One-Size-Fits-None

A rural property owner faces gun charges after firing warning shots over the heads of a group of thieves making off with his ATV. A goofy misfit faces three years in jail after posing for a Facebook photo holding a loaded gun in his hand. A father gets arrested and strip-searched after his kindergarten daughter draws a blocky picture of him shooting “monsters and bad guys”.

These three men are all victims of one-size-fits-all justice.

Whether it’s a “zero tolerance” approach to gun crimes or domestic assault, mandatory minimum sentences being applied to virtually everything, or blanket policies that demand strip searches of every detainee, the criminal justice system has demonstrated a very dangerous trend in recent years. Police officers and politicians are increasingly forsaking their powers of reasoned consideration for out-of-the-box solutions designed to absolve persons in authority from actually thinking before exercising that authority. The traditional bastion of sober second thought – our courts – are facing an all-out assault against judicial discretion with mandatory minimum sentences and the wholesale pillaging of the conditional sentence regime. The result is an increasing number of outlier cases that demonstrate the absurdity of trying to commoditize justice into politically friendly catch-phrases that can be used to prove one’s ‘tough-on-crime’ credentials.

Have we become so distrustful of our front-line justice workers that the only solution is to replace them with laws and policies drafted by committee? No matter how representative and clear-thinking a legislative committee may be, it is entirely impossible to dream up the kinds of absurdities that clog our courts day after day. You can bet that when the mandatory minimum three-year jail sentence for possession of a loaded firearm was being debated, nobody around the table had a vision of Leroy Smickle in his undershirt clicking the “Like” button in front of a webcam. Interposing humane police officers and free-thinking judges empowered by the ability to craft individualized solutions to unique issues is the safety latch that prevents unforeseen injustices.

Instead, thoughtless policies and statutory amendments like those about to be heaped upon us by the omnibus crime bill are turning some of our most important members of society – police officers, prosecutors and judges – into parodies of 1980’s computer programs.

10   If gun GOTO 20
20   Arrest. Strip search. Jail 3 years
30   GOTO 10

If we have lost so much faith in our judges, crown and police that we feel the need to straightjacket them with statutory amendments and mandatory policy directives, why isn’t anyone talking about finding a new way to appoint and hire these important civil servants? Judges, for obvious reasons, enjoy an important protection from Parliamentary interference but crowns and cops regularly are called to answer to their political masters. Pigeon-hole your average crown attorney in a dark corner of your local courthouse and ask them off the record how they feel about sweeping additions to mandatory minimum sentencing regimes and I wager you will hear what I have heard – we don’t need it; we don’t want it; why doesn’t the government trust us to do the right thing? I won’t be so bold as to suggest that you’d hear the same unanimity amongst the police force though even there, some officers are quietly wondering why we’re fixing what ain’t really broken.

Mandatory minimums, blanket policies and zero tolerance are the abdication of reason to bureaucracy; the triumph of politics over intelligence. This kind of binary thinking is what gave birth to Vic Toews’ notorious rejoinder when questioned on a deeply flawed internet surveillance bill that Canadians “can either stand with us or with child pornographers.” Really? Are Canadians not entitled to expect a more nuanced thought-process from our law-makers, police and judges? Should Brian Knight have received a sentence three-times longer than the ATV-thief he was chasing down with his shotgun? Would it really be so bad to let a judge decide whether pathetic Leroy Smickle deserves something less than three years in the penitentiary for his choice of social media prop? Could Waterloo police not have chatted with Jessie Sansone about his daughter’s drawing before slapping on the cuffs and subjecting him to a humiliating cavity probe?

Supporters of measures like the omnibus crime bill have increasingly been striking back at defence lawyers like me accusing us of having a professional “conflict of interest” and questioning our personal motivation for opposing mandatory minimum sentences. It is high time to dispel the misconception that ‘getting tough on crime’ is bad for defence lawyers. It’s bad for my client. It’s bad for society. But it’s great news for me!

Clients facing criminal charges are not particularly motivated to mortgage their homes for a substantial retainer fee just to avoid the prospect of sporting an ankle bracelet for six months. Replace conditional “house arrest” sentences with three-year mandatory minimum jail terms and you can bet that my clientele will be visiting their banks for that loan with frequency and alacrity. Arresting and imprisoning more and more people for marijuana cultivation and possession won’t make your streets any safer but it will help my family to move onto a better street!

So, when politicians and victim’s advocates claim that defence lawyers have a conflict of interest in arguing against get-tough-on-crime- policies, they’ve got it all backwards. A zero tolerance policy makes zero sense. Getting tough on crime cannot come at the expense of getting smart on crime. One-size-fits-all solutions leave all of us with an ill-fitting wardrobe. I’m prepared to tolerate a pair of baggy sweat pants or t-shirt that’s too tight around the neck. I’m not prepared to do the same with our criminal justice system.