Thank you, Mr. Chair, and good afternoon to the honourable members of this committee.
My name is Michael Spratt. I'm a criminal defence lawyer. I practise at the law firm of Webber Schroeder Goldstein Abergel here in Ottawa. I practise exclusively in the area of criminal law. To my left is Mr. Russomanno, who practises at the same law firm, also exclusively in criminal law. We're both members of the Criminal Lawyers' Association. I'm on the board of that organization and Mr. Russomanno is a member.
The Criminal Lawyer's Association was founded in 1971 and is made up of over a thousand criminal lawyers. We're routinely consulted by governments and committees such as this committee on proposed legislation that affects criminal law. The CLA supports legislation that's fair, constitutional, and supported by evidence. The CLA supports protecting vulnerable members of our society—in this case, children.
The CLA remains opposed to the use of the mandatory minimum sentences. They are not fair, and they do not accomplish the objectives that this bill seeks to accomplish. Bill C-54 is another example of the government's love of mandatory minimum sentences. This love persists despite evidence that minimum sentences just don't work. They don't accomplish the objectives that we sometimes believe they might. This bill's short title is “Protecting Children from Sexual Predators”, so I take it that the aim of this bill is to protect children. Unfortunately, the bill as constructed, largely because of the use of mandatory minimum sentences, will fall short of this goal.
There are many problems with mandatory minimum sentences. The first is that minimum sentences remove judicial discretion. This is a departure from one of the historic underpinnings of our justice system—the discretion of a trial judge to impose a just and appropriate sentence. Trial judges are in the best place to craft appropriate sentences. They hear the facts and the circumstances of the offence. They hear details about the offender—his personal circumstances, treatment that the offender sought, and in many cases reports from medical professionals about the risk of reoffence. They also hear from victims through victim impact statements. With this information, they're in the best position to craft a sentence that's fair to the offender and proportional to the offence, to craft a decision that reflects the principles of sentencing.
Mandatory minimum sentences limit this judicial discretion. In fact, they do something even more insidious in transferring that discretion to the police and to the prosecutors—the police who decide what charges to lay, and the prosecutors who decide how to proceed with a charge. Is it a summary offence or is it an offence that will proceed by way of indictment? The crown has discretion to take pleas to lesser included offences that sometimes don't carry mandatory minimum sentences.
The removal of judicial discretion hides the decision-making process. Judges have to deliver reasons, and substantial reasons, for their decisions. Judges are reviewable by appellate courts. The police and the prosecutors are not. Their discretion is not reviewable and is not made public. In short, the removal of discretion will undermine confidence in the judiciary.
Mandatory minimum sentences accomplish two negative things at the same time. They act as an inducement for someone who may not be guilty to plead guilty to avoid a mandatory minimum sentence if the prosecutor offers to bury the charges the person is facing. At the same time, they offer an inducement to take a matter to trial, to use court time to litigate a matter. That often happens. Because the penalty is so severe under the mandatory minimums, there is no risk, no advantage, in taking the matter to trial.
We're all aware that resources are not infinite. What I just mentioned doesn't even take into account the increase in the prison population. Mandatory minimums also disproportionately affect minorities, particularly aboriginal groups. The Supreme Court of Canada in the landmark case of Gladue has recognized that because of their unique background and historic disadvantages, the sentencing of aboriginal people is different. There are different considerations to be taken into account.
Mandatory minimum sentences have the risk of being unconstitutional in that regard, where those considerations the Supreme Court directs cannot be taken into account because there is a mandatory minimum sentence that dictates the result--sometimes an inappropriate result.
Lastly, mandatory minimums do little to advance the principles of sentencing. Mr. Russomanno--if I haven't used all his time by the time I'm done speaking--is going to talk to you about how mandatory minimum sentences don't offer any positive benefits with respect to deterrence, how they don't deter people from committing crimes.
Apart from that, as you've heard already, mandatory minimum sentences can interfere with rehabilitation, which is a paramount principle of our sentencing principles. They essentially abandon rehabilitation or devalue rehabilitation, and put an offender sometimes in a worse position. Mandatory minimums, as Mr. Russomanno will tell you, don't deter.
What mandatory minimum sentences are good at is denouncing conduct, and retribution. Unfortunately, those two principles do not lead to safety. They do not lower the risk of reoffence or offence in the first place, and they often result in the use and overuse of scarce resources and the potential result of unfit sentences.
I'll turn the floor over for whatever time is remaining to Mr. Russomanno.