Mr. Justice David Doherty, Ontario Court of Appeal. Source: www.ottawamenscentre.com/judges/Justice_David_Doherty.htm
A sextet of decisions by the Ontario Court of Appeal on Tuesday decided convincingly that some mandatory-minimum sentences – but by no means all – can have such perverse results that they would amount to cruel and unusual punishment, and so they violate the Charter of Rights and Freedoms.
Mandatory minimum sentences are not always wrong. For example, many people who are not exceptionally cruel or vindictive do not think that the mandatory minimum of 25 years in jail, without parole, for first-degree murder is outrageous. If a prosecutor has managed to prove all the elements of such a serious crime, a long prison sentence is justified.
All of the six cases before the Ontario court were about guns. Although the court struck down some of the mandatory minimums – such as an automatic three-year jail term for possession of a gun – they did not change any of the actual sentences.
Mandatory minimums are nothing new in the Criminal Code. However, since 1982, Canadian courts have had to think about what the Charter means by "cruel or unusual treatment or punishment." And the proliferation of mandatory minimums under the Harper government has raised the stakes. The question judges have to answer is whether a legislated minimum could result in a "grossly disproportionate" sentence.
The appeal court's approach to this is, to say the least, counterintuitive. The specifics of the six cases just disappear from sight. The question is no longer about the people accused and convicted in these cases. Instead, Justice David Doherty and his colleagues tried to think about an imaginary character. Could such a person be unfairly caught by that mandatory minimum, and be put in jail for three long years, without having done anything all that serious? Let's say he was found with a unloaded gun; he had a gun licence, though he wasn't quite living up to its terms; and he wasn't doing anything dangerous. Three years would be far too much – and that, to the court, makes this mandatory minimum "cruel and unusual."
In the end, none of the defendants in these six cases were as almost-innocent as that. And none of them had their sentences reduced. All in all, these were the right decisions.