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The Liberal government elected in 2015 had as one of its election commitments ending mandatory minimum (MM) sentences for various crimes. Although the first mandatory minimums were put into legislation under a Liberal government, the Conservative government from 2008 to 2015 dramatically increased MMs in the criminal code, adding many. In 1982 the Criminal Code had just six mandatory minimums; by 2006 there were 40, and as of 2016, there were nearly 80, plus another 26 in the Controlled Drugs and Substances Act.
Three years after the election, the Liberals have not yet delivered on their promise. However a number of things have happened that shed light on the issue.
Effects of mandatory minimums
First, we have more information on the effects of mandatory minimum sentences. They lead to longer timelines for resolving cases as people fight harder when MMs exist. A Juristat review found a dramatic increase in the number of cases affected by mandatory minimums, but “no evidence that MMs have deterred crime; rather, some studies suggest that MMs can result in overly harsh penalties and disparities, that they increase costs to the criminal justice system as a result of higher levels of incarceration, and that lengthier sentencing may actually increase recidivism” This same analysis also notes that mandatory minimums lead to more and longer custody sentences . Another government review found, however, that the proportion of convictions dropped after mandatory minimums were introduced – perhaps because the harsher sentences caused accused persons to fight harder to avoid conviction.
Who likes MMs?
Nobody in the justice system seems to have a good word to say about mandatory minimums. A South African judge recently concluded (2017) that “minimum sentences are a poorly-thought out, misdirected, hugely costly and, above all, ineffective way of punishing criminals. They have a pernicious effect on our correctional system, the offenders in it, and, most of all, us – our society”. He also believed that governments instituted these penalties for political reasons despite solid evidence that they were ineffective.
A recent review of research on sentencing concluded: “Researchers and practitioners have documented that, in practice, mandatory sentencing laws regularly produce unjust outcomes, both in the individual case and across a range of cases, because they base prison terms on a single factor and functionally shift undue sentencing power to prosecutors when selecting charges and plea terms.” For a fuller discussion of the problems with mandatory minimums, see this chapter by Erik Luna.
Since the 2015 election, the federal Department of Justice has been consulting on the issue using both a representative sample poll and an online ‘open link’ procedure which invited people with an interest in the issue to comment. Both polls used the same set of hypothetical cases. Both approaches produced a majority of respondents who were either opposed to mandatory minimums in principle or were in favour of judges having discretion to waive these penalties where they felt it was warranted by circumstances. The ‘open link’ group reported being significantly more knowledge about MMs, and were more educated in general; they also were considerably more opposed to MMs, reinforcing the widely held view that mandatory minimums are primarily intended as a political vehicle to appeal to the minority of Canadians who appear to favour harsher punishment regardless of its efficacy or cost.
The courts speak
Meanwhile, Canadian courts have been doing what the government has not – regularly striking down various mandatory minimums as violations of the Charter of Rights and Freedoms. Although the Supreme Court of Canada has upheld the validity of mandatory minimum sentences in principle, at least six different specific MMs have been ruled Charter violations by Canadian courts.
We don’t know when or if the Justice Minister and government will act to fulfill their 2015 commitment. In the meantime, thousands of people continue to be affected by laws that virtually everyone with expertise believes are unfair and counterproductive.