Smoked by Mandatory Minimums
When did sentencing policies shift from merely being questionable, misguided or ill-advised to becoming downright absurd?
For many years now, the blunt hammer of mandatory minimum sentencing has been gaining traction in repeated Criminal Code amendments. Long a feature of only the most heinous criminal act imaginable – murder – mandatory minimums leaked into the broader sentencing framework in the battle against drunk drivers imposing minimum licence suspensions followed by mandatory jail stints for repeat offenders. Since then, they have been invoked in an ever-growing array of anti-crime objectives including the war on drugs, to battle the scourge of gun crimes, high-level fraud cases, and in the protection against sexual predators and child pornography. Each time, the abandonment of a nuanced fact-based approach to sentencing in which our appointed Judges were trusted to carefully balance the mitigating and aggravating factors has been justified by resort to alarmist pleas about the overriding necessity to ‘get tough on crime’. It is a visceral passionate argument that plays to the public’s fears. Who would dare argue that a child pornographer should be entitled to even the possibility of a non-custodial jail sentence? (Following the public disembowelment of respected professor and pundit Tom Flanagan, even musing about alternative sentences for those who view child pornography has become the equivalent of career hari kari.) But now, I would dare argue that mandatory minimums have finally jumped the shark.
The latest horror to attract the mandatory minimum treatment is not the blight of domestic violence or a renewed bulwark against terrorist threats. It is instead that bane of Canadian existence that has long cried out for lengthy periods of incarceration, if only our bleeding heart, pink-shirted, liberal judiciary would recognize it.
That’s right people. Public Safety Minister Vic Toews and Health Minister Leona Aglukkaq held a joint press conference on March 5 to announce the introduction of a bill that would create the new offence of “trafficking in contraband tobacco”. Leaving aside the questionable necessity of creating a new class of illegally trafficked goods for our Criminal Code to address, the truly shocking news in the announcement came as the penalty provisions were unveiled. Not content to set out a maximum sentence as exists for most offences, the Bill follows the now standard approach of tacking on mandatory minimum sentences for repeat high-volume offenders ranging from 90 days to two-years-less-a-day imprisonment. The accepted approach to creeping mandatory minimums up until this point has been to wait a few years to watch what supposedly out-of-touch Judges do with their penchant for ‘soft-on-crime’ sentences before introducing a mandatory minimum in a tirade of self-congratulatory bluster. Instead, our government has gone one step further and decided to do a proactive end-run around the judiciary before they even have the chance to muck things up with their visions of rehabilitation and dreams of restitution.
The government’s justification for taking the extraordinary step of imposing mandatory minimum penalties on an offence designed essentially to combat tax cheats was vague and illusory. Queried on how smuggled tobacco was somehow more dangerous than legal cigarettes, Mr. Toews responded, “contraband tobacco fuels the growth of organized criminal networks, contributing to the increased availability of illegal drugs and guns in our communities.” It might behoove the Minister to recall that, under his watch, mandatory minimum sentences are already being imposed for “illegal drugs and guns” along with new sentencing provisions for involvement in criminal organizations. The Health Minister’s justifications are even tougher to swallow with Ms. Aglukaaq explaining that, “baggies of cheap, illegal tobacco can make it easier for children and teens to get cigarettes into their hands and start smoking, which obviously has a negative impact on their health.” Really? Are Canada’s youth turning to illegal back-alley smugglers to purchase “baggies of cheap illegal tobacco”? And here I thought they were just walking into the local 7-11 and picking up a pack of perfectly-legal-for-adults Marlboro’s.
Might I suggest that the real impetus for mandatory minimum sentences in tobacco smuggling cases has more to do with the Conservative party’s 2011 election platform that accurately noted contraband tobacco “results in huge losses in revenue”? This isn’t to say that the Federal Government shouldn’t take steps to combat the problem. It is clearly legitimate and appropriate for criminal justice to discourage and punish tax cheating smugglers. However, resorting to the pre-emptive use of mandatory minimum jail sentences to tackle revenue crimes is a clear illustration of just how lazy and reflexive we have become in our approach to crime and punishment. When a two-time tobacco smuggler faces a minimum sentence of 90-days in jail, you can be sure that we are already careening down a slippery slope towards a massive rise in incarceration even for non-violent offences. Where do we draw a line in the sand and stand up for the intelligence and reason of our judiciary by allowing them to craft sentences using more than the single tool of a jail cell? How long will it be before someone is serving a week in jail for ripping that “DO NOT TEAR” tag off their child’s new plush teddy bear? That sounds utterly absurd (and it is), but can anyone deny the uncomfortable expansion in mandatory minimum sentencing? Would anyone be surprised if the next Criminal Code amendment, citing incredible damage to Canadian artists and intellectual property, created a new mandatory minimum jail sentence for Copyright Act violations? What will you say to the Judge who has no choice but to send your eighteen year-old child for a week-long stay in the pokey in penance for his pirated movie collection?
Tobacco smuggling is a crime and should be punished but not by ham-fisted mandatory jail stints. Let’s reverse the disturbing trend of inflexible penal sentences and allow our fully-informed Judges to mete out fair sentences on a case-by-case basis.
If we agree (and I think we do) that mandatory minimum sentences should be used sparingly, there are nevertheless two issues which deserve further exploration, in light of the desire to ensure that “fully-informed Judges to mete out fair sentences on a case-by-case basis”:
(1) if mandatory minimums are an unjustifiable fetter on judicial discretion, then why would caps on sentences be justified? How is a mandatory cap any less objectionable than a mandatory minimum?
(2) why should appeals of sentences be permitted for anything other than a mistake of fact?
Well said. Is this the first mandatory minimum for a non-violent offence? If so, and assuming it is challenged on s. 7 grounds, courts might take the opportunity to lay down a clear rule that depriving judges of discretion to issue a non-custodial sentence for a non-violent offence is contrary to the principles of fundamental justice.
A few words in response to the comments.
Bob: I think you raise an interesting point regarding “maximum sentences” as an equally dangerous fetter on the freedom of judicial discretion and yet I can’t honestly think of a single example of a case in which a crown has said “I wish the maximum sentence was higher so I can seek out a ‘fair’ sentence.” The reality is that maximums are set extraordinarily high such that crowns who feel the need to ask for a high sentence have only to elect by indictment to open up maximums on virtually every offence of 10yrs+. It’s at the minimum level where that same crown discretion could force a reluctant Judge to start the sentencing regime at 4yrs even for a first offender, that we need to be more vigilant. With respect to sentence appeals, as you likely know, the deference afforded trial judges on sentencing is broad and far reaching. Only when a sentence is manifestly unfit at either end of the range will an Appellate court intervene.
Noel: There are many offences that are not inherently violent which carry mandatory minimum penalties. These include firearms offences for simple possession (obviously a serious crime with the potential for violence but not violent in-and-of itself), certain drug charges, high-level fraud cases and, most commonly impaired driving cases (even where there is no injury).