The Mandatory Minimum Fairy Tale

October 23, 2019

In recent years, there has been a rise in the use of mandatory minimum sentences around the world and Canada is no exception. Mandatory minimums are codified ranges that apply to certain offences as deemed necessary by parliament. In Canada, mandatory minimums can apply to certain offences, but they can also apply to certain types of offenders, such as repeat violent offenders or repeat impaired drivers (1). Generally, the purpose of mandatory minimums is based on goals that are utilitarian in nature. Such goals focus on “changing individual offenders’ mindsets when choosing whether or not to engage in behaviour that would trigger a mandatory sentencing response” (2), making denunciation and deterrence the main focus. Mandatory minimums have been a contentious subject of debate, with some arguing for their necessity while others doubting their effectiveness.

 

Proponents of mandatory minimums argue that they are meant to “create certainty in sentencing” while better reflecting community standards (3). A pro-mandatory sentencing argument is that they are the answer to “public fear of criminal victimization and the public’s call for harsher sentencing” and that they function as a symbolic message to the public, that public safety is a paramount concern (4). They additionally signify the increased denunciation of certain forms of behaviour that are at the forefront of social concern, such as impaired driving. An additional argument for mandatory minimums is that such “policies enhance sentencing equity” by removing discretion from judges (5). Mandatory minimums proponents often argue that a reduction or elimination of judicial discretion provide sentencing that is fairer and more uniform, and it restrains “judge’s abilities to tinker with sentencing outcome”, particularly where a judge wants to impose a more lenient sentence (6). For supporters of mandatory minimums, reduced judicial discretion is a positive attribute of such policies as it imposes a standard that is argued to be more socially acceptable and less individualistic.

 

Critics of mandatory minimums, interestingly enough, lean on a lot of the same points, arguing that these are undesirable attributes or outcomes. Besides the argument that mandatory minimums are unconstitutional as they have the potential to lead to cruel and unusual punishments, critics also say that mandatory minimums have the potential to result in arbitrary outcomes. Furthermore, they argue that a reduction of judicial discretion is an issue, not an asset, of mandatory minimums as it subverts “the traditional role of the courts” (7) and while it may promote more uniformity, it does not result in more equality. More importantly, however, critics argue that mandatory minimums fail to increase general or specific deterrence and do not increase public safety (8). Furthermore, while discretion may be reduced by implementation of mandatory minimums it is not removed but rather displaced from judges to other actors within the criminal justice system such as police and prosecutors who “utilize their discretion more carefully when deciding whether to arrest and/or to prosecute individuals in cases that trigger mandatory sentencing penalties” (9). Finally, critics argue that such policies disproportionately impact marginalized communities, that they are inflexible, and expensive (10).

 

It is obvious that there are many arguments for and against mandatory minimums but my main concerns are with the use of mandatory minimums as political tools to bend the criminal justice system into something that more closely resembles not what society needs it to be but what politicians think society wants it to be. This is done through both wielding it as protective tool and through demonizing judicial discretion as the whimsical wish-fulfillment of individual judges as opposed to the structured, specialized decision-making process that it is.

 

The main thing every law student very quickly learns – and then struggles to impart upon every person that ever throws a hypothetical at us – is that the legal system is nuanced. Nuance is the thing that most often prevents me from answering a question that starts with “what if…” to the satisfaction of many of my friends outside of law school (that, and the fact that I am not a lawyer, of course). And it is nuance upon which judicial discretion is built: this idea that these highly specialized professionals are better placed to make decisions through the thorough consideration of jurisprudence, legislation, common law, and the specific facts and circumstances of each case. While it is naïve to argue that judges are not affected by personal biases or even moods, it is equally as destructive to argue that, where it not for codified mandatory minimums, judges would run amok and make decisions based on personal whims. In sentencing, judges must lean on such principles as proportionality, restraint, and parity, and take into consideration the different sentencing options available for different legal circumstances, different offenders, and different types of criminal offences (11). It is these nuances, not personal whims, that often result in variability in sentencing and even here, discretion is restrained, as judges are required to look at precedent and statute to ensure that sentencing is consistent. If, after all of these checks and considerations, sentencing is unsatisfactory to either the accused or the Crown, appeal courts are able to “overturn sentences when they are deemed improper” (12). Judicial discretion is part of our legal system because it was deemed necessary for decision makers to be able to take in all of the nuance of a case and make an informed decision based on law, facts, and precedent. Mandatory minimums, on the other hand are a “one-size-fits-all model” with none of the nuance and all of the grace of a round peg slammed into a star-shaped hole.

 

What’s worse is that mandatory minimums are often the result of politically charged policy, not informed, evidence-based law making. David Paciocco writes that “minimum sentences are enacted by governments not because of a commitment to sound justice policy but rather to create political advantage by taking ‘tough on crime’ measures” (13). Ferguson and Berger go even further by claiming that “the government’s reckless use of mandatory minimums in the name of being ‘tough on crime’ and ‘creating safer communities’ is nothing short of a crass political lie” (14). Another significant concern with Canada’s use of mandatory minimums is the fact that Canada has no “safety valve”, no exemption clause, no statutory discretion given to judges to not impose mandatory minimums, and now, post R v Ferguson, no constitutional exemption (15). When compared with many other nations across the world, Canada falls short in terms of its views and uses of mandatory minimums. Many other countries such as New Zealand, Australia or England, have very few or no mandatory minimums; many such as Switzerland, Belgium and the Scandinavian countries have presumptive, not mandatory, minimums; while others such as Germany or even China and Russia have broad exemptive clauses (16).

 

Canada’s rigid adherence to the use of mandatory minimums, in the face of evidence of the failure of such policies is concerning and unfortunate.

 

 

  1. Canada, Research and Statistics Division, (Ottawa: Department of Justice, 2016) at 5.

  2. N. E. Fearn, “Mandatory Sentencing” in William J. Chambliss, ed, (Thousand Oaks, CA: SAGE Publications, 2011) 159 at 162.

  3. Anthony Gray, “Mandatory Sentencing Around the World and the Need for Reform” (2017) 20:3 New Crim L Rev 391 at 392.

  4. N. E. Fearn, “Mandatory Sentencing” in William J. Chambliss, ed, (Thousand Oaks, CA: SAGE Publications, 2011) 159 at 163.

  5. N. E. Fearn, “Mandatory Sentencing” in William J. Chambliss, ed, (Thousand Oaks, CA: SAGE Publications, 2011) 159 at 164.

  6. N. E. Fearn, “Mandatory Sentencing” in William J. Chambliss, ed, (Thousand Oaks, CA: SAGE Publications, 2011) 159 at 163.

  7. Anthony Gray, “Mandatory Sentencing Around the World and the Need for Reform” (2017) 20:3 New Crim L Rev 391 at 392.

  8. N. E. Fearn, “Mandatory Sentencing” in William J. Chambliss, ed, (Thousand Oaks, CA: SAGE Publications, 2011) 159 at 165.

  9. N. E. Fearn, “Mandatory Sentencing” in William J. Chambliss, ed, (Thousand Oaks, CA: SAGE Publications, 2011) 159 at 165.

  10. N. E. Fearn, “Mandatory Sentencing” in William J. Chambliss, ed, (Thousand Oaks, CA: SAGE Publications, 2011) 159 at 165.

  11. Canada, Research and Statistics Division, (Ottawa: Department of Justice, 2016) at 6.

  12. Canada, Research and Statistics Division, (Ottawa: Department of Justice, 2016) at 7.

  13. David M. Paciocco, “The Law of Minimum Sentences: Judicial Response and Responsibility” (2015) 19:2 Can Crim L Rev 173 at 174.

  14. Gerry Ferguson & Benjamin L. Berger, “Recent Developments in Canadian Criminal Law” (2013) 37 Crim LJ315 at 315.

  15. Gerry Ferguson & Benjamin L. Berger, “Recent Developments in Canadian Criminal Law” (2013) 37 Crim LJ315 at 315.

  16. Gerry Ferguson & Benjamin L. Berger, “Recent Developments in Canadian Criminal Law” (2013) 37 Crim LJ315 at 316-317.

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