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
Sentencing Commissions appear to be one way that the Federal Government intends to deal with the problems posed by mandatory minimums. Their approach appears to be based on other countries. The survey describes them as follows:
A number of countries including Australia, the United Kingdom, and the United States have an independent organization comprised of judges, criminal justice professionals, crime victims' advocates, and academics which undertake one or more of the following activities:
While I do agree that there should be more information given to the public about why sentencing is done the way it is, and in particular to victims and their families, the idea of a Sentencing Commission is troubling as a whole.
First of all, people who are not involved in a case and who represent the interest of one side should not be influencing the decision of the Court. Courts are independent, and to have an outside organization give “guidance” to judges about what sentences to impose for different offences directly interferes in the independence of the judiciary and undermines the administration of justice.
The composition of these Commissions is also of concern to me. “Criminal justice professionals” means police officers and prosecutors. It does not mean defence lawyers. “Crime victims’ advocates” are lobbyist groups that often advocate for tougher penalties, like MADD. They are people who think sentencing is about retribution, when the Criminal Code sets out particular considerations on sentencing that are more, well, noble. I worry that these Commissions proposed by Government will sway the judiciary toward sentences that do more to punish people than address underlying causes of criminality.
Essentially, the Criminal Code would set out a range of sentences for a certain type of offence. A judge would be free to sentence a person within this range, but could also go outside the range if exceptional circumstances exist.
In many respects, this is redundant. Through the operation of jurisprudence and sentencing decisions, we already have sentencing ranges identified by our higher courts for certain types of offences. For example, the BC Court of Appeal recently identified the appropriate starting point for the range for fentanyl trafficking offences. All it does is codify a process that is already in use in Canada. Moreover, an appeal from sentence lies in the fact that a sentencing judge deviated from the range without good reason for doing so.
Sentencing guidelines just become more of a barrier against the process of sentencing by taking that which is unwritten and putting it into stone cold terms. This causes barriers in sentencing for reasons described in the Court of Appeal fentanyl case: social circumstances can change and setting in stone a specific range may prevent the law from evolving with our society.
Sentencing guidelines, as proposed in the survey, would also require written reasons for departing from the range. This will make judges less likely to depart from the range and increases the demand and stress on the limited judicial resources.
A good example of this in practice is the sentencing court at 222 Main Street in Vancouver. This court is located in the heart of the Downtown East Side. There is a court that operates every day just to deal with the sentencing of offenders, where the sentencing will take fewer than twenty minutes. Some days, there are a hundred files on the list. Judges move quickly through submissions and sentences and craft sentences appropriate to the offenders, many of whom have been affected by poverty, addiction, and racism. If these people – who are less morally blameworthy given the hurdles they have had to overcome – have to wait for written reasons the efficacy of this court is totally undermined.
This also affects people who have not been released on bail. The sooner they start serving a sentence the sooner they can be released, particularly if the sentence is one that is to be community-based. Delaying for written reasons will only tend to incarcerate people for longer periods of time.
Increased Use of Diversion
Actually, I have nothing bad to say about this. Increasing the use of diversion in our criminal justice system is a fantastic approach.
Diversion keeps people from becoming entangled in the criminal justice system, and allows them to make their harm right through contribution to the community or apologizing to a victim or through self-improvement. Social science research increasingly shows that diversion programs are the most effective means of preventing repeat offenders as they require the offender to take responsibility but also to repair any harm they’ve done.
It is, of the proposals, the most effective means of addressing the underlying causes of criminality. Counselling, intervention in substance abuse, and community service increase acceptance of other people in society. And taking people out of a system that incarcerates them and labels them with criminal records also increases job opportunities, and puts people in the best position to help themselves contribute to society in a meaningful way.
But there is a catch. Diversion is limited in this applicability. It won’t cure the problems we have with poverty, systemic and institutionalized racism, and mental health and addictions issues. We need more effective out-of-court tools to manage these issues, and nothing suggested by the survey about sentencing reform appears to contemplate how that will be done.
Please take the survey and share your thoughts. While it appears the reform is already a fait accompli, seeking validation of a conclusion it has already reached, it is still important to be heard as the results of this will be part of the public record and can be used to challenge any ill-conceived ideas in court in the future.
Vancouver Criminal Lawyer with a focus on impaired driving, marijuana legalization and related issues, and immediate roadside prohibition defence.