Suggested Offences With Mandatory Minimums
CC 46-48 (Treason)
CC 83.01-83.3 (Terrorism)
CC 151-154 (child Sex Offences)
CC 229-239 (Murder, 1st degree)
The case AGAINST Mandatory Minimums
-Judges are better able to look at a case and decide what is fair
-Judges are better able to decide what would be best for the public
-Judges are not subject to the whims of the population, given their jobs are secure
-In the event of very poor rulings, they can be appealed
-Mandatory minimums are very costly to the public
-Mandatory minimums result in “social costs” to the public
-There is no general deterrence
-Politicians in general cannot be trusted to pass good laws
-Politicians take so much power anyway, a separate judiciary is necessary
-Government should stay out of people’s lives as much as possible
-Given fraud and corruption within gov’t it is hypocritical for them to be passing such laws
-Judges are best able to “make that exception” when needed
-Mandatory minimums make it hard, if not impossible to make punishment fit the crime. It always must.
The Case IN FAVOUR OF Mandatory Minimums
-Politicians can (theoretically) be thrown out, judges cannot
-Although far from perfect, public input can help draft laws
-While judges are well intended, different perspectives can lead to widely differing sentences on cases of similar facts
-Consistency is necessary in applying sentencing principles
-If bad rulings occur and are not struck down, they can create ”precedent” for future bad rulings. Having set standards eliminates that possibility
-If not mandatory minimums, then guidelines (as is also the case in US/UK)
-Some offences are so bad they “require” prison time (as mentioned, it covered offences like murder, terrorism, child sex offences)
-Of course, this is not to imply that all, or even most offences should carry mandatory minimums
-The crimes being proposed for mandatory minimums are committed so rarely, that there would be ”no dragnet” of people.
-For certain offences, the well being of society needs to trump individual rights
-The Principles of Sentencing (see below) to see a need to balance both individual rights and society’s (the group’s rights)
-Items (a), (b), (c) put societal interest first, while (d), (e), (f) put individual interest first
What Does The Law Say?
Note: the information here is not necessary to prove that mandatory minimums are necessary, but rather to explain when the rationale behind sentencing.
Also the Bill C-42 was introduced to remove so-called ”conditional sentencing” for certain offences. The rationale being, if house arrest is inadequate, the probation would be even more so. In effect, it would ”create” mandatory jail sentences (though the length not specified).
Purpose and Principles of Sentencing
718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
Objectives — offences against children
718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.
Objectives — offence against peace officer or other justice system participant
718.02 When a court imposes a sentence for an offence under subsection 270(1), section 270.01 or 270.02 or paragraph 423.1(1)(b), the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.
Objectives — offence against certain animals
718.03 When a court imposes a sentence for an offence under subsection 445.01(1), the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
R v Proulx makes a pretty compelling case in favour of “conditional sentencing” a.k.a. “house arrest”. This case is recognized and relied on when handing down sentences. Many defense lawyers argue that conditional sentencing would better serve everyone (in most cases) than physical prison.
The restrictions that came from Bill C-42, however, means that certain offences are no longer eligible for conditional sentencing. This means that Judges will have to choose jail sentences, since probation would be considered unfit.
Overall, a very interesting topic to cover.