It’s not often that political party leaders will keep the promises they have made to the public. However, in the case of mandatory minimum sentences, Prime Minister Trudeau and the Liberal party seem to have kept their promise for reform.
Although some legal experts argue that the delivery of the promise is long overdue, it’s important to remember that slow progress is better than no progress.
It is indisputable that changes to the criminal justice system and sentencing reforms are necessary. When the Conservatives were in power, they imposed and increased mandatory minimum penalties for dozens of criminal offences, thus taking away the discretionary powers of Canadian judges and thereby contradicting section 718.1 of the Criminal Code (section 718.1 instructs the court to take the degree of responsibility of the offender into account when handing down a sentence).
In addition to a clear. 718.1 violation, mandatory minimum sentences are also constitutionally deficient, as they do not allow for an individualized response to sentencing and are therefore disproportionate when applied to intellectually disabled persons for instance. It is a fundamental principle that sentences remain proportionate to the gravity of the offence and the degree of responsibility of the offender.
Yvon Dandurand, a criminologist at the University of the Fraser Valley, hypothesizes that the new legislation introduced by the Liberals will again provide flexibility to judges by creating special exceptions to some mandatory minimum penalties, while abolishing others.
Of course, the Conservatives will oppose any changes to mandatory minimums, as it is contrary to their agenda to “get tough on crime.” According to one MP, “If some [mandatory minimum sentences] are going to be getting a break in the next couple of weeks here, … obviously we’ll oppose that.”
Though any opposition is likely to be baseless, as the Supreme Court has already struck down two of the Conservative sentencing reforms last year.
Ultimately, the changes brought in by the previous Conservative government—in an effort to “get tough” on crime—are unjust, socially harmful, unconstitutional in some cases, and are overall bad public policy. Furthermore, they fail to achieve their stated purpose of reducing crime. Change to the system is therefore necessary, and will likely be accepted by Judges across Canada, including those at the Supreme Court.
Change to the system is also necessary in order to address the worsening problem of backlogs in the courts. This is a problem Canadians are very aware of following the Supreme Court’s ruling that imposed limits on the length of time an accused person can wait to stand trial. For more information on court delays, check out our previous blog posts by personal injury & criminal lawyer David Schell:
- Delays in our Ontario Civil Courts
- Solving Ontario Court Delays: Is Limiting Preliminary Hearings The Answer?
As mentioned above, slow progress is better than no progress, and the changes to be introduced by the Liberal government this spring are both highly anticipated and essential. Though there are some concerns as to how cautious an approach the Liberals will take regarding mandatory minimum reform (note the cautious approach being taken in medically-assisted dying for instance), in the long run, it is hoped that Canada will once again return to being a system that emphasizes discretion, rather than one that emphasizes rules.
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“This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”