David Butt is a Toronto-based criminal lawyer.
Last week, yet another mandatory minimum sentence bit the dust. An Ontario Superior Court judge, Bruce Durno, a judge with an impeccable pedigree in criminal law stretching back for decades, and a judge widely acknowledged within the profession as scrupulously fair-minded, said the mandatory minimum sentence for growing more than six marijuana plants could be cruel and unusual punishment, so down it went.
The pot plant mandatory minimum falls into what is now an embarrassingly crowded trash bin of similar minimum sentences that have run afoul of our Charter of Rights. But it didn't have to be this way. With a modest tweak to Parliament's current approach, all these polarizing clashes could have been avoided.
In an election season it is tempting to frame the debate about mandatory minimum sentences in political terms. The right-leaning political argument is that unelected, soft-on-crime judges are thwarting the will of a democratically elected Parliament taking a strong stand against serious offenders. The left-leaning political argument is that compassion and sensitivity to personal circumstances, so essential to a just sentence, are cruelly eliminated from the balance by mandatory minimum sentences.
Both of these arguments are caricatures that misrepresent a much more nuanced and apolitical reality that all professional participants in the criminal justice system face every day.
On the one hand, certainty in sentencing has benefits that have nothing to do with right-leaning political beliefs. Long before mandatory minimum sentencing escalated in prominence, the courts themselves fostered a deep tradition of sentencing ranges or tariffs for particular crimes, and insisted that those tariffs be applied consistently. Even without mandatory minimums, every good criminal lawyer and judge knew with reasonable certainty the going rate for a particular crime. So discussions and arguments about what sentence to pass were always premised on the going rate. Disagreement between the prosecution and defence was almost always within a responsibly constrained range of options, and the vast majority of criminal cases settled by agreement.
On the other hand, experience has repeatedly taught that there is always a tiny minority of cases that are truly statistical outliers. The facts of these rare cases are so unusual, sometimes so bizarre, that they cry out for differential treatment, for departure from the prevailing tariff. These outlier cases are by no means common. They do not undermine the wisdom of the prevailing tariff for that particular crime. Indeed they are the exceptions that by their uniqueness actually demonstrate the wisdom of the prevailing tariff. Treating these outlier cases differently has nothing to do with softness or left-leaning political beliefs, and everything to do with simply recognizing a statistical anomaly for what it is.
Our democratically elected parliamentarians have the duty to establish sentencing benchmarks that they believe reflect national values on how different crimes should be punished. And again, contrary to some of the less responsible political rhetoric, judges have a long and proud tradition of thoughtfully implementing, not thwarting, the will of Parliament. So there is nothing at all problematic in principle with Parliament passing and judges imposing mandatory minimum sentences. That is not the only way to approach sentencing, but it is certainly an available legislative option. Mandatory minimum sentences deliver clarity to a sentencing system in which, generally speaking, clarity is a virtue.
The problem arises when Parliament ignores the inevitability of the statistical outlier, the rare case that truly cannot fit the mould of a mandatory minimum sentence. In these rare cases, the mandatory minimum would be grossly disproportionate and therefore cruel. Faced with such a statistical outlier case, the judge has no choice but to strike down the entire mandatory minimum scheme. So a mandatory minimum sentence that works just fine in the overwhelming majority of cases will be struck down because we quite rightly refuse to tolerate a cruel law, even if it is cruel only rarely. When it comes to striking down mandatory minimum sentences, the tail wags the dog.
The fix to this polarizing problem is simple. Enact presumptive minimum sentences: Write the law so that the convicted criminal will receive the prescribed mandatory penalty, unless he or she demonstrates that his or her case is so unique that the mandatory penalty would be grossly disproportionate. A presumptive minimum sentence is a mandatory minimum with a narrow escape clause. Other jurisdictions use precisely this tool. A presumptive minimum sentence delivers the certainty and moral clarity that make mandatory minimum sentences attractive. And the narrow escape clause in the presumptive minimum sentence delivers the flexibility actually needed to address rare statistical outliers.
And the tail will no longer wag the dog.