Mandatory-minimum sentencing rules unravelling into patchwork

Canada's web of mandatory-minimum jail terms is coming apart, leaving an uneven set of penalties for offenders, as judges in several provinces declare many such sentences grossly excessive and abhorrent.

In dozens of cases, most of them in the past three years, judges have declined to apply the minimum sentences required in a variety of gun and drug crimes and sexual offences against children, The Globe and Mail has found in a review of the Canadian Legal Information Institute (CanLII) national database of court rulings.

Instead, they are setting aside these obligatory sentences for specified crimes, describing them as a form of "cruel and unusual punishment" prohibited by the Constitution. That has left the judges free in some instances to use house arrest as an alternative to jail.

Globe editorial: You don't need a poll to know mandatory minimum sentences are bad

Only higher-level courts, such as superior courts of provinces and the Supreme Court of Canada, may strike a law down.

Such courts have done so on more than 25 occasions involving more than a dozen different minimum sentences.

The result is a patchwork of sentencing rules across the country. Although sentencing patterns normally vary somewhat in different regions, the Criminal Code is supposed to set out the basic ground rules uniformly across Canada. That is no longer true for sentencing in many drug, gun or sex crimes. Some mandatory minimums no longer exist in some jurisdictions, having been ruled unconstitutional, but are still being applied in others.

Taken together, the actions at multiple levels of court, and in several provinces and territories, amount to a judicial rejection of a key component of the former Conservative government's tough-on-crime agenda.

They also pose a political challenge for the Liberal government. It promised nearly 18 months ago to eliminate some mandatory minimums, or change the way they work so judges have more discretion. Now, more than halfway through its term in office, the government has taken no legislative action, and opponents of the minimums fear it won't because it sees no political gain in taking the issue on.

Instead, while the government mulls the issue over in a series of 14 "justice round tables" with judges, lawyers and academics, the judiciary has been dismantling the minimums; usually (although not always) federal or provincial prosecutors fight to uphold them.

The judges say mandatory minimums are "grossly disproportionate" in a wide variety of cases, such as those involving Indigenous people, the mentally ill, the cognitively impaired, the suicidal, the previously law-abiding and even "a reasonable hypothetical" – an imaginary offender.

Rob Nicholson, the Conservative Party's justice critic, said he is disappointed by the judges' actions. "We always stood up for victims," he said in an interview. "We wanted people to be responsible for the crimes they committed. We wanted to maintain public confidence in the judicial system."

The Globe reviewed constitutional rulings on mandatory minimums after an Ontario judge struck down a two-year minimum jail term last month for trafficking large amounts of hard drugs such as cocaine, citing the jail term's impact on Indigenous offenders.

In British Columbia, the province's highest court, the Court of Appeal, has ruled mandatory minimums unconstitutional in five cases in the past two years. Its rulings have to be followed by all judges in the province. But there is no uniformity across the country. The B.C. Court of Appeal has upheld the four-year mandatory minimum for firing a gun recklessly in a public place, while superior-court judges in Northwest Territories have struck down a related minimum, and Quebec provincial court judges have ruled the reckless-firing minimum invalid. (Provincial-court judges can't strike down a law, but they can set it aside and use their discretion to set an appropriate sentence.)

"When you think we have a Criminal Code of Canada, it's absolutely shocking," Richard Fowler, a Vancouver criminal-defence lawyer, said in an interview. "You think of something as central to criminal justice as sentencing, it's pretty extraordinary that it's been allowed to develop in this way."

In some cases, prosecutors have tried to fight for a mandatory minimum in one court after losing in another court at the same level. One Ontario judge said that is the wrong approach.

"If it was possible for another Superior Court judge to uphold the constitutionality of a law after it has been struck down … by another Superior Court judge, then there would be the potential for inconsistent findings on the same law," Superior Court Justice Robert Smith wrote last March in R v. Sarmales. (The case involved a one-year minimum for sexual interference – sexual touching between an adult and a child under 16.)

Of late, some of the shorter mandatory-minimum sentences – those requiring just a few months in jail – have been struck down.

"These cases, this new breed of mandatory minimums, they're like a year, six months," Eric Purtzki, a criminal-defence lawyer who practises in Vancouver, said in an interview.

"That's what jumps out at me as a surprising trend. It shows how robust the constitutional protection is."

The steady unravelling of mandatory-minimum cases has come mostly after the Supreme Court of Canada struck down the three-year minimums for illegal gun possession, in R v. Nur (2015), and then the one-year minimum for a second drug trafficking offence in R v. Lloyd (2016).

A harsh or excessive punishment is not enough to show a violation of Section 12 of the Charter – the protection against government-imposed cruel and unusual punishment. The Supreme Court established what it described as a "high bar:" a sentence that is "grossly disproportionate," and "so excessive as to outrage standards of decency."

Making it more difficult for prosecutors to defend mandatory minimums, however, judges have the authority to decide a jail term is grossly disproportionate for a "reasonable hypothetical" offender, even if the term is fair to the actual offender in front of them.

Ontario Superior Court Justice Bruce Glass used a hypothetical offender when he struck down the six-month minimum two years ago for paying to obtain sexual services from someone under 18, in a case called R v. Badali. He said an 18-year-old might pay for a kiss and be ensnared by the sentence.

The threading of sentencing law with mandatory minimums is a relatively new feature in Canada, echoing a trend in the United States. In 1982, the Criminal Code had just six mandatory minimums; by 2006 there were 40, and as of 2016, there were nearly 80, plus another 26 in the Controlled Drugs and Substances Act, according to Justice Del Atwood of the Nova Scotia Provincial Court. He made the comment in his ruling in R v. Deyoung, a 2016 case in which he ruled the mandatory minimum of one year for the sexual assault of a person under 16 to be invalid. (The Conservatives came to power in 2006 and established or increased mandatory minimums in 60 offences.)

In that case, the provincial prosecution did not present an argument in support of the law's constitutionality, prompting Justice Atwood to wonder if governments are simply giving up on them.

"If those mandatory minimums are circling the drain, from an executive-branch-law-reform perspective, it would be good to know it," he wrote.

Prime Minister Justin Trudeau's mandate letter to Justice Minister Jody Wilson-Raybould instructed her to ensure that "our work demonstrates the greatest possible commitment to respecting the Charter of Rights and Freedoms." He told her to review sentencing revisions from the previous decade, with an eye to reducing the rate of incarceration among Indigenous people.

As far back as October, 2016, the Justice Minister told the Criminal Lawyers' Association in a speech that she would change the minimum sentencing laws "in the near future." Days later, she told The Globe that new legislation would be coming soon, "certainly in the early part of next year."

In an e-mail to The Globe this past September, Ms. Wilson-Raybould took a strong position against mandatory minimums, saying they add to court delays (fewer people plead guilty because there is less chance of a reduced sentence in return), are not necessary to keep Canadians safe, rarely have a deterrent effect (except for impaired drivers) and harm minorities.

"There is absolutely no doubt that [mandatory-minimum penalties] have a disproportionate effect on Indigenous people, as well as other vulnerable populations."

She added that she supports judicial discretion in sentencing. "Judges are well-equipped to assess the offender before them and ensure that the punishment fits the crime."

In an e-mail she sent to The Globe on Friday for this story, she said, "The courts have made it clear that MMPs present serious challenges from a constitutional perspective." But she declined to say whether her government will take legislative action.

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Recent cases resulting in a sentence different than the mandatory minimum

The case: R v Cardinal, Feb. 14, 2018, Northwest Territories Supreme Court, Justice Louise Charbonneau

The mandatory minimum: Five years for the intentional discharge of a prohibited firearm in a public place, or while being reckless about the safety of another person.

Summary: Suicidal and intoxicated, Corey Cardinal, 33, broke into his stepfather's gun closet, took out a shotgun, put it to his chin. As he was pulling the trigger, his friend pushed the gun away, causing it to fire through a door. In frustration, Mr. Cardinal fired a second shot through the door and later, out in the street, a third shot into the snow. He conceded that five years would not be grossly disproportionate for him, but would be for a "reasonable hypothetical" offender: a young aboriginal person, suffering the effects of "intergenerational trauma," who shoots through a door in circumstances similar to Mr. Cardinal's, and has no previous criminal record. (Mr. Cardinal had a criminal record.)

Judge's comment: "This hypothetical, tragically, is very realistic. … It is beyond dispute that consideration of the circumstances of aboriginal offenders is mandated even when dealing with serious offences." The same law has been struck down twice in Quebec in cases involving suicidal people.

The sentence: Not set yet.

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The case: R v S, Jan. 23, 2018. British Columbia Supreme Court, Justice Gary Weatherill

The mandatory minimum: One year in prison for sexual interference (sexual activity between an adult and a person under 16).

Summary: A 22-year-old man had sexual relations with two 15-year-old girls. Justice Weatherill said they suffered emotional harm. One needed therapy and stopped going to school. But the man had an IQ of 59, no criminal record and through counselling understood that what he had done was wrong. Justice Weatherill ruled the law a violation of the Charter's Section 12 guarantee against cruel and unusual punishment.

Judge's comment: Sending him to jail for a year "would be asking me to close my eyes to the effect that [his] cognitive deficits had on the commission of these offences. … In my view, a reasonably informed member of the public, aware of all the circumstances of this case, would agree that sending [him] to prison for one year would be 'so excessive as to outrage standards of decency.' Even more so as the public is becoming more informed about the impact that mental-health issues and cognitive challenges can play in the criminal justice system."

The sentence: Yet to be set.

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The case: R v Swaby, Nov. 8, 2017, B.C. Supreme Court, Justice Leonard Marchand

The mandatory minimum: 90 days for possession of child pornography (since the time of Matthew Swaby's offence, the minimum has been increased to six months)

Summary: Police discovered two hard drives containing 480 video files of child pornography, with some of the victims toddlers. Mr. Swaby was then 23. He suffered from an intellectual impairment, depression and social isolation. He said he knew what he had done was wrong but said he watched out of boredom and for shock value.

Judge's comment: A clear majority of Canadians, if informed of the circumstances, would find jailing Mr. Swaby for 90 days "abhorrent and intolerable."

The sentence: Upheld a sentence from a lower-court judge of four months living under conditions in the community (half under house arrest, half under curfew), followed by two years of probation. Mr. Swaby will be on a sex-offender registry for 10 years and must provide a DNA sample.

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The case: R v Dickey, Apr. 25, 2016, B.C. Court of Appeal, Justice P.D. Lowry, Justice Nicole Garson and Justice Lauri Ann Fenlon. Three cases were heard together.

The mandatory minimum: Two years in prison for drug trafficking (two of the cases involved trafficking near people under 18, and one involved using a child in trafficking).

Summary: All three cases involved a Dial-a-Dope operation: telephone ordering of drugs for delivery. The three convicted men were first-time drug offenders. Chad Dickey was 27, and a cocaine addict. But in the two years while he waited to be sentenced, he had beaten the addiction and become a mill worker. Erin Bradley-Luscombe was 20, and had left an abusive family as a teenager. He had used a 17-year-old as a driver. Marco Trasolini was 37, had a steady job and a family, but sold cocaine to support his cocaine addiction. After being charged, he had stopped taking drugs. Lower-court judges in each case had ruled the mandatory minimum unconstitutional.

Judge's comment: "Given that more than two years had elapsed since [Chad] Dickey committed the offences which, in the circumstances, were of no consequence to any young person, and during that time he had overcome his addiction and turned his life around," Justice Lowry wrote in the unanimous ruling, "it would not appear any purpose was to be served in imposing a prison sentence on him."

The sentence: Mr. Dickey received a suspended sentence and 20 months probation; Mr. Bradley-Luscombe and Mr. Trasolini received eight-month jail terms.

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The case: R v Harriott, June 2, 2017, Ontario Superior Court Justice Antonio Skarica

The mandatory minimum: Three years for weapons trafficking

Summary: Under the control of a violent drug trafficker, who had threatened O'Neil Harriott's family in Jamaica, Mr. Harriott offered to sell a gun to an undercover officer, though he had no access to a gun to sell, Justice Skarica said.

Judge's comment: Because a fit sentence in his case would be 3-6 months, the three years was grossly disproportionate.

The sentence: Six months in jail.

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The case: R v Hood, Dec. 14, 2016, Nova Scotia Provincial Court Justice Del Atwood

The mandatory minimum: One year for sexual luring of children

Summary: An exemplary female teacher was convicted of sexting with a former student under 18, and engaging in a single sexual act with a former student under 16, and using telecommunications devices to lure the two youths in order to commit a sexual offence. At the time, Amy Hood was suffering from a serious mood disorder, despite never having had mental illness until then.

Judge's comment: "Her mania rendered her profoundly disinhibited and prone to risk taking, elevated by a sense of invincibility, and impaired by defective insight and inhibition; Ms. Hood regarded herself as a peer of her victims, and looked to them for approval and acceptance."

The sentence: A community-based conditional sentence (the conditions are redacted from the decision). And she is not to go near a public park or other places in which children are found for 10 years.

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The case: R v Friesen, Nov. 13, 2016, Alberta Court of Queen's Bench, Justice Vital Ouellette

The mandatory minimum: Three years for selling firearms without a licence

Summary: Store owner John Friesen had a licence to sell ammunition, not firearms. A family asked him not to sell a gun to their father, a childhood friend of Mr. Friesen's, fearing he might harm himself. Mr. Friesen sold the father a .22 calibre rifle, but did not ask whether the father had the appropriate licence for the gun. The father shot and killed himself with the gun.

Judge's comment: Mr. Friesen had no criminal record and broad community support, including from the family of the man who killed himself. His crime, said Justice Ouellette, was in "failing to obtain the appropriate business licence," and being reckless as to whether the father had the appropriate licence to possess a firearm. The judge said the law was aimed at gangs and drug traffickers, and was grossly disproportionate for Mr. Friesen.

The sentence: Six months of house arrest, and a $5,000 fine.

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