. They are also tremendously expensive and have the potential to effect substantial injustice by requiring sentences to be imposed that are excessive, given the circumstances of an offence or an offender.
The public expenses incurred as a result of mandatory minimum sentences include not only the cost of incarcerating people who would not otherwise receive jail sentences, but also the cost of conducting trials.
When an accused person pleads guilty, relatively little time and expense is incurred in terms of judicial, prosecutorial, police and legal-aid resources — to say nothing of the costs borne by witnesses, jurors and others. A guilty plea and sentencing might consume only a few minutes of court time. A trial of the same case might require days or weeks.
When judges are deprived of any discretion in sentencing, such that the sentence imposed following a guilty plea would be the same as what would occur in the event of a conviction following trial, the result is exactly what you would expect — more trials.
This is one of the reasons why, despite an ever-diminishing number of criminal cases, the amount of court time required is increasing.
Because of the divided responsibility for criminal justice in Canada, the federal government is able to make a political calculation concerning mandatory minimum sentences with only a limited concern for the financial implications.
In addition to the financial impact of trying and incarcerating people who pose no danger to the public, there is also a substantial human cost to mandatory minimum jail sentences.
A person convicted of growing more than five marijuana plants will now go to jail for no less than six months. Depending on how a charge is proceeded with, possessing a loaded handgun without the required permit now results in a minimum of three years in jail. These sentences, and many others, will now be imposed with no regard for the circumstances of the offence, or the personal circumstances of the offender.
While the divided responsibility for criminal law has disconnected the political and cost considerations associated with mandatory minimum jail sentences, it does afford a mechanism for avoiding the most obviously unfit sentences.
One important component of provincial Crown counsel’s responsibility is to determine what charges, if any, should be prosecuted. This decision has two parts.
The first is whether there is a substantial likelihood that someone would be convicted on the strength of the evidence gathered by police. The second consideration is whether proceeding with the charge would be in the public interest.
Most provincial attorneys general provide direction to lawyers acting as Crown counsel to guide them in exercising their discretion with respect to what factors ought to be considered when assessing whether it is in the public interest to approve a particular charge or not. In B.C., this direction takes the form of the Crown Counsel Policy Manual.
In several other provinces — including Alberta, Nova Scotia, New Brunswick, and P.E.I. — Crown counsel are directed in their policy manuals respecting charge approval to expressly consider whether it is in the public interest to prosecute an offence where a conviction would result in a sentence that would be disproportionately harsh or oppressive.
While individual Crown counsels in B.C. may well choose to take this into account when determining whether it is in the public interest to approve a particular charge, the listed considerations that would militate against approving a charge include whether a conviction would “likely result in a very small or insignificant penalty” but not whether a penalty would be disproportionately harsh or oppressive.
As the number of offences with mandatory minimum jail sentences increases, it would be prudent for the B.C. attorney general to provide express direction to Crown counsel that they consider whether a sentence would be disproportionately harsh or oppressive as a component of the public interest part of the charge approval process. Such a policy would reduce both the fiscal and human cost of mandatory minimum sentences.
Michael Mulligan is a Victoria lawyer.
