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Mandatory Minimums

Rigorous Law<br>Rigorous Injustice
Beryl P. Wajsman 8 May 2006

“Extreme law always results in extreme injustice “

~ Cicero, “De Oficiis”


In its first one hundred days the Harper administration revived pride in our military through the Prime Minister’s visit to our troops in Kandahar; renewed purpose in our foreign policy by cutting off funding to the Hamas-led government in the Palestinian Authority until it renounces violence and recognizes Israel; and restored prudence in Canada’s economic affairs with a well-respected budget. It is therefore disappointing to see it resort to pandering to the fear and ignorance of Canadians in its justice policies presented last week.


The proposal for mandatory minimum sentencing is unjustified in fact and in law. Almost all western jurisdictions have eliminated it. There is no proof that it has any deterrent effect. And the costs associated with its implementation would be better put into the hiring of more police officers who, as “visible” deterrents, have proven time and again to be the most effective resource in combating crime. This proposal, and its companion piece which would severely reduce the conditional sentencing powers of judges, are nothing more than politically motivated gestures that sound good to the ears of the lowest common denominators among Canadians.


The impetus for the current proposals started over a year ago with the murders of four RCMP officers in Alberta and continued through the Yonge St. shooting of a young woman in Toronto. The deaths of the victims of violent crimes will be all the more tragic if they produce a legacy of national reaction for legal recidivism. Not every problem can be solved by legislation. No politician should pretend it can and be allowed to put into force straightjacket law. As Cicero wrote some two thousand years ago, “Extreme law always results in extreme injustice.”


According to police statistics 80% of all gun crimes are committed in moments of passion or by hardened criminals. The latter will not be moved by mandatory minimums. The former cannot be. Indeed just a day after these proposals were announced, a police officer was shot to death in Windsor. The only effect of mandatory minimums for gun and drug crimes, and the unconditional sentencing provisions accompanying them, will be to compromise compassion in our courts and reduce the resources for rehabilitation in our penal system.


Canada today has 12,400 persons incarcerated in prisons. These new proposals could see that number increase by 5,500. The federal government has allocated $245 million for the construction of new prisons to handle the increased prisoner population. That money would be better spent on hiring more police officers at all levels.


The United States has the largest prison population in the world. This has been the result of increased use of mandatory minimums. Yet violent crimes have not been reduced to any significant degree on a national scale. However, one of the few successful cases of an important reduction in gun and drug crime has been New York City. Then Mayor Rudy Giuliani, himself a former federal prosecutor, did not want more law. He rejected mandatory minimums and unconditional sentencing. What he did do was increase the police force from some 25,000 officers to 35,000. More police. More patrols. More visible deterrence. More investigators. The result? Gun, drug and violent crimes in New York have plummeted over the past ten years.


The reason is clear enough. Any security expert will tell you that if you want to protect your home, the first thing to invest in is not a sophisticated electronic surveillance system that is invisible to the naked eye. The biggest bang for the buck is to install a big horn right over your front door. Criminals don’t think about laws or deterrents they can’t see. They do think twice when they see two-officer patrols instead of one-officer cruisers, and regular half-hour oversight instead of hourly tours. They think twice when they see a horn that could wake up the whole neighbourhood. The officer in Windsor might not be dead today if he had been partnered. He had time to return fire on the men who killed him. Sadly, he was one gun against two.


Rigorous law does not reduce crime. Enforcement authority and personnel do. It is the same story with capital punishment. Those who kill, either in the heat of passion or with professional pre-meditation, don’t think about laws. They don’t think they are going to get caught. Among the reasons is the sure knowledge that law-enforcement resources are strained to capacity. The overwhelming number of murders and bank robberies are never solved. It is interesting to note that there are only some half-dozen countries outside the Islamic world that still enforce the death penalty. And those countries -among them the United States, China, Iran and North Korea - have  the highest violent crime rates in the world. Western European and Scandinavian nations that long ago eliminated the death penalty, but kept the number of police officers at higher and ever increasing levels, have the lowest rates of violent crime in the world. The key is not more law. We have enough of that. They key is to have enough personnel to deter, investigate and enforce.

Canada already has 29 offences that carry mandatory minimum sentences Nineteen were added to the Criminal Code in 1995 as part of a package of changes under the Chrétien administration. Many were for firearms offences. The Harper government’s proposals to add 19 new ones flies in the face of reason and evidence. Canada has 1.9 violent deaths per 100,000 people. The United States has 5.5 per 100,000 and the U.S. has had mandatory minimums far longer than Canada. They have not worked down south while Canada’s violent-crime rates have been going down for decades. Even before the Liberals’ 1995 additions.

This justice package is nothing more that what Jeffrey Simpson called “pandering to perception”. He cites Prof. Julian Roberts of Oxford University who surveyed mandatory minimums for gun crimes in a range of countries. Roberts concluded: "The studies that have examined the impact of these laws reported variable effects on prison populations, and no discernible effect on crime rates."

As for drug crimes, a worldwide study by Prof. Thomas Gabor of the University of Ottawa and Nicole Crutcher of Carleton University concluded: "Severe mandatory minimum sentencing seems to be least effective in relation to drug offences. . . . Drug consumption and drug-related crime seem to be unaffected, in any measurable way.

A 1999 report for the Department of the Solicitor-General concluded, after surveying 50 studies involving 300,000 offenders, that "longer sentences were not associated with reduced recidivism. In fact, the opposite was found. Longer sentences were associated with a 3-per-cent increase in recidivism." As far back as 1952 the Canadian Sentencing Commission and the Royal Commission on the Revision of the Criminal Code recommended against them. Prisons become graduate schools for crime.

But perhaps the most troubling aspect of the Tories’ justice package is the lengthening of sentences for drug crimes and removal of judges’ prerogatives on conditionality. After some thirteen years of Liberal government that imposed layers of statocratic social engineering legislation on us, we cannot afford to usher in a new era of Tory legislation regulating our morality. Whether or not someone wants to take drugs is simply not the state’s business. It’s time to rollback a good part of the Criminal Code. It is not the state’s role to impose virtue. And that was the promise of the Harper campaign. Less government interference in areas of private domain. Protecting you from me. Not protecting me from me. This justice package does not auger well for that promise.

This nation still seems to be caught up in the sweep of the new prohibitionists. First to restrict, last to discuss. The dark-side of  our governors is that they engage in unbridled intervention to punish the governed into virtuous conduct. And that should be nobody’s business. Liberal or Conservative.




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