Imposing mandatory minimum prison terms on criminal offenders is adding approximately $80-million per year to the price of justice, says an Ontario judge privy to correctional statistics and projections.
"We have been told that federal correctional officials estimate they will increase the sentenced population by 1,000 prisoners per year," the judge said in an interview.
It costs about $80,000 a year to keep a penitentiary inmate, so the additional burden of those on mandatory minimum sentences multiplies out to $80-million.
Even this figure, however, underestimates the amount. It does not include the cost of holding people accused of crimes that bring mandatory minimum sentences in provincial remand centres for longer than they might otherwise serve before their trials.
"These [costs]inevitably go up substantially, because there is very little percentage for a prisoner facing a significant minimum mandatory penalty to plead guilty," the judge said, speaking on condition of anonymity. "What judges are always concerned with is that, when the occasional exception comes along, we cannot do the right thing. There are cases where a mandatory minimum is simply too harsh."
His sentiments appear to be shared by an overwhelming number of lawyers, judges and legal academics. They call mandatory minimum sentences ineffective, contradictory of bedrock sentencing principles, and downright cruel in specific cases.
The Criminal Code currently contains about 45 mandatory minimum sentences, and politicians regularly call for more.
"They just keep adding to them," said Alan Borovoy, president of the Canadian Civil Liberties Association.
"It becomes their favourite panacea," Mr. Borovoy said. "I've stopped counting them."
Critics claim that the Achilles heel of minimum sentences is the infinite number of factors that vary from one offender and crime to another.
Mr. Borovoy cited the case of an Ontario Provincial Police officer, Constable Stanley Levant, who shot a fleeing suspect in 1994 during a split-second, high-stress confrontation.
On account of his spotless record and the desperate situation he was in, Constable Levant received just six months in jail.
Sentenced today, he would have automatically received four years.
Mr. Borovoy said that he made the Levant case a central part of a presentation in 2006 to a parliamentary committee that was examining proposed new mandatory minimum sentences for gun crimes.
"I looked those guys in the eye, and said: 'If there is anybody here who thinks this officer should have gotten four years, please identify yourself,'" Mr. Borovoy said. "Nobody identified. I kept coming back to it, because I knew it put them in a ridiculous position."
Nonetheless, politicians are tantalized by a get-tough measure that seems to be such an easy fix, said Tony Doob, a professor at the University of Toronto's Centre of Criminology.
"From a legislator's perspective, it's a dream," he said. "You don't have to change any institutions. You don't have to hire anybody or change procedures or anything else. You just say: 'We're going to change the sentence.'
"But our maximum sentences are already high. Take robbery. The maximum is life imprisonment already. So, all that's left in terms of lazy legislation is mandatory minimums."
Critics cite several other factors that either push up the price tag or defeat the point of mandatory minimum sentences:
- Many accused people plead guilty to lesser charges, whether or not they are guilty, rather than risking the harsh mandatory minimum sentence.
- Defendants who cannot extract a favourable plea bargain insist on having a full trial, using every technical argument available to forestall a conviction. Trials stretch out longer, and courts become overcrowded.
- Marginal offenders are treated unduly harshly. They "suffer the rigours of a penitentiary sentence, out of proportion to their blameworthiness and without producing the desired deterrent benefit," said Queen's University law professor Allan Manson.
"Focusing on such an ineffective and costly sentencing strategy has had the disastrous side effect of distracting legislators and policy-makers from the actual causes of crime and modern, crime-reduction techniques," Prof. Manson said.
Prof. Doob said that studies have repeatedly shown that mandatory minimum sentences have no deterrent effect on prospective criminals and crime rates.
Very few criminals have any idea what sentencing ranges pertain to particular offences, he said, let alone being deterred by the prospect of drawing a certain sentence.
"As though anybody contemplating a gun-related crime would not be deterred by a four-year possibility - but would be deterred by a five-year possibility," Mr. Borovoy remarked.
The federal government has taken to focusing its defence of mandatory minimum sentences on the merits of avenging victims and keeping offenders on ice.
As for those who once looked to the Supreme Court of Canada to combat mandatory minimum sentencing, there has been nothing but disappointment.
Indeed, the court has stressed Parliament's right to use them to express society's abhorrence for certain crimes.