Pubdate: Tue, 27 Nov 2007 Source: Ottawa Citizen (CN ON) Copyright: 2007 The Ottawa Citizen Contact: http://www.canada.com/ottawacitizen/letters.html Website: http://www.canada.com/ottawacitizen/ Details: http://www.mapinc.org/media/326 Author: Don Butler, The Ottawa Citizen Bookmark: http://www.mapinc.org/find?199 (Mandatory Minimum Sentencing) MANDATORY SENTENCES 'NAIVE': EXPERTS Most Agree With Gomery Criticism of Tory Plan Most legal experts agree with retired judge John Gomery's criticism of new mandatory minimum sentences being proposed by the Harper government, calling them simplistic and likely to produce unjust outcomes. Sentencing is a very complex task, says Ed Ratushny, a law professor at the University of Ottawa, requiring judges to consider the circumstances of the crime, the background of the offender and mitigating circumstances. But mandatory sentences remove that judicial discretion, he says. That increases the risk of unjust sentences. "Because it doesn't allow for a proper balancing of all the factors, it could result in sentences that are inappropriate," he says, calling the growing reliance on mandatory minimums to fight crime "simplistic and naive." But Mr. Ratushny scoffed at Mr. Gomery's complaint that the proposal to create mandatory jail terms for drug offenders was a "slap in the face" to judges. "I think it's quite frankly silly," he said. "I don't think judges somehow think a change in the law is insulting to them." However, William Trudell, head of the Canadian Council of Criminal Defence Lawyers, agrees that mandatory minimums reflect a lack of political trust in the judiciary. "What it says is, 'we don't trust you, judge.'" David Paciocco, a former Crown prosecutor who teaches law at the University of Ottawa, says sentencing must be proportional to the seriousness of the crime and the blameworthiness of the offender. While mandatory minimums might address the seriousness of the offence in general, "they can't get to the seriousness of the particular offence, and the thing they miss entirely is the blameworthiness of the offender. As a result, judges can end up imposing very unjust punishments," he says. Mr. Paciocco says the criminal justice system has always kept defence counsel "on a short leash" because judges can take extenuating circumstances into account when it comes time to impose sentence. "If you take away that sentencing discretion, the system can become blunt and at times even cruel." Apart from the human misery they impose, mandatory minimum sentences generate huge costs for taxpayers, Mr. Paciocco says. "It's horrendously expensive to incarcerate people," he says. "You really have to, in a sensible world, make a case-by-case assessment as to whether it's appropriate, just from a fiscal point of view." Canada currently has 42 offences that carry mandatory minimum sentences. There were mandatory minimums as far back as 1892, when the Criminal Code was created. By 1969, only one remained. But governments have increasingly turned to mandatory minimums since then, adding five in 1976, 19 in 1995 and more in 2005 related to child sexual exploitation. Canada is not alone; most western nations have enacted mandatory sentences in recent years. But most allow a limited degree of judicial discretion in exceptional circumstances -- something notably absent in Canada. Mr. Trudell's organization wants the government to let judges weigh whether a minimum penalty is necessary "having regard to the public interest, the particular needs of the community and the interests of the accused." "This would represent some kind of a balance," he says. "It would really say that we trust the system." But the suggestion was not adopted when the government brought in its omnibus crime bill, which increases mandatory minimum penalties for a variety of crimes. The bill is expected to receive third reading next month. Earlier this month, the Supreme Court of Canada heard a case that illustrates the difficulties the one-size-fits-all approach of mandatory minimums can present. The case concerned Michael Ferguson, a former Alberta Mountie who shot a prisoner to death during a struggle in a holding cell after the prisoner pulled the officer's gun from his holster. After two hung juries, Mr. Ferguson was finally convicted of manslaughter at his third trial in 1999 -- an offence that carries a four-year mandatory prison term if it involves a firearm. But the presiding judge balked at imposing that sentence, given the circumstances and Mr. Ferguson's previously unblemished 19-year record as a Mountie. Instead, he invoked an unprecedented "constitutional exemption" and imposed a two-year conditional sentence. The trial judge's ruling was reversed by Alberta's Court of Appeal, which reimposed the mandatory four-year sentence. On Nov. 13, the case came before the Supreme Court of Canada, which reserved its decision. Based on the court's record, Mr. Ferguson's chances probably aren't good. Except for an early Charter of Rights case in 1987 when it struck down the mandatory seven-year minimum sentence for importing drugs, the court has taken a hands-off approach to minimum sentences. - --- MAP posted-by: Richard Lake