07 October 2015

#67 No Judgment on Sentencing

Another darling of the “law and order” crowd: mandatory minimum sentences, because we can’t trust judges to deliver the kind of justice we expect. Leaving aside the “trust the judges” talk around the government’s “terrorism” and “citizenship” legislation, it is clear they have no such trust in matters of the criminal law. They are being shown, however, that their attempts to impose draconian penalties without allowing judges to exercise discretion depending on the circumstances of the case, just won’t fly past the Charter protections against unreasonable punishment.

At a time that crime rates in the country are continuing a decades-long downward trend, it seems that all we hear from the government is that we should be afraid — very afraid — because the criminals are out to get us and the justice system is just turning them out on the streets to commit more crimes. This approach to governing requires an attack on the statistics that would show that the trends are in the other direction (reduce funding for agencies that produce that information), and a sensational case or two to “prove” to all Canadians that the bad guys are hiding behind every bush and the judges might as well be handing them weapons. Nothing could be further from the truth.

The usual way that our criminal law works is that Parliament indicates the relative importance of different kinds of crimes by prescribing a maximum penalty, and judges consider the complete circumstances of the crime for which someone has been found guilty in imposing the sentence. A more serious situation gets a more serious penalty, a repeat offender showing no remorse gets a harsher penalty than someone who slipped up and expresses the desire to make amends.

The problem the government runs into is that, in light of the Charter, the courts have a problem with the disproportionality of the mandatory minimum sentences in the absence of the possibility of judges adapting them to the circumstances of the case. Unfortunately, there seems to be no maximum on the number of times the government will try to look tough by enacting this kind of law in the face of them being declared unconstitutional one after the other.

Further reading here (et ici). 

A mandatory
sentence for electoral
fraud might work for us

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