What is the minimum punishment for a person, with no previous criminal record, who is convicted of growing six marijuana plants in their basement? What about for an otherwise responsible gun owner who stores her unloaded firearm safely with ammunition nearby, but who makes a mistake as to where it can be stored?
Over the past few years, the federal government has been amending the Criminal Code so as to create an ever-growing list of offences for which there is a mandatory minimum sentence.
The political attraction of this approach is clear: It sounds tough, can be explained in a sound bite and, in many cases, the increased cost of prosecuting and jailing people is the responsibility of the provinces. As a result, we are likely to hear more about this approach during the next federal election campaign.
The political debate concerning criminal-justice policy is no longer framed in terms of what would be right, fair or reasonable. Instead, when a new criminal-justice policy is announced, often at a press conference, the talking points include whether the proposed reform will be tough and whether it will survive constitutional challenge in court.
When courts are called upon to decide if a law is constitutional, they are not assessing whether the law is reasonable or fair. They are assessing whether it is so unfair as to be inconsistent with our constitutional prohibition on cruel and unusual treatment or punishment.
In the case of mandatory minimum sentences, the test applied by the courts is whether the mandatory minimum sentence is “grossly disproportionate” either for the person being sentenced or in a reasonable hypothetical circumstance.
A sentence that is “disproportionate” to the offence is constitutionally permissible, while one that it “grossly disproportionate” is not.
The effect of passing laws that impose an ever-increasing number of mandatory minimum sentences is to replace the individualized sentencing decisions of judges with mandatory sentences that start at the threshold of the disproportionate.
In addition to the troubling fact that judges are being required to impose sentences that are disproportionately harsh, mandatory minimum sentences are ineffective at reducing crime. The Supreme Court of Canada accepted the conclusion that the empirical evidence “is clear: Mandatory minimum sentences do not deter more than less harsh, proportionate sentences.”
The mandatory minimum sentence for a person growing six marijuana plants is six months in jail. Until this week, when the Supreme Court of Canada found it to be “grossly disproportionate,” the minimum jail sentence for the gun owner, if charged by indictment, with storing their gun and ammunition improperly was three years in jail.
In part because almost nobody would know what the ever-changing sentencing regime is for different offences, they are ineffective at reducing crime.
In fact, when we expend limited public resources prosecuting, jailing and supervising non-violent first-time offenders who judges conclude do not require lengthily jail sentences except for mandatory minimums, we have less time and fewer resources to concentrate on truly dangerous offenders who do need to be separated from society and carefully supervised.
While we are fortunate to have an independent judiciary with the constitutional authority to strike down the most excessive mandatory minimum sentences, our society would be both safer and more just if politicians would stop thinking about what’s legally possible and start talking about what’s right.
Michael T. Mulligan is a Victoria lawyer.