Justice Delayed: Part 3 of 3

When the federal government announced its reforms to the justice system in March, there was one very notable omission that had defence lawyers fuming:

There was no indication in Bill C-75 of what the Liberals planned to do about mandatory minimum sentences.

Those three words — much maligned or much appreciated in the justice system, depending on who you talk to — have long been at the centre of a debate as to whether most of them are actually useful in denouncing criminals and deterring future offenders.

One thing many legal experts seem to agree on, though, is that mandatory minimum sentences contribute to delay in the criminal justice system. For example, lawyers point out there’s little to no incentive for an individual to plead guilty if they are still going to get the same sentence they would receive if they went to trial and were found guilty.

Read more:

Part 1: ‘It’s actually shocking how archaic’ Ontario’s criminal courts are

Part 2: How the underfunding of legal aid is clogging up the justice system

“If a mandatory sentence were removed from consideration, there is greater flexibility for resolving matters at an early stage in the proceedings. This would, in turn, free up more court time,” concluded a 2017 study on court delays by the Senate committee on legal and constitutional affairs.

The committee noted that in her November 2015 mandate letter from the prime minister, federal Justice Minister Jody Wilson-Raybould was instructed to “conduct a review of the changes in our criminal justice system and sentencing reforms over the past decade.”

The senators recommended that Wilson-Raybould undertake a “thorough review” of existing mandatory minimum sentences to, among other things, “ensure a reasonable, evidence-based approach to when they are appropriate.”

But fast forward to this year, and the federal government is still looking into the issue. Lawyers and other experts on prisons and the justice system have been urging the federal government for years to limit the number of mandatory minimum sentences, as they make it impossible for a judge to craft a sentence that takes into account factors such as the seriousness of the offence and blameworthiness and background of the accused person.

“There's been decades of evidence, volumes of criminological study, weeks and weeks of combined testimony before the House of Commons and Senate, and there was the explicit promise (to review the issue), and this isn't just breaking one promise to deal with mandatory minimum sentences, it fundamentally breaks a promise to craft legislation and policy based on evidence,” said Ottawa criminal defence lawyer Michael Spratt.

Wilson-Raybould’s office referred the Star to comments she made to reporters in March, when she said the government wants to propose sentencing reforms “that will stand the test of time” and so is continuing to work with provincial and territorial governments.

“It means continuing to work with all actors in the criminal justice system, and it means taking advice from the courts. And it means listening to Canadians,” she said. “We will not stop working until we have a modern, efficient criminal justice system. We will not stop working until we have a criminal justice system that addresses the overrepresentation of Indigenous and marginalized Canadians.”

The Senate committee also noted that a conditional sentence — essentially a non-jail sentence that can include house arrest — is not available when a mandatory sentence applies, and that amendments made to the Criminal Code over the years have “restricted” the number of offences for which a conditional sentence is possible.

“This leads to more accused choosing to go to trial; there is nothing to lose by going to trial since, with no conditional sentence possible, imprisonment is a certainty whether one pleads guilty or is found guilty,” the committee said. “If there is at least a hope of a conditional sentence being imposed, then there might be more guilty pleas being proferred.”

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Some criminal offences have had mandatory minimum sentences for decades, such as first-degree murder, which carries a sentence of life in prison without the possibility of parole for 25 years.

But as Statistics Canada notes, the number of such sentences for a variety of offences have “increased considerably” since 2005, particularly in the area of drugs, impaired driving, firearms, and sexual offences.

In its 2017 report, the Senate committee highlighted the example of impaired driving (where there has been no death or bodily harm.) If the individual is convicted and it’s their first offence, the punishment carries a mandatory criminal record, fine and 1-year driving prohibition.

“Many persons accused of this offence have no criminal record and have every incentive to go to trial to avoid getting one,” says the report. “This is a technical area of the law and some defences could present themselves. Those with the means to dispute allegations of impaired driving have little reason not to do so.”

Indeed, impaired driving offences form a big part of the caseload in the Ontario Court of Justice — already one of the busiest levels of court in Canada — and can take up more time due to a series of constitutional challenges that can be launched over the arrest. These include whether the officer had reasonable grounds to believe the driver was impaired, whether the demand for a breath sample was made as soon as practicable, and whether the right to a lawyer was respected.

Michael Lacy, president of the Criminal Lawyers’ Association, said that historically, Ontario Court judges spend almost a quarter of their time doing impaired driving trials.

“This is because there is a mandatory minimum. There was (and remains) very little incentive to do anything but go to trial,” he said. “Crowns and judges alike, even if they are not able to be public about it, share the concern of the Criminal Lawyers’ Association that mandatory minimum sentences interfere with the ability of the parties to properly assess cases, properly exercise discretion and to resolve matters that should be resolved.”

Even just the litigation around whether a specific mandatory minimum sentence is constitutional takes up court time, Spratt, the Ottawa criminal defence lawyer, pointed out. Some are upheld, while others are struck down by courts across the country, as well as at the Supreme Court, for being “cruel and unusual punishment.”

The Justice Department told the Star that 65 per cent of the ongoing 277 charter challenges it is tracking are related to mandatory minimum penalties.

This past spring, independent Ontario Senator Kim Pate, fed up with the government’s slow progress on the file, introduced a bill in the Senate to give judges back their discretion and avoid imposing mandatory minimum sentences when they deemed it appropriate.

“The proliferation of mandatory minimum penalties not only disproportionately impacts Indigenous peoples, but also harms us all by making Canada a harsher, more punitive country and by undermining our commitment to equality and the rule of law,” Pate said in the Senate in May during the second reading of her bill.