Federal government plans to reduce use of mandatory minimum prison sentences

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The Trudeau government intends to cut widespread use of mandatory minimum sentences by giving judges back their discretion over punishment, Justice Minister Jody Wilson-Raybould says.

The changes will undo a major element of the Harper government's tough-on-crime agenda. Judges will be given the "appropriate discretion to be able to impose sentences, engage and understand – as they do better than anybody else – the individual that is before them," the Justice Minister told The Globe and Mail in an interview as the Liberals near the end of their first year in power. "To base their decisions on the actual circumstances of the case before them and render judgment."

She said new legislation on mandatory minimums is coming soon, "certainly in the early part of next year." Last month, the government gave judges back the discretion they had lost in 2013 over the victim surcharge – a financial penalty from which judges once routinely exempted impoverished offenders, until it became mandatory.

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A new federal law rolling back mandatory minimum terms could cut the number of Canadians incarcerated, which is high despite falling crime rates. It could also reduce the rates of indigenous people behind bars. One in four federal prisoners is indigenous, although aboriginal people accounted for just 4.3 per cent of Canadians in the 2011 census.

Prime Minister Justin Trudeau asked Ms. Wilson-Raybould in his mandate letter to review 10 years of criminal-justice changes under the Conservative government of Stephen Harper. The Liberal justice agenda was dominated during the first year by the arduous process of passing the country's first federal law allowing assisted dying in some circumstances. In the past few months, Ms. Wilson-Raybould also took part in several roundtable discussions on the criminal justice system with lawyers, professors, community groups and judges, and several participants at one such meeting told The Globe the common messages were that too many people are incarcerated, and that the role of judges had been diminished.

Ms. Wilson-Raybould picked up on those themes when asked in the interview what her overarching goal is.

"Ensuring that – someone said this in one of my roundtables – we can inject the justice back into the justice system," she said, adding that too many people are in prison who should not be.

"I think that a lot of people that present themselves as offenders in the criminal justice system are there for other reasons than that they're inherently criminal. I think our justice system has become a catch-all for the challenges and problems we face in society." She cited marginalization because of mental illness, addiction, poverty and indigenous issues.

Ms. Wilson-Raybould said she has a long-standing belief in judges' ability to craft sentences tailored to the individual.

"I've always felt that, from the time I was a prosecutor to now being the Justice Minister. I think judges are in a unique position."

The Conservatives imposed 60 mandatory minimum sentences, in areas including drug and gun offences and sex crimes, during their decade in power. The Conservatives said mandatory minimums and other sentencing laws would toughen punishments by reducing judges' discretion and giving Parliament a greater say. The Supreme Court of Canada struck down the three-year minimum on illegal gun possession last year, and in April struck down the one-year minimum term for drug traffickers with a previous trafficking conviction, while saying that other mandatory minimum terms are similarly vulnerable.

Conservative justice critic Rob Nicholson, a former justice minister, said in an interview the mandatory minimums are "consistent with the seriousness of the crime," adding: "Parliament sets the penalties. Parliament has done this since the very beginning." He said that, in the victim surcharge and other laws, the Conservatives were "standing up for victims and making people accountable for their crimes."

Federal prisons had 12,671 inmates in 2006, and 14,865 as of April 1 of this year. In a speech to the Criminal Lawyers Association in Toronto last week, Ms. Wilson-Raybould said the justice system needs to work harder at keeping young people out of its clutches.

Anthony Moustacalis, president of the Criminal Lawyers Association, said in an interview that the Justice Minister's proposed changes on mandatory minimums, coupled with her view of the social roots of crime, "swing the balance away from the Conservative view that crime is a moral problem to a more modern and realistic view that crime relates to poverty and mental illness and marginalization."