Not a day goes by when we do not read stories about the carnage that fentanyl is wreaking on our communities. The BC Court of Appeal has issued a stern warning for those who traffic in fentanyl: the starting point for sentencing is a jail sentence in the range of eighteen months. And given the evidence and attention about fentanyl deaths, it’s hard to cry foul at these guidelines.
As a result of the severe consequences of fentanyl trafficking, the BC Government has been repeatedly asked about what they are doing to address the situation. Some have suggested a pro-social approach, enhancing opportunities for rehabilitation for drug users. Others have pointed to studies that have shown that decriminalizing hard drugs actually leads to a decrease in deaths associated to those drugs. Others still think the answer is to arrest all the traffickers, round them up, and throw them in jail.
The Minister of Justice for Canada is currently conducting a survey about mandatory minimum sentences. On its face, this appears to be a small effort to obtain input about whether mandatory minimums are effective means of addressing criminal offences, and how to best allow judges to achieve the goals of sentencing.
However, the survey raises broader concerns about the efficacy of this proposed method. The options to choose from for appropriate sentences are limited, and the mechanisms proposed clearly show that Jody Wilson-Raybould has already made up her mind about how sentencing reform is to be achieved in this country.
The survey is, in my view, an effort to garner support for a process she has already decided to implement under the guise of engaging in public consultation.
I have concerns about what is apparent the Government wants to do. And I will outline them in this post. But I also want to implore you to take the survey, and have your views heard in the comment sections.
Here’s the link: https://surveys.ekos.com/ekos/cwx.cgi?_proj=07417SW&_lang=EN
Today we heard the first sentence to be given out in the Robert Dziekanski perjury trials. Constable Kwesi Millington and Corporal Monty Robinson were convicted of perjury, while their fellow officers Constable Bill Bentley and Constable Gerry Rundel were acquitted after trial. The Court sentenced Constable Millington to 30 months of jail time.
The sentence has surprised many, because it is a lengthy jail term for someone who previously had no criminal record or history of criminal behaviour. Many people have wondered why such a significant jail term was handed down in these circumstances, while arguably more serious offenders are given shorter jail sentences or even no jail.
As happens every so often, a Member of Parliament has brought a Petition to Parliament requesting stricter penalties for impaired driving offences which result in death. The one before Parliament at present is known as the Thomas Petition, after an individual who was killed by an alleged impaired driver. It isn't unheard of, and it's probably unlikely to have any impact.
Personally, I disagree with mandatory minimums for these offences. But I particularly disagree with mandatory minimums in excess of that set out for the impaired driving simpliciter offence in cases resulting in death or injury.
The mandatory minimum penalty for impaired driving is a $1000 fine and a one-year driving prohibition. In cases where there is a death, the potential exists for life imprisonment. It is rare to see cases where individuals aren't sentenced to some lengthy term of imprisonment in cases of death. I mean, sure, we all heard about the individual who received 90 days in Chilliwack. But those sentences are the exception to the rule. Remember Carol Berner? She received 30 months upon conviction. Her sentence was appealed as being disproportionate, and was upheld on appeal. The Supreme Court of Canada refused leave to appeal the conviction.
The point is that the Courts of this country take these cases seriously. There is no need, in my view, to tie the hands of judges with mandatory minimums when the sentencing process is treated with the utmost solemnity and seriousness. Nobody in the justice system takes impaired driving deaths lightly. Sentences like the one imposed in Ms. Berner's case are upheld on appeal because they are within the range of sentences given to similarly situated offenders.
Jail time does very little to "solve" the problem of impaired driving. Just look at PEI, which has an informal policy of 3-day jail sentences on first conviction for impaired driving. And yet, they have one of the highest rates of impaired driving of all the provinces. And that rate of impaired driving incidents actually increased after the policy was implemented.
The goals of the sentencing process, as set out in Section 718 of the Criminal Code are not very well-served. Sure, general deterrence may be met. But nobody who drinks and drives sets out to injure or kill people. It's a by-product of the unlawful act that is generally not punished by jail time, and so jail sentences in death cases have little to do with deterrence from what I can tell. If PEI is any example, jail doesn't keep people from drinking and driving. Maybe it's the simply fact that alcohol impairs judgment, (See also: any Vine video, ever) which means that people who choose to get behind the wheel aren't necessarily thinking about the consequences. I think it's important to keep in mind that intoxication is a defence to most criminal acts (a notable exception being, of course, impaired driving.)
And so to bind the hands of judges, who see cases similar and different, and individuals of all backgrounds, with mandatory minimum sentences for the more serious impaired driving offences is something that really strikes a blow against the interests of justice. Judges are trained and capable of considering the particular circumstances of an offender and determining the appropriate sentence based on the principles of sentencing and the offender's circumstances. I trust that Parliament recognizes that, which is why these attempts to create mandatory minimums each time have failed.
I would trust, in any event, that there would be a Constitutional challenge to such provisions, similar to the recent challenge to the minimum sentence provisions for firearms offences.
EDIT: After writing this post, I found this story about a 10-year prison term for a man convicted of impaired driving causing death. The article, I think, highlights why this sentence was much longer than the average. And that, folks, is sentencing principles at work.
Vancouver Criminal Lawyer with a focus on impaired driving, marijuana legalization and related issues, and immediate roadside prohibition defence.