Justice Committee on May 29th, 2012

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Thank you for testifying today.

I want to talk to you about the issue of the constitutionality of the minimum mandatory sentences. They're not new to the Criminal Code, obviously. Certainly there is a mandatory minimum for first-degree murder that's been there for some time. Is it your view that that is anti-constitutional?

[Michael Spratt]

The mandatory minimum sentence for first-degree murder?

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Yes.

[Michael Spratt]

No, it's not. There are many minimum sentences that aren't unconstitutional. That's a separate question about whether it's good policy or effective policy.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Okay.

I want to direct your attention to something. Justice Major testified here some few weeks ago and we asked him about the possibility of a mandatory minimum for this offence surviving where it was quite a heinous crime, given that the children are vulnerable and they're being abducted. It was his position that it would sustain a constitutional challenge.

[Michael Spratt]

Probably in a very heinous case, where the case law already demonstrates that sentences are greater than five years...in that case it may very well survive a constitutional challenge.

Where the legislation on minimum sentences runs into problems is for cases that may have mitigating factors, because mandatory minimum sentences, of course, are a sort of one-size-fits-all solution, ignoring the reality that offenders and offences can be very different.

There is a presumption that minimum sentences, when they're passed, contemplate all cases, the best and the worst. Of course, even the wisest of men can't see all ends. So there will be cases that attract scrutiny. Everyone is quite aware of the case of Smickle, involving guns. There are cases that could attract constitutional scrutiny.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Mr. Justice Major seemed to think this one would.

Obviously, there is a garden variety of Criminal Code offences, many of which are far less serious than this one, and they don't all have mandatory minimum sentences. But I trust you'd agree that it's our position, as parliamentarians, to set a scale of what is a maximum, and in some instances a minimum, to give some guideline to what is the most heinous and less acceptable conduct in the Criminal Code, because it's all about public order.

[Michael Spratt]

That's sort of the point. It may be about public order and public perception, but quite unfortunately the evidence shows that mandatory minimum sentences don't deter; they don't prevent these crimes. If one ignores that evidence and one ignores the potential detrimental consequences of mandatory minimum sentences, and one ignores the fact that there really is no problem here because sentences to a large extent are greater than five years....

I should say that we're blessed with a great appellate system, a great review system. As well, we have a state, unlike some countries, that is well funded and is very competent and is able to review decisions that are incorrect. So if there is an improper use of judicial discretion, if there are facts that aren't taken into account, there is a review mechanism. We don't need, I submit, mandatory minimum sentences when the utility behind them simply isn't there and they run contrary to some of the fundamental principles of our justice system.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Which ones would those be, given that we seem to believe this would survive constitutional scrutiny?

[Michael Spratt]

The principle I'm speaking of is judicial discretion. For a judge who hears the facts of the case, to impose a just and reasonable sentence, given the offender's personal circumstances, given the offence type and the circumstances of the offence...a minimum sentence removes that discretion. There are many cases in which it could result in unjust results should the minimum sentence be passed.

If there were a demonstrated link to show that mandatory minimum sentences deterred conduct, made us safer, perhaps my position would be different. There simply is not. If there were evidence that judges were getting it wrong, were imposing lenient sentences and there needed to be more denunciation, perhaps my position would be different. Unfortunately, the evidence isn't there to bridge the gap between the purpose of the legislation and the way the legislation tries to implement that goal.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

I'm curious about what this evidence is, if you've brought it with you.

[Michael Spratt]

I did. It may not be the most useful use of our time to go over it.

I think the starting point is this. When the government wants to change legislation and introduce new legislation, shouldn't it be the government that justifies and demonstrates that utility is there? But if we want to reverse, as we say in the Criminal Code the burden of proof, and shift the onus onto me, we can do that. I can refer you to a number of studies that deal with minimum sentences and their lack of utility, and I'd be happy to do that.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

It would be interesting if you could table those.

[The Chair, Conservative, Dave MacKenzie]

Thank you. Your time is up.

Mr. Scott.

[Craig Scott, NDP, Toronto—Danforth, ON]

Thank you, Mr. Chair.

We'd also love to see the studies. If you could send them on later, or their references, that would be great.

[Michael Spratt]

I can forward them to the clerk of the committee, of course.

[Craig Scott, NDP, Toronto—Danforth, ON]

That would be fantastic.

Lest you be under a misimpression about Mr. Justice Major's testimony, I wanted to know whether you would agree with the following distinction he made. He did, indeed, say that he felt this would probably be constitutional, but he made a strong distinction and said as a matter of underlying policy—not just parliamentary policy, but the underlying principles of general criminal law—that he's against mandatory minimums in this case.

Is that your position as well?

[Michael Spratt]

That's my position. We only need to look south of the border to see experiences with mandatory minimum sentences in other jurisdictions, but I fully agree with Justice Major on that point.

[Craig Scott, NDP, Toronto—Danforth, ON]

Thank you.

In terms of an example, I had the privilege to talk to Chief Rodney Freeman after the session. We got into an area that none of us really get a chance to cover, so I wanted to see whether you had a view.

With respect to five years, we're looking at a pure kidnapping issue here—not all of the other stuff that we all acknowledge can often happen after a kidnapping—of somebody under 16. Do you think diminished mental capacity of the kidnapper is the kind of factor a judge, in some cases, might want to take into account in figuring out that five years is an excessive sentence?

[Michael Spratt]

Yes. I mean, these are factors that we often look at. There can be many factors that operate on an individual accused that fall short of fitness issues or criminal responsibility issues but inform the level of responsibility of that offender. Apart from the offender himself, we can deal with young people, youthful offenders—not young offenders but very youthful offenders—and one can contemplate a number of examples, perhaps, involving those people. For example, a high school prank, where a senior, as part of an initiation, were to take a junior in his car somewhere as a prank. That may technically fall under the kidnapping provision. Or a stepmother or a girlfriend who removes her boyfriend's child from a bad domestic situation has nonetheless made a specific attempt to kidnap and may be captured by this legislation. These are some of the hypotheticals that may arise that relate to both the offender and the offence.

[Craig Scott, NDP, Toronto—Danforth, ON]

Diminished mental capacity is one area we might have to know a lot more about in terms of how it can affect sentencing.

A big concern I have—and I think you've articulated it—is that a mandatory minimum sentencing policy and agenda shows a certain lack of faith in the judicial system as it is operating and in judges' capacity to exercise good-faith judgment in the circumstances of the case, and at some level it reflects a lack of trust in judges. Is that part of what you were arguing earlier?

[Michael Spratt]

Yes. There's the difference between what happens in the public perception...and there are also some interesting studies on what informs the public perception of what happens in our justice system. The public may think certain results are unwanted or undesirable, but when properly informed, the public perception often changes.

A minimum sentence is a very blunt way to communicate policy. It's a very blunt way to communicate a position on justice issues. Quite frankly, I think we don't give the public enough credit, and these sorts of policies can be communicated in much more nuanced ways that reflect the evidence and the reality.

[Craig Scott, NDP, Toronto—Danforth, ON]

You've brought up a good point. Chief Freeman in his testimony said that he trusted the system and judges' discretion, but what the public perceives as a lack of consistency is the problem, and the public needs to be reassured. That was one part of his testimony. What you said falls into that.

To me it gets things backwards. If we understand judges are engaging in a balanced and nuanced decision-making process that often requires something less than what a mandatory minimum would suggest, and if the public doesn't quite understand that there are different sentences isn't in and of itself inconsistency...to start from public perception as the basis for public policy strikes me as deeply problematic.

Would you agree that's more or less what you've been arguing too?

[Michael Spratt]

Yes. It puts the cart before the horse, or reverses it. It's certainly the CCLA's position that one should start from a principled and evidence-based policy, which the public, if educated about, would support.

[The Chair, Conservative, Dave MacKenzie]

Ms. Findlay.