If a foolish consistency is the hobgoblin of small minds, the Harper government has been very, very consistent — at least when it comes to crime.

The federal Conservatives have reduced criminal justice policy to a simple flow chart. Step one: Promise ‘tough on crime’ legislation that’s easy to sell to the Conservative base. Step two: Table the bill while ignoring the advice of experts (both inside and outside the Justice department) arguing the new law would be both ineffectual and unconstitutional. Step three: Cling like grim death to the talking points, at least until step four — when the Supreme Court strikes the law down. Step five: Cry ‘judicial activism’, then refer to step one.

The pattern is always the same; only the bills change. The results speak for themselves — for the Harper government, one defeat after another in the nation’s highest court. They’ve been in power since 2006. They really should be getting better at this by now.

This week, the SCC struck down a 2008 law that imposed mandatory minimum sentences for the unlicensed possession of prohibited or restricted firearms.

The court did not simply hold that the minimum sentences are a poor policy choice. It found that these minimum sentences amount to cruel and unusual punishment — that the legislation offends standards of decency by imposing sentencing as a “blunt instrument that may deprive courts of the ability to tailor proportionate sentences at the lower end of a sentencing range”.

The court also found that, under the 2008 law, an otherwise law-abiding person storing an unloaded, restricted firearm at his or her home would be treated as a hardened criminal and hit with a minimum prison sentence for a minor licensing infraction.

How did the government get it so wrong … again? Better to ask why the government didn’t make a modest effort to get it right. The Conservatives knew this law was a dead man walking. They just didn’t care.

Had they been listening, they would have gotten an early indication that the legislation was unconstitutional from their own Parliamentary Information and Research Service department, which warned that “mandatory minimum terms of imprisonment are generally inconsistent with the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender” — and minimum sentences “may constitute cruel and unusual punishment in violation of the Canadian Charter of Rights and Freedoms”.

Minimum sentence for firearms offence don’t deter criminals and they rob judges of the discretion they need to impose punishments that fit the case, not the category. Minimum sentence for firearms offence don’t deter criminals and they rob judges of the discretion they need to impose punishments that fit the case, not the category.

Now, maybe the government reasoned that deterring crime was a more important principle than strict adherence to the Constitution when it was drafting this law. The Justice minister at the time, Rob Nicholson, said Canadians “want a justice system that has clear and strong laws that denounce and deter violent crime,” and that’s what he was giving them.

Except … minimum sentences don’t deter crime. And the Conservatives knew that too. Or they should have, given how often the experts told them so during study of the draft bill.

For example, leading Canadian criminologist Anthony Doob questioned why the legislation made no reference to fair and proportionate sentences, warning the government that they were “at best ignoring the principle of proportionality in sentences”. At best.

Doob went on to say:

Let me give some examples of the provisions of this legislation that have little to do with protecting us from violent crime. The mandatory minimum penalties for firearms offences have been discussed extensively. The evidence of their ineffectiveness is clear. Numerous studies have been carried out in various countries demonstrating that mandatory minimum penalties of this kind do not deter crime.

Minimum sentence for firearms offence don’t deter criminals and they rob judges of the discretion they need to impose punishments that fit the case, not the category — which violates the Charter and risks offending Canadian values. Any other government would think twice before passing a law that breaks the law. Not these people.

In fact, nobody really came out smelling like a rose on this one (NDP MP Bill Siksay was the only one in the Commons to vote against the bill). The opposition was cowed by the Conservatives’ preemptive suggestion that any push-back against the bill would be an endorsement of permitting violent criminals to “eat popcorn in front of their television in their living rooms”.

But it’s the job of judges to make decisions based on evidence, not ideology or political tactics. The Supreme Court held that “mandatory minimum sentences, by their very nature, have the potential to depart from the principle of proportionality in sentencing. They emphasize denunciation, general deterrence and retribution at the expense of what is a fit sentence for the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime.”

The court also hammered home a point that seems to have escaped a great many politicians: No one in Canada stands above the Constitution. Not even the prime minister.

The judges ended up rubbing salt into the wound by quoting in its decision the very expert that the government ignored in 2008 — Anthony Doob: “Empirical evidence suggests that mandatory minimum sentences do not, in fact, deter crimes.”

The government knew this law was doomed from the start. If Harper’s looking for someone to blame, he need only look in a mirror.

Michael Spratt is a well-known criminal lawyer and partner at the Ottawa law firm Abergel Goldstein & Partners. He has appeared in all levels of court and specializes in complex litigation. Mr. Spratt is frequently called upon to give expert testimony at the House of Commons Standing Committee on Justice and Human Rights and the Senate Standing Committee on Legal and Constitutional Affairs. He is a past board member of the Criminal Lawyers’ Association and is on the board of directors of the Defence Counsel Association of Ottawa. Mr. Spratt’s continuing work can be found at www.michaelspratt.com and on twitter at @mspratt

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