Justice. A variety of images come to mind when one ponders what this word means in Canada. For instance, it may conjure the rosy picture of an intrepid prosecutor who crusades the land, pursuing justice with all the fearlessness of Spaceman Spiff, the adventurous alter-ego of Calvin in Calvin and Hobbes. Or, maybe, the image of a frowning judge, peering over his spectacles, flowing robes and all, while speaking legalese and merrily banging his gavel. Or maybe, just maybe, a much more grotesque image comes to mind. One that shocks the conscience and raises the hairs on the back of your neck. Indeed, take a peek behind the curtain of the Canadian criminal justice system, and you will find a particularly disturbing reality that does exactly that. That reality is mandatory minimum sentencing. This form of sentencing reflects all of the worst elements of our criminal justice system bundled into one, and has destructive social consequences. In addition to being bad public policy, mandatory minimum sentences are also unjust, socially harmful, expensive, and – potentially – unconstitutional.
Current state of affairs
The ‘tough on crime’ agenda is increasingly becoming a central pillar of governments around the world. Its central aim is to use harsh punishments that put people away for as long as possible, which allegedly functions to deter crime. Governments often deploy this strategy for its political attractiveness. Pass draconian crime bills, jack up sentences, and voilà, the streets are now magically safe. Meanwhile, crime prevention, rehabilitation of prisoners, and dealing with the underlying causes of crime are all just funny ideas best left to academics and policy experts.
Mandatory minimum sentencing works in a very simple way. When someone reaches the sentencing process, the law replaces the judge in determining what an appropriate sentence should be. This form of sentencing thus forces a judge’s hand in administering a sentence for a time no less than a minimum amount stipulated by the law – that is even if, according to their judgement and experience, the judge believes that the guilty party deserves less than what is prescribed.
One of three forms of mandatory minimum sentences are typically employed. The first is the most rigid, as it allows no discretion for judges to go above or below the mandatory minimum. The second permits judges to go above the minimum, and the third – and most flexible – allows judges to go below in exceptional circumstances. In an interview with The Daily, Raji Mangat, a human rights lawyer and the author of a report for the British Columbia Civil Liberties Association (BCCLA) called “More Than We Can Afford: The Costs of Mandatory Minimum Sentencing,” explained that, “Among comparable jurisdictions, Canada is the only country that does not provide judges with any residual discretion to sentencing below a minimum sentence. Our minimum sentences are truly mandatory. Judges are forced to either sentence to at least the minimum, or to find the sentencing provision unconstitutional.” The BCCLA also found that the use of this practice is now at an all-time high in our criminal justice system, with “the number of offences attracting a mandatory minimum sentence jumping from 29 to 50 since 1999.”
In light of all this, one might think that we are in fact living in an unprecedented era of crime. One where danger lurks around every corner and where criminals roam free to wreak all manner of havoc on our unsuspecting and law-abiding citizens. Thankfully, the picture is quite different and not nearly as grim.
Bad public policy
In 2013, the Canadian Centre for Justice Statistics, a branch of Statistics Canada, reported that the crime rate (i.e., crime reported to police) is in fact at its lowest rate since 1972. This includes violent crime and a host of offences ranging from armed robbery to youth crime. The report also found that that the Crime Severity Index (CSI), which measures volume and severity of crime, has decreased for the tenth straight year and is 36 per cent lower than a decade ago. Though crime statistics are not always the be-all, end-all of determining the true level of criminality due to underreporting, it does indicate a general trend that crime is falling. Yet, amid the drop in crime rates, mandatory minimum sentencing has been skyrocketing.
Today, Canada is second in the world (surpassed only by the U.S.) for the number of offences that attract mandatory minimum sentences. Most recently, the 2012 passing of the Safe Streets and Communities Act (SSCA), a sweeping and extensive overhaul of Canadian criminal law, indicates that our criminal justice system is becoming even more punitive. This is a worrying development, particularly in light of the fact that mandatory minimum sentencing is a policy that does not work.
The most basic flaw with mandatory minimum sentences is that they do not achieve their stated purpose of reducing crime. A 2003 review looked at the tired question of whether harsher sentences reduce crime rates in Western populations. It concluded that there is no evidence that sentence severity has an impact on crime rates. Furthermore, there is evidence that long periods of incarceration actually increase the odds of previously sentenced people to commit another crime. After thirty years of academic study on the question, and mountains of evidence, the study also stressed that it must be accepted that the sentence-severity-crime nexus is a mirage, and that it is time to move forward in aggressively challenging its use in justifying bad crime legislation.
Legalized discrimination
Indigenous people and those who struggle with addiction are disproportionately impacted by mandatory minimums in what basically amounts to legalized discrimination. According to the BCCLA report, as of February 2013, 23 per cent of the federal prison population was Indigenous (First Nations, Métis, or Inuit), despite Indigenous people making up just over 4 per cent of the Canadian population. This drastic overrepresentation is even more dire for Indigenous women, who represent a full 33 per cent of all female prisoners.
This phenomenon is the result of racist and discriminatory colonial practices as well as ongoing discriminatory policies toward Indigenous people, which have led to low levels of education, employment, and income, as well as substandard housing and healthcare. Policies such as measures of control and assimilation, which were intended to terminate Indigenous culture, included the theft of land, non-fulfillment of treaties, forced relocation, attacks on traditional culture, systemic neglect and paternalism, the Indian Act, and an abusive residential school policy, which has caused intergenerational trauma. These are just a few acknowledged by the Royal Commission on Aboriginal Peoples.
Mangat explained to The Daily that Indigenous prisoners experience incarceration differently. “Aboriginal [people] experience prison disproportionately adversely than other offenders. An Aboriginal person is more likely to be classified as high risk, to be denied parole, placed in solitary confinement and in maximum security, and to be involved in use of force incidents and incidents of prison self-injury.” Professor Marie Manikis, who teaches criminal law at McGill’s Faculty of Law, explained to The Daily that “studies on systemic racism and discrimination have found that for similar offences, in similar circumstances, Aboriginal offenders are more likely to be sentenced more harshly by the criminal justice system.” She adds that for Indigenous people, “it was made clear that imprisonment should be the last sentencing option, and that alternative options need to be prioritized.”
Section 718.2(e) of the Canadian Criminal Code, which outlines principles of sentencing, requires judges to give “special attention to Aboriginal offenders.” However, the Canadian mandatory sentence regime prevents judges from giving the special consideration to Aboriginals, that they are required by law to give, during the sentencing process. In an interview with The Daily, University of Toronto law professor Kent Roach explained that “mandatory sentences by definition hurt and do not fit the circumstances of more sympathetic offenders including Aboriginal offenders.” Instead, the link between a history of discrimination and their criminality is conveniently erased, as Indigenous prisoners are quickly whisked away despite their unique circumstances.
Furthermore, mandatory minimum sentencing is increasingly capturing non-violent drug offences. This can have harmful consequences for those who suffer from addiction, such as increasing drug dependency. Brent, an individual who has been in and out of jail for the last decade, explained this concept in a report called “The human and social cost of mandatory minimum sentence” by Pivot, a Canadian legal society which attempts to fight poverty and social exclusion. “I’m a little surprised at the whole system. Didn’t they recognize addiction for what it is? Why is there never any intervention? Are they just happy giving them jail sentences and when the time is up, releasing them back to themselves?” He added that, “jail aggravates the situation and it reinforces itself. The addict starts believing they deserve it. After a while they believe they deserve to be jailed and there is no hope. It reinforces the addictive behaviour when there is no mechanism in place to help them with their disease.”
One can hardly imagine the impact on the 20,000 children whose mothers are torn away from them every year in Canada by the far-reaching hands of incarceration.
Crippling costs
Mandatory minimum sentencing carries even larger and more damaging human and social costs – for instance, on children and families. The BCCLA found that “when parents are incarcerated, their children are negatively affected not only in the immediate term due to the loss of a parent in their lives, but also in more complex and long-term ways that influence whether or not they are likely to become offenders themselves.” One can hardly imagine the impact on the 20,000 children whose mothers are torn away from them every year in Canada by the far-reaching hands of incarceration. Research by Shimica Gaskins for the Georgetown University Law Center suggests that these children are more prone to withdrawal symptoms, low self-esteem, depression, substance abuse, and aggressive tendencies. How do we measure the cost of the harm and pain that is caused? Are we prepared to pay it as a society?
Mandatory minimums have an especially harmful impact on family environments with female heads of household or a single mother. In their report, Pivot interviewed a woman named Jacqueline who explained that “one reason it is hard to go to jail is, if you are a parent, you get separated from your kids. They go to a social service foster home. So your kids get traumatized by that, it’s a life experience that can’t be reversed.”
In addition to the skyrocketing social costs, the economic cost of mandatory minimum sentencing is prohibitively high. The Parliamentary Budget Officer (PBO) analyzed a small portion of the SSCA and estimated increased costs of $156 million, of which the federal government will only pay $7.9 million, leaving already-indebted provinces to pay the rest. Due to the overwhelming number of other changes in the bill, in addition to the government refusing to provide the agency with information, the PBO concluded that the final costs of the entire act are difficult to predict.
There is, however, another cost. Not only is money wasted on a policy that doesn’t even reduce crime, but as the Canadian Centre for Policy Alternatives (CCPA) explains, money is also diverted away from policies that do efficiently diminish crime. The CCPA explains that these funds would more effective if they were spent on investment in employment, education, public housing, addictions treatment, and mental health support services – all social services thathave been proven to reduce crime.
Manifested injustice
Mandatory minimums also open the door to serious errors in the judicial process. The practice violates long-held Canadian principles of sentencing. The Canadian Criminal Code explains that sentencing and punishment must reflect two components: gravity of the offence and the moral blameworthiness of the offender. The Supreme Court recently clarified this in the case R. v. Ipeelee, explaining that a fair punishment is one that “reflects both perspectives on proportionality and does not elevate one at the expense of the other.”
Mandatory minimums, however, run roughshod over these principles. Manikis explained that “the removal of judicial discretion to the judge can be extremely harmful since it does not provide judges with sufficient latitude to assess the moral blameworthiness of the offender or specific circumstances of the offence and offender. Mitigating factors that are hugely important in sentencing might therefore not be given adequate weight which creates disproportionate and unduly harsh sentences.” Ultimately, what results is a highly punitive system that casts aside the unique individual circumstances of every offender and imposes punishments that rarely fit the crime.
Yet perhaps the vilest element of mandatory minimums is the distortion of the plea bargaining process. Plea bargaining is where the accused and the crown prosecutor reach an agreement for a lesser charge in exchange for an admission of guilt, thereby avoiding a trial. This process is distorted, however, when the accused is induced into pleading guilty to a lesser charge for the sole reason of avoiding the potential risk of receiving a much longer mandatory minimum sentence. The frequent occurrence of this process denies individuals justice and creates an extreme power imbalance between the accused and the state. Justice is denied because the lurking mandatory minimum ratchets up the cost of having their guilt determined in court. Individuals with children, unstable housing situations, or precarious job, simply cannot afford the luxury of having a trial and losing. So when they are shoved into a corner by the state, they face the inconceivable choice between admitting guilt to a charge without a trial or taking the risk of defending themselves knowing they could be slapped with a mandatory minimum.
The extreme power imbalance this creates is exactly how the system is designed to work. Osgoode Hall law professor and leading criminal lawyer Dianne L. Martin explains as much in a 2001 article for the Osgoode Law Journal. She writes that “fewer than 10 to 20 per cent of all cases proceed to a contested trial” and the legal argument in the Nur case adds that “nothing encourages guilty pleas more than the potential for a mandatory minimum sentence.” Michelle Alexander, author of the seminal book The New Jim Crow: Mass Incarceration in the Age of Colorblindless, also confirms this. Her sweeping study reveals that “the pressure to plea-bargain and thereby ‘convict yourself’ in exchange for some kind of leniency is not an accidental by-product of the mandatory sentencing regime.” She cites the U.S. Sentencing Commission, which explains that “the value of a mandatory minimum sentence lies not in its imposition, but in its value as a bargaining chip to be given away in return for the resource-saving plea from the defendant to a more leniently sanctioned charge.” All the while, this plea bargaining process eliminates the possibility having an individual’s guilt or innocence assessed before a court.
Finally, this process also transfers huge amounts of power from the hands of judges to crown prosecutors. Roach explained to The Daily that “for some offences, mandatory minimums can make the prosecutor the de facto sentencer and increase their leverage in plea bargaining.” Alexander explains that “prosecutors hold all the power as they can force people to plead guilty, and they routinely admit that they charge people with crimes for which they technically have probable cause, but seriously doubt they could win in court.” Moreover, Mangat explains that “this distortion raises the spectre of wrongful conviction, leaves constitutional safeguards in the hands of decision-makers whose conduct is nearly beyond review, and removes the sentencing process from open court to a plea negotiated behind closed doors.”
Indigenous people and those who struggle with addiction are disproportionately impacted by mandatory minimums in what basically amounts to legalized discrimination.
The future of mandatory minimum sentences
The Canadian Constitution can be quite a confusing thing. Understanding it fully is similar to playing Scrabble in a foreign language with a pack of rabid and highly literate talking hyenas: nerve-wracking, to say the least. For the most part, there are written and unwritten elements. For starters, the Canadian Charter of Rights and Freedoms is a central written document that forms part of the Canadian Constitution. Since 1982, it has guaranteed, protected, and limited the political and civil rights of all citizens. The Supreme Court of Canada is charged with enforcing the Charter, and the Court is empowered to overturn and declare unconstitutional Parliament laws.
For the most part, constitutional challenges of mandatory minimums have been rare. Most recently, however, opponents of the mandatory minimum regime have taken to challenging its constitutionality in the courts. Two recent Supreme Court cases, Charles and Nur, argue that these sentences violate section 12 of the Charter, the right not to be subject to cruel and unusual punishment, as well as section 7, the right to life, liberty, and security of the person. The Court has often had an ambiguous and high standard on what constitutes “cruel and unusual punishment,” thus making it hard to successfully argue for the repeal of mandatory minimums under section 12. In this way, the Nur and Charles cases are unique in that they directly ask the court to clearly define and lower the standard for section 12, as well as articulate how section 7 (life, liberty, and security of the person) is affected. Mangat explains that “the Nur and Charles cases provide the Supreme Court of Canada with a long-overdue and very important opportunity to clarify the legal analysis required to test the constitutionality of a mandatory minimum sentence. The Court has an opportunity in these cases to explain the relationship between mandatory sentencing regimes and proportionality in sentencing as the fundamental principle of sentencing.” With an opportunity to pave the way for future legal challenges, or possibly even to categorically strike down mandatory minimum sentencing, the court’s decision could be a watershed moment for criminal justice reform.
Moreover, legal experts seeking criminal justice reform are preparing other court challenges and eyeing other parts of the Charter to challenge this sentencing regime. For example, they argue that it violates equality rights (in section 15) because of its disproportionate impact on people who are already vulnerable and subject to prejudice. With the Conservative majority government in Ottawa, Parliament is increasingly becoming an obsolete arena for bringing about meaningful criminal justice reform. Instead, the battle over the future of mandatory minimum sentencing will take place in the long and slow grind of the court system.
Mandatory minimum sentences are a stark indicator of the crisis we are currently facing in the Canadian criminal justice system. Rather than build a system based on values of fairness, rehabilitation and compassion we are turning towards a model which calls for more and more punishment. Amidst a time of decreasing crime rates, successive governments have been increasing the use of mandatory minimum punishments. Yet, the evidence and experts have been screaming that this regime is not only bad public policy in that it fails to reduce crime, but also that it is socially harmful, expensive and unjust. All the while, under the guise of ‘law and order,’ our society’s most vulnerable are being rounded up and locked away. Still, the fight to roll back these harmful sentences has already begun. Though it may be a long and difficult one, riddled with obstacles and challenges, it is an important one. And for justice to truly mean something in this country, it is not a fight we can afford to lose.
