With all the attention on Bill C-45, the governments second budget implementation bill, and the Idle No More movement opposing it, the government passed some other legislation virtually unnoticed.
On November 12, the Safe Streets and Communities Act went into effect. The Act is basically an omnibus crime bill combining eight formerly separate bills covering everything from protecting youth from sexual predation to discontinuing pardons for serious crimes to protecting vulnerable foreign nationals from trafficking and exploitation.
Also included in the legislation are mandatory minimum sentences for drug crime. I’ve written before on how I feel about the drug laws in Canada and I am not a fan of these new provisions either.
We do not live in a black and white world. This is why we have judges and this is why we give judges discretion to deal with issues in all the shades of grey that make up the world of criminal activity.
As I’ve also written before, there are various goals of sentencing, the least effective of which, for purposes of preventing crime, is punishment.
As an aside, I am not always opposed to mandatory minimum sentences. For particularly egregious offences, murder, sexual predation etc., punishment is, in my opinion, a legitimate justification for severe penalties.
For drug offences, however, particularly Schedule II drugs (i.e., marijuana), I think it is wrong-headed. We need to trust our judges.
You don’t get to be a judge by thinking, ‘yeah, you know, I think I might like to try my hand at that.’ These individuals, for the most part, are extremely qualified individuals, who are able to assess risk and make qualified decisions on a case-by-case basis.
Take the case of Brody Baumgartner. On January 17, Judge Ross Green ruled, based on evidence presented in a preliminary hearing, that the Crown had insufficient evidence to support a charge of trafficking. Had the judge found in favour of the Crown’s position, Baumgartner would have faced a mandatory minimum penalty of two years in prison following changes to the Controlled Drugs and Substances Act passed in the Safe Streets and Communities Act.
There is a publication ban on the evidence, but having been privy to it myself, I believe it would have been a miscarriage of justice for him to face trafficking charges. Judge Green apparently agreed. But it could have happened and had he been convicted, the judge would not have had any discretion in sentencing.
And that’s the point. The circumstances in these cases are complex and judges should have discretion. For example, the rules include aggravating circumstances that allow for strict sentences if the crime is committed for the benefit of organized crime, involves violence or involves a youth, among others.
Only a qualified person, taking into account the totality of the evidence, can make a proper decision with regard to sentencing. I submit this is not the role of Parliament and I suspect that mandatory minimum sentences might be unconstitutional.
Then there are the practical considerations. In a justice system already bulging at the seams of its capacity, these changes will undoubtedly lead to more trials generally and more trials by jury specifically.
If a defendant is facing the discretion of a judge, a plea bargain is often in their best interest and the public best interest. When that same person is facing a mandatory minimum sentence, he might as well take his chances with a jury.
The Crown is so convinced of this it has already committed an extra $6.5 million to accommodate the increase in trials.
This is what happens when a party governs on the basis of ideology rather than evidence. We should be focussed on preventing crime not punishing people after the fact.