This is my column in today’s Ottawa Citizen about the folly of mandatory minimum sentences:
Minimum sentences not proven to work

Lawyers, judges unhappy about new Conservative law
NOVEMBER 17, 2012

Last week, with relatively little fanfare, a slew of mandatory minimum sentencing provisions, portions of the government’s Safe Streets and Communities Act, came into force.
These amendments create minimum jail sentences for a wide range of drug offences, ranging from the cultivation of six or more marijuana plants to the production and trafficking of “hard” drugs, such as cocaine or heroin. These new sentences create minimum penalties of six months to three years imprisonment.
Mandatory minimum sentences are nothing new in Canadian law. However, while they were formerly reserved for the most serious offences — such as murder and high treason — they have been increasingly used to address all kinds of criminal conduct, including sex, weapons and drug crimes.
According to the government, mandatory minimum sentences serve to denounce illegal conduct and deter would-be offenders. They keep Canadians safe, say their proponents.
This new approach to sentencing has attracted a great deal of controversy. In committee hearings at the House of Commons and the Senate, parliamentarians heard expert evidence about the ineffectiveness of minimum sentences.
Academics and researchers have long pointed to the absence of evidence that might establish any beneficial link between minimum sentences and public safety. And they have been looking for a long time.
In fact, as far back as 1984, the Canadian Sentencing Commission concluded that mandatory sentences do not serve to deter potential criminals. The commission further found that mandatory sentences strip judges of the ability to impose fair sentences which accurately reflect the specific circumstances of the offence and the offender.
A 1994 Department of Justice study, researching the impact of minimum sentences for the use of a firearm in the commission of an offence, similarly failed to find a link between minimum jail sentences and the deterrence of potential offenders.
Aside from the ineffectiveness of minimum sentences, courts are increasingly addressing whether certain minimum sentences violate the Charter of Rights and Freedoms.
In two recent decisions about gun-related offences, judges from both the Ontario Court of Justice and the Superior Court found the minimum sentences to be arbitrary, unlawful and ultimately unconstitutional.
Judges have also aired their concerns outside the courtroom. Former Supreme Court justice Louise Arbour dubbed the new mandatory minimum sentences for drug offences “very bad criminal law policy,” echoing the concerns of others, and pointing to the “disconnect” between the recent amendments and social realities.
But judges aren’t the only justice system participants who are apprehensive about minimum sentences.
Defence counsel, represented by organizations such as the Criminal Lawyers’ Association and the Canadian Bar Association, have also sounded off, expressing their opposition to minimum sentences in the media and at parliamentary committee hearings.
Representatives of the defence bar noted that, despite the government’s assertion that these measures are necessary to protect the public and prevent crime, Canada’s crime rate has been steadily declining since the early 1990s and currently stands at its lowest level since 1972.
Lest one be tempted to chalk up these concerns to the bleating of thug-hugging defence lawyers and liberal judges, Crown prosecutors have also sounded the alarm about the dangers of mandatory minimum sentences.
In a recent interview with the Globe and Mail, Rick Woodburn, the president of the Canadian Association of Crown Counsel, bemoaned the effect of the new sentencing provisions on the plea bargaining process, as prosecutors are no longer able to offer non-jail resolutions in exchange for guilty pleas. “It ties our hands, effectively,” he said.
Other senior Crown prosecutors have pointed to the strain on the justice system, in terms of both human and financial resources, caused by the new mandatory minimum sentences. According to Lisa Blais, president of the Association of Justice Counsel, prosecutors were already “doing more with less” before the recent amendments. She expressed “grave concerns” about the effect of the new provisions on the rights of the accused to a speedy trial.
Perhaps the most pernicious effect of minimum sentences is its failure to account for the unique circumstances of different accused persons charged with the same offences.
Consider, for instance, the difference in moral blameworthiness between the drug-dealing gangster who carries a loaded handgun and the target shooter who forgets to renew his firearms licence but continues to possess his .22-calibre revolver and ammunition.
Both can be charged under the same section of the Criminal Code. And now, both can be subject to a three-year mandatory sentence of imprisonment. Where the Crown elects to proceed by indictment, a judge has no choice but to send both individuals to the penitentiary for three years.
While the absent-minded gun owner has lost his freedom, Canadians have been unjustly deprived of something far more valuable — a criminal justice system built on restraint, proportionality and the discretionary exercise of judgment in the sentencing process.
Solomon Friedman is a criminal defence lawyer with Edelson Clifford D’Angelo LLP. He can be reached at or 613-237-2290. Follow Solomon on Twitter at or at his website,

Read the original story here.