Courts strike down mandatory minimum sentences introduced by Harper

Prison

It seem appropriate that just as the scientific community was gathering on parliament hill (the Death of Evidence Rally) to denounce the flat earth society that is trying to separate fact from policy in our government, a judge in Ottawa was questioning, in a roundabout way, the dearth of evidence that mandatory minimum sentences lead to lower crime rates or “safer streets” (to use the transparently political title of C-10, the omnibus crime bill passed by the Harper government during the last session of Parliament.)

Justice Paul Bellefontaine ruled last week that a man who had offered to sell a gun to an undercover police officer in a sting operation would not receive the minimum sentence of three years required by the criminal code, in accordance with the amendments to sentencing rules made by the Harper government in pursuit of their dumb on crime agenda. The man was not in possession of the weapon and probably couldn’t have delivered on his promise.

He was not alone in denouncing the provisions as being contrary to section 12 of the Charter of Rights and Freedoms, protecting against cruel and unusual punishment. In February another judge refused to impose a similarly draconian sentence on a extraordinarily boneheaded man who happened to be posing with a loaded gun in front of a webcam when police burst in on the scene looking for another suspect. It now seems certain that if either one of these cases were to make it to the highest court in the land the Supreme Court Justices would have no choice but to uphold these lower court judges in finding the new sentencing rules unconstitutional.

But the issue of treating criminals harshly is just the tip of the iceberg, legally speaking. The other problems this misconceived law creates are much broader in their implications, some of which have been addressed in these cases. Judge Anne Molloy declared that the discretion of judges was threatened by the Harper “law and order” agenda.

A huge role of common law judges traditionally has been to decide on the punishment, especially in cases where juries decide the guilt or innocence of a defendant in a criminal trial. Mandatory minimum sentences undermine this important judicial function while at the same time eroding the separation of powers between judiciary and legislative by tying the hands of judges.

Finally, there is the problem of there being a complete lack of empirical evidence for the deterrence argument to support the Harper policy of throwing the book at anyone who is found guilty of so much as a misdemeanour offense. As a matter of fact, most of the evidence seems to indicate that locking people up for any length of time leads to higher rates of recidivism (i.e. career criminals).

As Judge Malloy eloquently put it in her judgement, everyone wants to protect the general public from crime and prevent criminals from carrying out their nefarious schemes. “However, there is no tangible evidence that imposing a mandatory minimum does anything to actually accomplish that objective.”

Photo courtesy of Lorenzo Blangiardi via Flickr

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