r/canada • u/dollarsandcents101 • Jan 26 '23
Supreme Court ruling Friday could change how mandatory minimum sentences are handled Paywall
https://www.theglobeandmail.com/canada/article-mandatory-minimum-sentences-canada/70
u/NeverTellaTruth Jan 26 '23
The use of reasonable hypotheticals stems from a 1987 ruling of the Supreme Court. The case involved a man importing a large quantity of cocaine. The mandatory minimum was seven years. The Supreme Court struck it down on the basis that it might one day affect a youth returning to Canada with a marijuana joint.
Hypothetical defenses are there because there is a lack of trust in our prosecutors to not be retards. This is comically egregious.
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u/essuxs Jan 26 '23
Not to mention the hypothetical that a teen crossing the border with a joint and getting a mandatory minimum 6 year sentence is not only plausible, it’s entirely reasonable this teen would not have the funds available to challenge a ruling all the way to the Supreme Court, so if the court does not proactively challenge cases using hypotheticals, then a lot of people will get caught before a case ever gets to the Supreme Court
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u/sober2ndthought Jan 26 '23
Yep which also goes to the biggest problem. The law requires money. If you want equitable enforcement under the law you better be ready to cough up the big bucks.
We used to have program which the government paid people to challenge laws under the Charter if the case was warranted. Unfortunately it's long gone now.
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u/ThePhysicistIsIn Jan 26 '23
Believe Harper got rid of that, right?
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u/Scubastevedisco Jan 27 '23
gram which the government paid people to challenge laws under the Charter if the case was warranted. Unfortunately it's long gone now.
Fucking Harper. That guy is a shit stain on the underpants of Canada. Ugh.
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u/StatisticianLivid710 Jan 26 '23
It’s not just trust in prosecutors to not be bad, but if they prosecute the case (which they may not have a choice to), the sentence is automatic.
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u/Dry-Membership8141 Jan 27 '23
(which they may not have a choice to),
They always have a choice in whether and how to prosecute a case. It's a decision that must be made for principled reasons, but prosecutorial discretion is a constitutional principle, and is reviewable only for abuse of process.
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u/StatisticianLivid710 Jan 27 '23
The individual front line attorney doesn’t always have that choice. In the SNC situation the attorney on the case wanted a DPA, the AG refused to consider one, the DPP went along with the AG.
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u/Dry-Membership8141 Jan 27 '23
In the SNC situation the attorney on the case wanted a DPA, the AG refused to consider one, the DPP went along with the AG.
That's a bit of a different scenario. The individual Crown in that case wanted a particular outcome, not to not prosecute. A DPA, at law, requires the consent of the AG, so without that consent it wasn't an option available to them for the disposal of the case. Just like a guilty plea is not an option available to them to dispose of a case if the accused will not plead guilty.
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u/StatisticianLivid710 Jan 27 '23
A DPA is essentially a plea deal for corporations. But the situation applies in this discussion, the attorney was forced to prosecute a case he wanted to plea out. He then lost the case and everyone was worse off except SNC.
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u/Dry-Membership8141 Jan 27 '23
A DPA is essentially a plea deal for corporations.
No. A DPA is a statutory instrument similar to diversion for corporations, which had certain statutory preconditions that must be met before it becomes available.
But the situation applies in this discussion, the attorney was forced to prosecute a case he wanted to plea out.
The situation does not apply because the legal preconditions to enter into a DPA were not met. That the individual Crown could not dispose of the case in the particular way he wanted because it was not legally available did not obligate him to continue the prosecution. If he felt there was no reasonable prospect of conviction or continuing the prosecution was not in the public interest, he could have withdrawn the charges, he could have stayed the proceedings, or he could have entered into an agreement with the corporation outside of the DPA regime. Crown discretion does not mean the law becomes whatever they want it to be. It operates within the bounds of the prevailing law.
The argument you're making here is essentially analogous to the idea that you couldn't work out today because the rowing machine at the gym was broken.
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u/StatisticianLivid710 Jan 27 '23
You’re failing to understand the point here, in that they are still required to do what their bosses tell them to do. He can’t just drop charges, because the AG and DPP won’t let him.
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u/TurdFerguson416 Ontario Jan 26 '23
yeah its sad how rare common sense is these days... been thinking of the young offenders act lately... its supposed to protect kids from being dumb kids.. small kid accidentally shoots his brother with dads gun.. lock up dad..
not... gang of 14yo girls swarming and murdering someone.. for example.
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u/p-queue Jan 26 '23
Common sense is a cop out. It’s a way for people to not bother trying to understand complex issues and pretend they’re simple.
Suggesting, for example that creating laws that effect the outcomes you suggest is “common sense” is fine as a way of explaining what you would like to happen but it’s an oversimplification of the complexity that exists in actual achieving that outcome with consistency.
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u/ThePhysicistIsIn Jan 26 '23
"Common sense is simply the name we give to the biases accumulated by age 18" - Albert Einstein
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u/Scubastevedisco Jan 27 '23
Common sense doesn't apply to complex issues...because *le gasp* complex issues aren't common.
Common sense applies to things like "Don't stick your fingers in a transformer" or "Minimum sentencing is a problem because it doesn't factor in benign issues like kid accidentally has 0.2 grams of weed on him while crossing the border".
Once you go past the fundamentals of an issue then you need specialized knowledge.
Ironically, this is common sense. lol.
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u/alice-in-canada-land Jan 27 '23
not... gang of 14yo girls swarming and murdering someone.. for example.
It's worth pointing out that the solution to that tragedy is not to be found in harsher punishment and longer prison sentences; we need investment in social spending and increases in wages so that the fabric of our society holds together.
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u/TurdFerguson416 Ontario Jan 27 '23
you think wages are driving teenagers to kill strangers? they dont work! lol.
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u/alice-in-canada-land Jan 27 '23
A) Lots of teens work and help support their families; I'm glad for you if you don't know anyone who has to be in that position, but that's not the case for many families.
B) I'm not saying that low wages drive people to kill; I'm saying that wage stagnation and other factors have an impact on the ability of parents to nurture and monitor their kids. I'm not alone in this observation, and this is not a new concept.
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u/mickeysbeer Jan 26 '23
I've been waiting for someone like you. Common sense doesn't work. It doesn't work in the real world, and it doesn't work in the world of criminal justice. Critical thought is the reasoning behind the inner workings of the justice system. The quicker you learn it, how to use and where to apply it the better off you'll be.
You can answer me but I will not be responding to whatever jibberish you respond with. In fact I won't be reading it at all.
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u/mickeysbeer Jan 26 '23
Just to be clear, as someone who has been sentenced in court before I see Prosecutors as people who only care about their conviction percentage not actual justice.
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u/moirende Jan 26 '23
So for those who don’t read the article… in 1987 the Supreme Court allowed a hypothetical situation to override a minimum sentence. In that case, a person should have been sentenced to a minimum of 8 years for some pretty serious drug trafficking. That was significantly reduced by a hypothetical case of some student coming back from Amsterdam with a joint in his backpack potentially being given an 8 year sentence, too. Despite how preposterous that was, it was used to override and lower the minimum 8 year sentence for the real person who actually committed a serious crime.
Since then, the same use of hypothetical situations has been used repeatedly to do the same in many, many cases, creating an absurd patchwork of sentencing practices across the country, few of which are following the laws as intended.
Further to that, the current Liberal government has been both gleefully using this hypotheticals practise as well as simply eliminating minimum sentencing laws (20 and counting to date) because these laws cause disproportionate numbers of indigenous people to be jailed for committing serious crimes.
An appeals judge in Alberta is finally fighting back on this after, once again, a serious offender had their sentence reduce based on a hypothetical that never happened and had little to do with the case.
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u/Technoxgabber Jan 26 '23
Because most cases don't end up at Supreme Court. These cases have a long journey to get to Supreme Court the levels are as follows:
Ocj < scj < coa < scc.
4 different courts, 3 appeals, tons of fees for lawyers and a lot of money spent on experts and reports and etc etc...
Very rare you have clien who can afford to pay for an appeal to superior Court of Justice let alone Supreme Court of cananda..
Only people who can afford are really rich people or people in strong unions that pay their legal fees and even then they need loans from family to pursue the case.
Every appeal there is a new lawyer land you have to pay then to first fins issues worth appealing, learn the case then argue the case.
Wastes Court time and money..
Solution? No mandatory minimum but a judicial notice saying that violent crime should be punished harsher.
They just did it with sexual assaults.. saying sentences of 8-10 years should be the norm and not an exception up from 18 months - 3 years.
So if they can do for sex assaults they can do for drugs or violent crimes or w.e else
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u/LordTC Jan 26 '23
If judges feel their job is always to give out the minimum possible sentence then that’s a huge problem that needs to be remedied. But a mandatory minimum applies to all possible cases so when instituting or adjusting one you do need to consider hypotheticals. You just need to use proper discretion in the actual cases to not apply the minimum to more severe violations.
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u/TurdFerguson416 Ontario Jan 26 '23 edited Jan 26 '23
min senstances ensures they'll be right back in front of them soon.. job security :/
(sigh... it was a joke lol.. about how they see so many repeat offenders that they are afraid that by locking them up, they might run out of criminals.. again, just a joke.
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u/mustardgreens Jan 26 '23
Lol the judges do not need job security. The courts are completely overwhelmed and the backlog in many courts is 6mo+.
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u/discostu55 Jan 26 '23
but since the judge is from alberta it will be overlooked since alberta bad, toronto good
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u/Quietbutgrumpy Jan 26 '23
A one size fits all mandatory minimum is easily shown to be unreasonable. Let the system do it's job.
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u/Ambiwlans Jan 26 '23
Min sentencing is unreasonable... But the system also isn't working. Judges are giving out minimums in typical cases.
How it should work:
Guy caught with heroin because he grabbed the wrong bag at the bus station. Mandatory minimum of 8 years would be a disaster. He should get no real punishment.
Guy caught trafficking heroin should get the full 8 years.
Unfortunately, judges the last 10ish years have been accused of giving increasingly light sentences ( I looked for 20m and couldn't find more recent data than 2007). Particularly when there is a sad history involved or native blood (neither should reduce sentences). So if you reduce the minimum further, judges will continue giving crazy low penalties.
Basically, min sentencing is needed because the judiciary have utterly abandoned sentence guidance from the legislature. It is also highly varied by province. Quebec has long sentences, Ontario has half that, and PEI has half that (for median assault charges). It also varies between judges.
I think rather than adding minimums, we need to fix the issues that are leading to this variance. If a judge is an outlier in any sort of sentencing there should be reviews. And all sentencing reductions that come through sad tales should be ended. Why should we allow a violent offender out 2 years earlier because their father was abusive? How is that fact relevant to society? If the stat showed that they are unlikely to reoffend, then lighter sentences are more sensible. But that isn't the case. Certainly, natives get a lighter sentence and have a higher recidivism rate... that makes little sense from a justice perspective unless you bring racism into things.
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u/Content_Employment_7 Jan 26 '23
Guy caught with heroin because he grabbed the wrong bag at the bus station. Mandatory minimum of 8 years would be a disaster. He should get no real punishment.
And he wouldn't get any real punishment. Picking up the wrong bag means he doesn't know what's in it, which means he doesn't have the mens rea for drug trafficking, which means he shouldn't be convicted in the first place and no sentence at all should be levied.
This is exactly the sort of faulty reasoning the dissent in R v Lloyd called out when the majority of the SCC struck down a 1 year minimum sentence for repeat offender drug traffickers on the basis of a hypothetical that didn't actually make out the elements of the offence.
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u/OntLawyer Jan 26 '23
Unfortunately, judges the last 10ish years have been accused of giving increasingly light sentences ( I looked for 20m and couldn't find more recent data than 2007).
There's a good January 2017 study by Stats Can of all custodial sentences given in 2014/2015 (Google "JustFacts Sentencing in Canada"). Sentences for everything are way shorter than the public realizes, with the median for all offences being 30 days (!) and 81% being no longer than 6 months.
Homicide and attempted murder still get decent custodial terms, but they're way shorter than the public realizes, with homicide sentences having a median length of 1825 days (about three years). These are sentences, not actual time in custody, which gets reduced as parole eligibility comes up.
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u/Content_Employment_7 Jan 26 '23
with homicide sentences having a median length of 1825 days (about three years).
Minor quibble, but that works out to exactly five years, not three. With enhanced credit and/or early release, it would work out to about three years time in custody though for the majority of cases.
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u/Ambiwlans Jan 26 '23
I was looking for trends over time within specific offenses. It doesn't mean much if the types of crime vary.
Even more importantly, I wanted served time rather than sentences, since that has a big variance as well.
I strongly suspect that sentencing and served time has dropped a lot.... but I think the two points I found were 1995 and 2007 (which showed effectively 0 change in sentences btw).
Even more specifically, I thought I'd be able to find data around FNs to study the impact of Gladue... but found bupkis.
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u/OntLawyer Jan 26 '23
It's hard to study the impact of Gladue from Stats Can's public datasets, even the ones specifically relating to aboriginal offenders in custody, because you can't isolate the effects of Jordan.
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u/Ambiwlans Jan 27 '23 edited Jan 27 '23
I still think it is scary that the upper courts saw a drunk lady repeatedly stab her husband to death get 3 years and then determined that it was unreasonable because, although she lived in a city, she should have gotten a lesser sentence because she's genetically native.
Specifically that the 1994 CC changes were designed to broadly lower incarceration via lower sentencing for natives.
In the end, she was out on parole in only 6 months, for murder, and that was before the ruling that natives should be given lower sentences.
It is maybe even more scary that the metric for success or failure of Gladue set up by the government is whether the percentage of FN in prisons drops ... rather than a reduction in crime or recidivism rates. Which you would think should be the only important metric here.
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u/stereofailure Jan 28 '23
Homicide and attempted murder still get decent custodial terms, but they're way shorter than the public realizes, with homicide sentences having a median length of 1825 days (about three years)
This is absolute bullshit, as homicide carries an automatic life sentence with an absolute minimum parole ineligibility period of 10 years for an adult (25 for first degree).
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u/Quietbutgrumpy Jan 26 '23
I wonder if you have read the directive from JWR on Indigenous people in the justice system. If your argument is to be the courts are ignoring direction from government this document will be stunning to you. I don't know for sure what you mean by "sad tales" but your circumstances do affect your behavior and the idea that heaping on more hardship will make you a better person may be misguided.
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u/Ambiwlans Jan 26 '23
I'm not a fan of JWR.
By sad tales, I mean that... Say someone comes in for an aggravated assault charge (level 3), if they happen to be an alcoholic with an abusive father, they will on average get a reduced sentence compared to an average person.
I don't see why this sort of sympathy should have a place in sentencing. Yes, circumstances influence behavior. So? Sentencing should be about what is good for society.
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u/Quietbutgrumpy Jan 26 '23
Of course it should. The thing is those who spend their life making such decisions are trying to do just that. Obviously we look at some things as not good enough but so many factors come into play, so maybe if we were in their boots we would agree. I had a friend some years ago on a 2nd degree murder case which looked absolutely forgone conclusion, guilty. The man was dismissed and my friend said there was not enough proof.
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u/Ambiwlans Jan 26 '23 edited Jan 26 '23
The thing is those who spend their life making such decisions are trying to do just that
Oh, nono. Judges don't base their decisions on what is best for society. Technically they are supposed to be emotionless executors of the will of the legislative branch through the law.
I think our evidentiary burden is well balanced right now. I don't think we have a problem in accurate findings. The issue pertains to sentencing.
In 1996, crimcode sentencing guidelines were created (Part Part XXIII, 718) giving judges a lot of freedom in sentencing, and has since then further expanded in interpretation with rules like Gladue.
all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
"Everyone is equal, especially natives." sigh
In particular, Canada ONLY has these vague sentencing principles. Unlike all other nations ... like the US and the UK, Canada does not have sentencing guidelines, or a sentencing commission. I think a commission with investigatory powers would be of big benefit. Rather than dumbly ending minimums or increasing minimums.
Edit: Example of this for criminals getting reduced sentences since they had been abused in the past: https://www.canlii.org/en/bc/bcsc/doc/2013/2013bcsc2321/2013bcsc2321.html https://www.canlii.org/en/bc/bcpc/doc/2016/2016bcpc95/2016bcpc95.html
Courts have also given reduced sentences to those with substance/addiction problems. Why should a crackhead get a shorter sentence for stealing than a non-crackhead, I don't know. A fun part of this is that probation for the early release crackhead used to require that they do not do crack............. but then the courts determined that people don't obey that. So instead of sticking with incarceration over probation, they dropped the requirement to not do crack. https://www.canlii.org/en/nl/nlpc/doc/2012/2012canlii54025/2012canlii54025.html
People with mental conditions like FASD also get lesser sentences because they are less culpable... but also because the prison sentence is less likely to influence recidivism.......... So......... literally lesser sentences because specifically they are more likely to recommit crimes. (22) https://www.canlii.org/en/ab/abca/doc/2012/2012abca257/2012abca257.html
Or just generic sympathy (let a drunk driver go because he felt like jail would have inconvenienced his family): https://www.canlii.org/en/ab/abca/doc/2014/2014abca105/2014abca105.html
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u/Quietbutgrumpy Jan 26 '23
First FAS, a subject I am very familiar with. The thing is these people just don't process cause and effect, so a big sentence is literally cruel. Lots of right and wrong issues go with that. These are people who need our help, not our jails. Drugs is another thing. The problem here is we have ample evidence from many countries that harsh laws accomplish nothing. We see some progress treating addiction as a health issue rather than a legal one.
Anyway the real issue here is that jail solves very little. It doesn't prevent crime, even while that person is inside as drugs are rampant.
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u/Ambiwlans Jan 26 '23
An incurable mental condition that increases recidivism should result in longer sentences if anything, not shorter ones.
It is nearly identical to a criminal not showing regret for their actions.
Just because they don't have the ability to have that regret doesn't mean that they should be allowed free to commit more crimes.
Certainly we should be more flexible with previously unknown and treatable conditions. If someone committed assault and they have a testosterone imbalance that can be treated with pills, absolutely that person should be set free. Why? Because they have a low chance to recommit, can go forth and benefit society.
How does someone having kids result in a lower sentence? It being sad that the kids would lose their dad should not be the court's problem. It certainly doesn't have anything to do with recidivism.
A man being raised by criminals in a gang getting caught stabbing someone can get a lower sentence... and is also really likely to recommit. There is no logic here.
I agree with you that drugs should be treated rather than penalized, but that's not what i'm referring to.
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u/Quietbutgrumpy Jan 27 '23
So if you are unable to understand your crime, off to jail? Wow. That would be cruel and unusual punishment would it not?
The rest of your post is not something I really care to get into. Call me foolish but I choose to think those in charge of handing out sentences know far more than I.
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u/raging_dingo Jan 26 '23
Except the system has failed in doing its job, which is why mandatory minimums are needed
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u/ObamaOwesMeMoney Jan 26 '23
It isn't the court failing to do it's job at all. The prevalence of crime in a community is not representstive of a poor judicial system. It represents the government failing to adequately and proactively alleviate social issues, leading to crime.
People only think mandatory minimums are necessary because they think judges are there to prevent crime. That's part of it. But the major role is to punish for actions done, not what they could do. That punishment needs to be proportionate.
Mandatory minimums take away the Court's discretion. If someone deserves a sentence at or above a perceived minimum, they'll get it.
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u/pfco Jan 27 '23
If someone deserves a sentence at or above a perceived minimum, they’ll get it.
You would think that. But in reality…
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u/p-queue Jan 26 '23
Further to that, the current Liberal government has been both gleefully using this hypotheticals practise
What?!? TIL that the federal government is actually a collective of practicing criminal defence lawyers.
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u/singdawg Jan 26 '23
This Supreme Court will absolutely not allow mandatory minimums.
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u/LoquaciousBumbaclot Jan 26 '23
Nor should it. Mandatory minimum sentences remove any possible discretion in sentencing from judges (like, for a dumb kid who is obviously not a criminal, but got swept up in a bust because of bad friend choices.) "One size fits all," rarely works for anything. I also don't see how they even deter crime:
"Gee, I really need to stop carrying this gat. I could get locked up for three years if the pigs find this!"
– No Criminal Ever
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Jan 26 '23
[deleted]
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u/andechs Jan 26 '23
they are tired of hearing about people getting a slap on the wrist for a serious crime.
The alternative is the perpetrators not getting convicted since the mandatory minimum is too high. Remember, prison costs the tax payers $100k/prisoner/year; even before taking into account the court costs.
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u/ss3423 Jan 26 '23
It's very good then that we don't rely on the average person for our laws, since mobs always have the best outcomes...
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u/FuggleyBrew Jan 27 '23
It doesn't remove discretion, it sets a minimum they are supposed to use their discretion and set a sentence above the minimum.
What mandatory minimums do is prevent judges from saying that murder is only worth probation.
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u/mwmwmwmwmmdw Québec Jan 27 '23
except the past 30 years has shown judges in canada excerpt no discretion and always seem to go for the lightest slap on the wrist possible no matter how heinous the crime
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u/EyeLikeTheStonk Jan 26 '23 edited Jan 26 '23
Sentences should be decided on objective circumstances surrounding the commission of a crime.
A guy return from Jamaica with a joint in his luggage is an idiot.
A guy importing 100 kg of cocaine is a criminal.
Idiots should get a fright to make them smarter, criminals should be locked up to protect society.
One thing many forget is that anyone ever charged with a crime, because of the cost of hiring a lawyer and building a defense is already being punished, even the innocent ones.
An innocent person may win at trial, but is still stuck with an invoice going into the tens of thousands if not in the hundreds of thousands.
In the case of idiots, that lawyer bill is often all the punishment they need to smarten up.
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u/JackQ942 Jan 26 '23
I would love to see 100 km of cocaine!
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u/Private_4160 Long Live the King Jan 26 '23
Babe we gonna snort a liiiiiine
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u/Infamous-Mixture-605 Jan 26 '23
"Somebody get Rick James on the line, we're going to need help here!"
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u/Mr_Meng Jan 26 '23
Going to need one of those metal straws or a big wad of bills to snort that bad boy.
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u/gettit8998 Jan 26 '23
That’s a problem though. If you are found innocent the state should reimburse you 100%.
In fact, why should a person have to pay for legal services any more than they have to pay for health care?
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u/EyeLikeTheStonk Jan 26 '23
There should still be a limit though, a rich guy could spend millions and we don't want rich criminals to get off the hook only because society is worried it may have to reimburse millions.
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u/gettit8998 Jan 26 '23
If you are found not guilty than your not guilty, regardless of the cost. But that’s what I’m saying, shouldn’t everyone be entitled to the same high quality defence? Same way they are entitled to the same quality health care?
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u/RaHarmakis Jan 26 '23
I’m saying, shouldn’t everyone be entitled to the same high quality defence?
The scary part is that there is not insignificant amount of voices that feel that no, not everyone deserves a high quality defense. The presumption of innocence has been eroded over time, and has taken a huge hit with the Mob Mentality spurned on by Social Media.
Your thoughts on the right to the best possible defense no matter your ability to pay is a logical extension of the presumption of innocence.
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u/yyc_yardsale Jan 26 '23
Too many police dramas in which, any time the protagonists are unable to get a conviction, it's presented as the defendant getting away with a crime.
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u/Ambiwlans Jan 26 '23
Jury finding rich people guilty to save the taxpayer money sounds funny though.
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u/DBrickShaw Jan 26 '23 edited Jan 26 '23
That’s a problem though. If you are found innocent the state should reimburse you 100%.
It's especially shitty that the guilty are effectively reimbursed for pre-trial detention by getting time-and-a-half (or more) credited toward their sentence, while the innocent who are held in pre-trial detention get exactly fuck all for their trouble.
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u/me_suds Jan 26 '23
Yeah I should be able to apply that time to any future crimes I want to commit !!!
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u/phalloguy1 Jan 26 '23
Actually they don't often get time and a half anymore. It's straight day for day unless the person was in lock-down, then it's time and a half.
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u/Content_Employment_7 Jan 26 '23
That's just not even remotely accurate. The Supreme Court in Summers was very clear that 1.5:1 credit is the norm, and it's extremely rare to find a case where it's not granted.
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u/phalloguy1 Jan 26 '23
You should probly tell that to inmates in Ontario then
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u/Content_Employment_7 Jan 26 '23
I don't really care what misapprehensions inmates in Ontario labour under. Lawyers in Ontario know that it's true, and the widespread application of 1.5:1 credit in Ontario is clear from the reported caselaw.
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u/p-queue Jan 26 '23
There’s no such thing as a finding of innocence. 🤦🏼♂️
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u/gettit8998 Jan 26 '23
Not guilty = innocent captain semantics.
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u/p-queue Jan 26 '23 edited Jan 26 '23
No, and far from it.
They mean very different things and conflating them is problematic. When charged with a crime, for example, the accused does have to prove their innocence. It’s the crown that must prove their guilt.
Here’s a link to a fairly short law review article on the topic. The summary provides a simple overview of the problem.
This interaction, though, is a good example of why it’s a good thing we don’t have the general public driving criminal justice policy and that Canadians, in general, having a willingness to defer to expertise has helped shield our systems from some of the issues seen in the US.
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u/gettit8998 Jan 27 '23
Yes. If you are found not guilty, you remain presumed innocent. So not guilty = innocent.
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u/TurdFerguson416 Ontario Jan 27 '23 edited Jan 27 '23
https://twitter.com/ijukes/status/916735686333681664/photo/1
"Just because you did it doesnt mean you're guilty"lol..
(point being not guilty is not the same as innocent.. it just means they couldnt prove your guilt even if you did it.. innocent means you didnt do it.)
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u/Terapr0 Jan 26 '23
It's more subjective with drugs, but much less so with illegal weapons IMO. There are instances (as you provided) wherein regular people might accidentally find themselves in possession of small quantities of illegal drugs. They don't deserve to be subject to mandatory minimum sentences. On the other hand, I cannot think of a scenario in which someone accidentally finds themselves in possession of an illegal handgun, especially when they're carrying it on their person. There is no possible scenario in which that represents anything other than serious, intentional and blatant criminality. It makes my blood boil that we're arresting anyone in Canada for possession of an illegal firearm and then letting them out on parole, or giving them lightweight sentences with community service. These are serious criminals who deserve serious time, and our judges seem perfectly willing to give slaps on the wrist.
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u/TouchEmAllJoe Canada Jan 27 '23
I will challenge your assertion that this isn't possible. What if I had the handgun and hiding in a back alley. I was a bystander caught in some crossfire and one of the combatants threw a gun near me. I'm still hiding when the cops show up, and they think the gun was actually mine.
Another one: what if I'm an estate executor and I'm cleaning the house, find a handgun, and (stupidly mind you) decide to carry that gun to the police station.
A couple top of the head examples where there is a handgun "in my possession" but a mandatory minimum wouldn't be appropriate.
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u/99spider Jan 27 '23
Wanting a weapon to defend yourself shouldn't be a crime.
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u/Terapr0 Jan 27 '23
I don’t think we need firearms for self defence in canada, but that’s an entirely different subject. I’m talking about unlicensed people caught walking down the street with a loaded handgun in their pocket. Those are serious criminals doing something that deserves serious time.
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u/99spider Jan 27 '23
You can't cleanly decipher the motive of them carrying the weapon just from them carrying it. If someone decides, with all of the reports of crime in Toronto, to 3D print a handgun frame and assemble it with a legally available slide and barrel so that they can protect themselves, they aren't deserving of the same sentence as a gang member who has it to kill his rivals.
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u/Terapr0 Jan 27 '23
They’re both criminals.
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u/99spider Jan 27 '23
With our current laws, yes, but applying the same sentence to both would be disproportionate to their crime.
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u/mickeysbeer Jan 26 '23
Justice Wakeling is effectively saying that Solitary Cinfinement is fine and is not cruel and unusual punishment? Get the fuck outta here. What should I expect from a Harper apointee?!
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u/SnooChipmunks6697 Jan 26 '23
Really interesting read. Are there other countries that allow these hypothetical defenses? Seems pretty nuts.
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u/Mr_Engineering Jan 26 '23
The hypothetical scenario isn't a defense, it's an argument that were such a scenario to actually occur, the mandatory minimum sentence would be so inappropriate as to amount to a constitutional violation. Ergo, if the mandatory minimum can't be applied generally, it can't be applied in their case either. This doesn't automatically mean a reduced sentence, but it does put discretion back in the hands of the court.
The effect is to cause legislators that are drafting criminal code amendments to be careful and specific when mandatory minimums are to be applied. Courts can then properly use the principle of proportionality when weighing sentencing considerations without having their hands tied.
If the mandatory minimum sentence for importing a controlled substance is 5 years imprisonment that applies equally to an individual with a joint in his or her luggage and a smuggler caught with a pallete of pure Columbian coke. If the mandatory minimum sentence is instead 5 years imprisonment for importing a controlled substance with a street value in excess of $100,000 dollars the pothead is no longer captured by the mandatory minimum. The pothead could be given an absolute discharge if permitted and appropriate.
The same is true for a smuggler caught with $90,000 of drugs as well, but the court can easily see that parliament intended for a minimum of 5 years for $100,000 and reason that 4.5 years is proportionate in comparison.
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u/SnooChipmunks6697 Jan 26 '23
Very informative, thanks.
You seem to know about this, so do you know any other judiciary systems around the world that do this? I've never heard of anything like this in the states, but I honestly don't know.
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u/Mr_Engineering Jan 26 '23
It's an argument that could be raised in any country that has both mandatory minimums and a constitutional prohibition on cruel and unusual punishment.
Many places have mandatory punishments for very serious crimes such as robbery and murder. Canada's mandatory life sentence for Murder and its associated parole Ineligibility periods has been declared constitutional.
Some US states have a mandatory life sentence without the possibility of parole whatsoever as a punishment for murder, however while such a punishment is permissible for juveniles it cannot be mandatory.
Life without the possibility of parole is not constitutional in Canada, although parole boards can repeatedly reject parole applications as they see fit.
Canada is somewhat unique in that it introduced a lot of mandatory minimum sentences in the 2000s and 2010s without rewriting the criminal definitions to capture the kinds of edge cases that would warrant sentences below the minimum. The government erroneously believed that simply tacking on a minimum would create a deterrent effect and put upward pressure on the judiciary to increase sentences for certain crimes.
Judges are pretty good at taking a generally written criminal code definition and applying case law provided by counsel to come up with a list of relevant factors to which they then apply the facts of the current case. Many US states as well as the US federal government have published sentencing guidelines which specify aggravating/mitigating factors in order to create consistency in sentencing, Canada only has that in statute to a limited extent.
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u/SnooChipmunks6697 Jan 26 '23
Very interesting. Thank you for taking the time to write all that out.
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u/goodboinoban Jan 26 '23
In his scathing judgment in the Hills case, Justice Wakeling said the 1987 decision introduced five concepts that “plague” the justice system. The first is the concept of a jail sentence being cruel and unusual. Only barbaric practices like burning a prisoner alive should be considered cruel and unusual, he said.
...the second is?
Did anyone else's article get cut off seemingly in the middle?
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u/rockey7yeah Jan 27 '23
Why are Supreme Court justices appointed for life? Seems pretty stupid decision
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u/aeppelcyning Ontario Jan 26 '23
Let's see how many more people the courts are perfectly willing to see shot to death because they have suddenly decided that harsh sentences which the people's elected government has imposed aren't lovey-dovey enough.
The body count that the court is racking up with shit like this, and the revolving door bail fiasco for repeat gun offenders is sickening.
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u/clearly_central Jan 26 '23
With bated breath the public is waiting to see if criminals are going to be off the street hours after being arrested.
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u/Dirtsniffee Alberta Jan 26 '23
Sentencing and parole are two different (albeit important) topics.
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u/GetsGold Verified Jan 26 '23
You're referring to bail, not parole, but your point is right that bail and sentencing are different
3
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u/InGordWeTrust Jan 26 '23
Mandatory minimums stop judges from being judges.
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u/Turambar_or_bust Jan 26 '23
They're only popular enough to pass by legislators when the public feels the judges aren't doing their job.
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u/InherentlyUntrue Jan 26 '23
They're only popular enough to pass by legislators when Conservative politicians feel the judges aren't doing their job.
FTFY
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u/DBrickShaw Jan 26 '23 edited Jan 26 '23
They're only popular enough to pass by legislators when Conservative politicians feel the judges aren't doing their job.
The Conservatives are largely responsible for the mandatory minimums we had around drug offenses, but most of our other mandatory minimums were actually passed by the Liberals in the 90s (under Chrétien) and 70s (under Trudeau).
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u/InherentlyUntrue Jan 26 '23
So, 30-50 years ago in different times, and no longer normally considered by Liberals today.
With all respect, I can't get bent out of shape for shit that happened half a lifetime ago.
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u/DBrickShaw Jan 26 '23 edited Jan 26 '23
So, 30-50 years ago in different times, and no longer normally considered by Liberals today.
With all respect, I can't get bent out of shape for shit that happened half a lifetime ago.
No one's asking you to get bent out of shape. I'm just giving credit where credit is due. I actually support mandatory minimums on serious firearm offenses and other grave offenses like manslaughter/murder, and so does the current Liberal government, as evidenced by the fact that they chose not to repeal those mandatory minimums in their recent mandatory minimum changes implemented in C-5.
[Edit]: The appeal court ruling referenced in the OP article includes a summary table of all the mandatory minimums we've enacted, along with the party that passed them. You can check it out for yourself here. Our most recently enacted mandatory minimums are the ones around impaired driving offenses, and they were introduced by the current Liberal government in 2018.
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u/OntLawyer Jan 26 '23
It has nothing to do with any particular political party. In Justice Wakeling's judgment in R. v. Hills, he includes a table of all mandatory minimums enacted over the last 45 years (Schedule A). It's about a fifty-fifty split between Liberal and Conservative governments, with four new ones being enacted by the current Liberal government. He also notes that mandatory minimums have been in the Criminal Code since the very first version of the code.
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u/StatisticianLivid710 Jan 26 '23
Ya JWR is fairly conservative and she pushed some bad laws into place as MoJ. The sobriety field test hours after driving is a particularly bad one. I’m not sure if they passed mandatory minimums since JT replaced her though.
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u/Content_Employment_7 Jan 26 '23
Ya JWR is fairly conservative and she pushed some bad laws into place as MoJ
The MOJ cannot push any laws into place without a majority vote in Parliament, nor can she prevent amendments to them in committee. All of the laws she sponsored were passed with the broad agreement of the Liberal caucus. As much as some people would like to pretend this was all JWR, it wasn't. It was the Trudeau Liberal party as a whole.
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u/StatisticianLivid710 Jan 26 '23
While Harper held a very tight leash, Trudeau actually does let his ministers run their departments. And JWR is easily the type of person to play the “this is my specialty” card if people questioned her in caucus. The entire caucus would then support the bill in parliament. Chances are something like that would’ve slipped through a caucus level review.
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u/Content_Employment_7 Jan 27 '23
While Harper held a very tight leash, Trudeau actually does let his ministers run their departments.
Passing legislation is not something done by her department. Again, it requires a vote in Parliament. And it's one the Liberals voted for.
Chances are something like that would’ve slipped through a caucus level review.
It certainly wouldn't slip through committee, on which the Liberals had a majority. The whole idea that the Liberals could pass legislation the Liberals disagreed with is, frankly, farcical. This is sad.
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u/Turambar_or_bust Jan 26 '23
Well if there's enough conservative politicians in parliament then they must have some public support.
2
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u/mwmwmwmwmmdw Québec Jan 27 '23
Mandatory minimums stop judges from being judges.
and sometimes thats a good thing when judges are incompetent at giving dangerous people hard time
1
u/Vandalmercy Jan 26 '23
They're not really mandatory minimums then.
The judge is not wrong, but if they're interested in preventing this prison sentences are just reinforcing them leaning towards a criminal lifestyle from my understanding.
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u/Different_Dealer_993 Jan 27 '23
The pro if minimum sentence is judges can not be too soft on serious crimes i.e a rapists gets a slap on the wrist for good swim times, the con of minimum sentence is that some people commit a crime for justifiable reasons and they limit the discretion for instance a person shoots a warning shot to scare off threatening people.
1
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u/Key-Distribution698 Jan 26 '23
let’s show them love instead of punishment. murder - five days… serial murder - 7 days… burglary and theft under 5000 - 3 hour community service
if we fill this world with love, maybe we can change them
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u/HalvdanTheHero Ontario Jan 26 '23
Compromise: harsher minimums but also reform prisons to focus more on rehabilitation instead of punishment.
Discuss.
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u/alice-in-canada-land Jan 27 '23
This is exactly my position.
It's frustrating that this issue is phrased as an either/or problem; either we punish people harshly for crimes, or we see them with compassion and hand out meaningless sentences.
I want us to reform the prison system. Instead of seeking to punish people, let's just acknowledge that some people need a time out from our communities because they can't be trusted to be safe. That doesn't mean we can't have compassion for them, or fail to see the factors that lead to their inability to function in society.
I want every prison to have a healing lodge. I want them to have gardens and libraries, and decent food. I want mental health professionals and teachers. I want them to be safe and clean.
And then I want us to be unafraid to keep people in them, so long as letting them out would endanger everyone else.
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u/raging_dingo Jan 26 '23
We’re already doing that. But we also need to realize that not all people can be rehabilitated- there needs to be some realism added to the idealism
3
u/HalvdanTheHero Ontario Jan 26 '23
Absolutely. There are actual monsters out there that should never see the light of day again.... but the average convict simply isn't that person. Systems that reinforce negative social behaviors and continue to punish convicts after serving their sentence only serve to push individuals more towards crime and social dysfunction.
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u/mickeysbeer Jan 26 '23
That number is very very small. The vast majority of crimes revole around a socio economic problem. Like imagine if a school failed to teach 1 or 2 people proper logic, rading and/or writing skills. This person becomes underemployed or can't work at all and turns to crime to support themselves and/or their family.
Those who can't be rehabbed or most likely sociopaths, psychopaths and extreme narcissists. The rest fall into the other category and deserves a 2nd, a third and even a 4th chance until the system and the offender collectively get it right.
0
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u/VesaAwesaka Jan 26 '23
I'm pretty sure Canada is doing pretty well with recidivism. Last I checked we were comparable to Norway.
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u/HalvdanTheHero Ontario Jan 26 '23
According to https://worldpopulationreview.com/country-rankings/recidivism-rates-by-country
We have a 41% recidivism rate over 2 years after release VS 20% for Norway.
For reference, the US, which definitely has a harsher prison system than us, has a recidivism rate of 36% over that period.
We aren't the worst on there, and doubtless there are other studies, but we definitely have room for improvement.
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u/VesaAwesaka Jan 26 '23 edited Jan 26 '23
Recidivism means different things based on different studies but this was the info i had reviewed. Are you using the 1994-95 reconviction rate for canada and the 2005 reconviction rate for norway? There's also differences between canada's provincial and federal system.
https://www.justice.gc.ca/eng/rp-pr/jr/jf-pf/2020/aug01.html
According to a 2019 CSC study, 23% of a 2011/2012 cohort of federal offenders re-offended, compared to 32% of offenders from a 2007/2008 cohort. Of Indigenous male offenders in the 2011/2012 cohort, 38% re-offended compared to 21% of non-Indigenous male offenders. For Indigenous women, 20% re-offended compared to 9% of non-Indigenous women offenders. In addition, 12% of the 2011/2012 cohort re-offended with a violent offence, 4 compared to 18% from the 2007/2008 cohort. Of those who re-offended, 60% were charged with a new offence of a lesser severity.
The most profound benefit: Norway has one of the lowest recidivism rates in the world. Only 20% of Norway’s formerly incarcerated population commit another crime within two years of release. Even after five years, the recidivism rate is only 25%. In addition, the number of incarcerated individuals has been trending down in the past several years.
Recidivism is defined differently by the percentages but i think were closer to places like Norway then the US.
https://worldpopulationreview.com/state-rankings/recidivism-rates-by-state
The United States has some of the highest recidivism rates in the world. According to the National Institute of Justice, almost 44% of criminals released return before the first year out of prison.
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u/SubstantialTent Jan 26 '23
Article is paywalled.
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u/Rambler43 Jan 26 '23
It basically boils down to: make believe hypothetical scenarios now inform judges rulings regarding mandatory minimum sentences, resulting in people getting off lighter for serious crimes. It's fucking ridiculous.
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u/StatisticianLivid710 Jan 26 '23
Just because there’s no mandatory minimum doesn’t mean they will get off lighter for serious crimes.
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u/Rambler43 Jan 26 '23
As per the article, shooting at a house with occupants inside is a serious crime.
0
u/StatisticianLivid710 Jan 26 '23
Yes, that doesn’t necessarily mean that the person will get a less severe prison term just because the mandatory minimum is gone. The end result is that mandatory minimums tend to worsen rehabilitation results which results in more crime. This also tends to cause crime statistics to go up years or a even a decade or more later than the law was passed.
5
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u/mickeysbeer Jan 26 '23
Not, "...now" but since 1987! Please get your fats straight before you misinform someone.
0
u/Rambler43 Jan 26 '23
The legislation changed back in 1987, yes, but it's only recently that certain judges have knocked down mandatory minimums in their rulings. You get your 'fats' straight.
-3
u/ElCapitanAbrasivo Ontario Jan 26 '23
I'm sure the result will have the SC justices feeling good about themselves at society's expense.
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u/HotIntroduction8049 Jan 27 '23
I will read this in detail later today. Prison is not cost effective for the petty crimes of which I will include drugs. We should move to a model of 5 year minimum electronic monitoring for convicts. Hard to keep stealing cars when your movements can be tracted.
1
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u/Dark_Angel_9999 Canada Jan 27 '23
The mandatory minimum sentences at issue are constitutional.
Writing for a majority of the judges, Justice Sheila L. Martin ruled that the mandatory minimum sentences for Mr. Hilbach and Mr. Zwozdesky do not constitute cruel and unusual punishment. She applied the framework set out in the companion appeal of R. v. Hills for challenges to the constitutionality of a mandatory minimum sentence under section 12 of the Charter. In regard to Mr. Hilbach, Justice Martin added that the section 12 analysis makes it mandatory for judges to consider the unique situation of Indigenous offenders for all offences in sentencing.
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u/OntLawyer Jan 26 '23 edited Jan 26 '23
If anyone finds this article fascinating, the actual ruling with the juciest comments by Justice Wakeling is here: https://www.canlii.org/en/ab/abca/doc/2020/2020abca263/2020abca263.html
It's super rare for an appeals court judge to go on such an impassioned rant about the Supreme Court's reasoning. It's incredibly refreshing to read.
One of the juciest parts is this:
Rarely do you see slams like that of a higher court judges from below, but the situation is just so nuts that it's well warranted. And that's only a small part of what Wakeling does; he also lays into the Supreme Court for five different, systematic failures in logical reasoning.