02/15/2012 11:10 EST | Updated 04/16/2012 05:12 EDT

How to Punish the Innocent at Maximum Cost

Mandatory minimums do not make anyone safer, though Conservatives insist on adding them to the crime bill. It is not as though criminals Google the potential consequence of an offence before committing it.


An Ontario Superior Court judge ruled Monday that imposing a mandatory minimum penalty in the case of Leroy Smickle, a man who was caught by police photographing himself on his computer while holding a pistol, is "cruel and unusual punishment."

Circumstances of the case before her would be "fundamentally unfair, outrageous, abhorrent and intolerable," and thus contravene the Charter's prohibition against "cruel and unusual punishment." This ruling is but the latest contribution to the mounting evidence that mandatory minimum penalties are a failed criminal law policy that indeed may be unconstitutional. Regrettably, the Conservative government insists on adding new penalties, such as those in its omnibus crime bill, C-10.

The appeal of mandatory minimums is easy to comprehend: They are sold as "tough on crime" measures that will deter criminals, and it seems counter-intuitive to believe otherwise. Yet, the international social science research and documentary evidence overwhelmingly conclude they are ineffective, unfair, injurious, do not deter crime, and, if anything, create more problems than they solve. Even here in Canada, the Department of Justice's own research from as early as 1990 concludes that, "...long periods served in prison increase the chance that the offender will offend again... In the end, public security is diminished rather than increased if we 'throw away the key.'"

To start, mandatory minimums do not necessarily target the most dangerous offenders who will already be subject to very stiff sentences because they have committed the most serious of crimes. As such, it is more often the case that less culpable offenders will be caught by mandatory sentences and subjected to extremely lengthy terms of imprisonment. Indeed, preventing this from occurring was in large part why the judge in the Ontario case struck down the mandatory minimum at issue.

The minimums at issue were introduced in 2006 by the Conservative government. I spoke against them at the time, saying "the vast preponderance of studies in every jurisdiction have concluded that mandatory minimums are neither a deterrent nor are they effective," and concluding that the legislation was "ideologically inspired, politically motivated and [an] ineffective approach to combating crime." The Government reintroduced these measures and passed them in 2008.

Moreover, as a 645-page report from the United States Sentencing Commission released this past November found, U.S. federal mandatory minimum sentences are often "excessively severe," not "narrowly tailored to apply only to those offenders who warrant such punishment," and not "applied consistently." They limit both prosecutorial and judicial discretion and, as the evidence demonstrates, mandatory minimums have a disproportionate impact on minority groups that already suffer from poverty, deprivation, and disadvantage.

In addition, studies demonstrate that fewer accused are likely to plead guilty if there is a mandatory minimum, adding to current strains on court resources. Indeed, the Canadian Bar Association has warned that with the new offences being added in C-10 and the likelihood of more cases going to trial, court backlogs will only increase, resulting perhaps even in criminals being set free if their right to a trial within a reasonable time is not respected. On this point, it is likely that challenges to the Constitutionality of mandatory minimum penalties will likely only strain our judicial resources further.

Simply put, mandatory minimums do not make anyone safer. It is not as though criminals Google the potential consequence of an offence before committing it, such that they are aware there is a mandatory penalty attached. Yet, the Government insists such penalties are not only necessary, but that their use must be expanded.

Regrettably, the Government has yet to produce a cogent argument for such penalties. If C-10 is enacted we will likely see more decisions such as the one earlier this week striking down minimum penalties, and the Government will spend a great deal of taxpayers' money to defend such cases -- this from a Government that claims to be seriously concerned about unnecessary spending.

Hopefully, the Conservatives will heed the warning of the judiciary, respect the evidence, and stop C-10 in its tracks, rather than enact legislation that is ineffective in its stated purpose and often unconstitutional in its effects.

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