There’s a saying in criminal law that sentencing is an art, not a science. Sentencing judges carefully weigh the aggravating and mitigating sentences to craft a sentence that appropriately balances all the principles of sentencing to come up with a just and fair sentence. Except, of course, when they can’t, because their hands are tied by a mandatory minimum sentence.
Canada saw a rash of mandatory minimums introduced throughout Stephen Harper’s tenure, as the Conservative government enacted a ‘Tough on Crime’ agenda. The sentences come with good political capital, calling for the state to come down hard on ‘criminals’ who are getting off too lightly. The problem, however, is that they limit a judge’s discretion. The circumstances behind every change are different, and sometimes the mandatory minimum is outside of what the court can deem acceptable. If a constitutional challenge is brought, where a person argues that the sentence is grossly disproportionate to the crime, then the mandatory minimum is struck down.
And, earlier this month, this was exactly what happened in the case of R v. Morrison, where the Ontario Court of Appeal struck down the mandatory minimum sentence of 1 year for child luring. In this case, the accused person had communicated with a young person, believing that she was over the age of 14, but had failed to take appropriate steps to confirm her age. The court ultimately found that the one year that automatically attaches to this offence was too harsh given the circumstances of the offence.
The case is yet another example of a Harper-era mandatory minimum being struck down. In case after case, courts have found that there are circumstances that might exist for a person where even though they are guilty of the offence, that the crime is grossly disproportionate to their actions. However, these cases take work. They require the right set of facts, a keen lawyer, a client who can pay (or a lawyer who is willing to do a lot of work that they may not get paid for) and a lot of resources within the justice system. Unless defence lawyers challenge these laws, then they stand, often disproportionately affecting individuals from marginalized communities. It has always struck me as odd that Parliament trusts judges to make all sorts of findings, but cannot trust them to craft appropriate sentences, even with an appeal court to correct any unreasonable sentences.
The current Liberal government has indicated that they will be reforming criminal justice policy, and in February, Jody Wilson-Raybould said that the government would be looking at mandatory minimum sentences very soon. Still, we’ve yet to see any movement on this front. In this post-Jordan era of trial delays, we are seeing court time being eaten up by constitutional challenges, instead of streamlining options for resolving these files. Instead of fighting these cases, it seems it’s time to restore judges’ discretion and allow them properly practice the art of sentencing.