Mandatory Minimum Sentences
Sentences should be based on individual contextual factors relating to each offence, rather than legislated minimum sentences that result in ineffective, expensive, and unduly harsh periods of incarceration.
Mandatory minimums and consecutive sentences do not deter crime. Rather, lengthier periods of incarceration may actually increase the likelihood of recidivism among offenders. Offenders simply do not consider the length of sentence when deciding whether or not to commit an offense. Rather, their concern lies with whether or not they will be caught and punished for the offense. Accordingly, mechanisms that promote severity of punishment as the ultimate sentencing rationale will fail to yield tangible deterrent effects.
While the CCJA recognizes the public’s desire to punish violent offenders the judiciary must be allowed to continue utilizing their discretionary power under section 718 to punish and incarcerate offenders who are deemed dangerous, and to apply more lenient sentences where circumstances are appropriate.
Mandatory minimum penalties inevitably have a disproportionate impact upon minority groups such as aboriginal offenders. At the same time they eliminate options for absolute and conditional discharges, probation and conditional sentences. Mandatory minimum sentences thereby also increase the rate and volume of incarceration. Continuing and expanding use of incarceration will further increase the costs of criminal justice for federal and provincial corrections with no proof that these sentences will improve public safety.
In 1995, Parliament enacted section 718 of the Criminal Code in response to numerous studies and commissions on sentencing, and as a means of ensuring public safety. In doing so, they also sought to increase the effectiveness of sentencing as a deterrent and rehabilitative mechanism. Section 718 limited the use of incarceration as a sentencing tool, but still provided the option to judges when the particular offense before them warranted a period of incarceration. Judicial discretion is a hallmark of the Canadian criminal justice system. No person is in a better position to consider the myriad of factors necessary to reach the appropriate sanction then that of the sentencing judge. They hear all of the admissible evidence, and possess the requisite experience to come to the appropriate conclusion. This is why the Canadian Sentencing Commission recommended the abolition of all mandatory sentences of imprisonment, with the exception of the sentence for murder.
Increasing the number of offenders in prison does not mean that offences stop occurring. The United States has over two million people in its prisons, one of the highest rates of incarceration in the world. Yet, the U.S. also has one of the highest violent crime rates in the world. Clearly, incapacitation, even at this staggering level has had no effect on crime reduction. Although Canadian rates of incarceration are generally smaller, they also have had no effect on the crime rate. Indeed, a report of the National Crime Prevention Council of Canada in 1997 noted that Canada has always had a high incarceration rate compared to other Western nations.
One American study on mandatory minimums for gun crimes found, that harsh penalties increased defendants’ incentives to go to trial rather than plead guilty. Mandatory sentences lead to more trials, appeals and prison overcrowding. This in turn impacts on the release planning and reintegration efforts of offenders and contributes to recidivism. Overcrowding soaks up vast quantities of resources with negative rather than positive impacts, diverting resources away from treatment and programs for those who might benefit from them. Americans’ concern and dissatisfaction with their criminal justice system has led to a major initiative to conduct a sweeping bi-partisan review of the total system and the excessive reliance on incarceration, an initiative that we recommend should also be undertaken in Canada.
Sentence length, and thereby the level of incarceration, will increase as a result of Bill C-10 which creates new mandatory minimum penalties and increases those already existing in law for certain sexual offences against young people as well as creating mandatory minimum sentences for certain drug offences.