Ontario鈥檚 Court of Appeal has sided with judges, lawyers and civil-rights advocates opposed to mandatory minimum sentences for gun possession, saying they amount to cruel and unusual punishment and are thus unconstitutional. It was a measure implemented mainly for political reasons.
The sentencing laws, part of the Harper government鈥檚 2008 omnibus bill, meant someone could be sent to prison for three years for something as minor as a licence violation, creating what the Ontario court called a 鈥渃avernous disconnect鈥� between the seriousness of the offence and the severity of the sentence.
In January, a sa国际传媒 provincial court judge, considering the case of a man with no criminal record caught carrying a loaded pistol, said the mandatory minimum sentence was arbitrary and unjust, violating the Canadian Charter of Rights and Freedoms.
Some gun-toting offenders deserve to go to prison for three years and some don鈥檛 鈥� the law takes away a judge鈥檚 ability to make that distinction. The Ontario court said such a law could not 鈥減retend to have any fidelity to the search for truth in the criminal justice system.鈥� It might more succinctly be described by the assertion from Mr. Bumble in Oliver Twist that 鈥渢he law is a ass 鈥� a idiot.鈥�
A case in point occurred last March when home-care workers found a loaded handgun in the home of a Sidney senior, a decorated veteran of the Second World War. According to the law, he should have been handed a minimum sentence of three years for possession of an unregistered, prohibited firearm. It took a bit of legal dancing, but Lynn Henshaw, 86, ended up with an absolute discharge, forfeiture of his pistol and a 10-year ban on owning firearms, a far more suitable outcome than that envisioned by the flawed law.
Minimum sentencing is part of Prime Minister Stephen Harper鈥檚 get-tough-on-crime efforts, but rather than improving the administration of justice, it has hindered it. The certainty of jail time reduces an accused person鈥檚 motivation to plead guilty.
鈥淲hen an accused person pleads guilty,鈥� wrote Victoria lawyer Michael Mulligan last month in a sa国际传媒 commentary, 鈥渞elatively little time and expense is incurred in terms of judicial, prosecutorial, police and legal-aid resources 鈥� to say nothing of the costs borne by witnesses, jurors and others. A guilty plea and sentencing might consume only a few minutes of court time. A trial of the same case might require days or weeks.
鈥淲hen judges are deprived of any discretion in sentencing, such that the sentence imposed following a guilty plea would be the same as what would occur in the event of a conviction following trial, the result is exactly what you would expect 鈥� more trials.鈥�
Policies intended to be tough on crime don鈥檛 reduce crime, says York University鈥檚 Lynn Fournier-Ruggles in the October 2011 Journal of Public Policy, Administration and Law. 鈥淭hey do serve, however, to feed off the public鈥檚 anxiety and mood for more punitive measures.鈥�
So it would seem that Harper鈥檚 priority is more about capturing votes than catching criminals.
Minimum-sentence measures are likely to reach the Supreme Court of sa国际传媒. Although the high court is not bound by objections from sa国际传媒 provincial court and a ruling from the Ontario Court of Appeal, it is not unreasonable to think it will make similar findings. That would inject reason into an unreasonable law.
While the political process has a necessary role in shaping the law of the land, justice should not be eroded by politics.
