Justice officials testing waters for sentencing reform promised by Liberals

OTTAWA — The Justice Department wants to know what Canadians think of changing some of the former Conservative government's controversial tough-on-crime sentencing legacy — including mandatory minimum penalties — before the Liberals bring in their promised reforms.

An online survey asks respondents to judge several scenarios involving mitigating circumstances surrounding a crime, such as a brain-damaged offender whose condition leads to poor decision-making skills, or an offender who acted out of character and has apologized to the victim in court.

Consider, for example, the fictional case of Sarah, a 36-year-old single mother struggling with addiction who was convicted of drug trafficking after she was caught selling some of her prescription opioid pills.

The survey says she had a knife in her backpack, which she claimed was for her own protection, and after she went to jail, her two children were placed with child welfare services because she had no family to take them in.

The survey, conducted by EKOS Research Associates, Inc., says everyone convicted of drug trafficking while carrying a weapon must be sentenced to at least one year behind bars, no matter the circumstances, and then asks respondents whether they believe the sentence is appropriate and fair.

The Liberals have promised legislative changes to mandatory minimum sentences, including at least some of the dozens the Conservatives imposed, or increased, over the decade they were in power.

Proponents of mandatory minimum penalties argue they help ensure consistency in sentencing, while critics have decried them for taking away the ability of judges to use their discretion in handing down a consequence that fits not only the crime, but also the person convicted of committing it.

Justice Minister Jody Wilson-Raybould, who said earlier this summer about half the charter challenges her officials are tracking involve mandatory minimum penalties, is expected to introduce legislation this fall.

Ottawa-based criminal defence lawyer Michael Spratt said he is concerned the survey suggests the Liberal government is looking to public opinion, rather than evidence, when it comes to shaping its justice policy.

"Governing your justice policy based on the popular opinion is a dangerous game that potentially could undermine the rule of law and important constitutional protections," Spratt said.

Yvon Dandurand, a criminologist at the University of the Fraser Valley in Abbotsford, B.C., said he does not share that view because he knows the Liberal government is doing much more than polling when it comes to its review of the criminal justice system.

"They have done just about everything else to develop a good, rational policy on sentencing so to find out where public opinion lies is just part of that," Dandurand said.

Kathleen Davis, a spokeswoman for Wilson-Raybould, said the survey, which was not crafted by her office, is part of a broader effort by the department to engage the public on such issues, including focus groups and a more traditional public opinion survey using a randomized sample.

She said other topics they will explore this fall include restorative justice, sexual assault, court delays, Indigenous issues and mental health.

Davis also said she has seen preliminary results of the survey, which she would not release, and that she was surprised by the level of support for repealing mandatory minimum penalties.

"That goes against the narrative that's out there that the public would not be in favour of that," she said.

Carissima Mathen, a University of Ottawa law professor, said she would be concerned if the survey results were being used to determine policy, but said it could serve to educate people about "complexities in the criminal justice system," including how sentencing goes beyond the crime.

NDP justice critic Alistair MacGregor said he hopes the polling means the Liberals are getting closer to acting on their promise.

"I guess at the end of the day, you have to say better late than never," he said.

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Joanna Smith, The Canadian Press