In our view, essentially, the new clause on minimum sentences amounts to a complete reversal of everything the Supreme Court has said from the outset. It is almost the adoption of a derogation provision under section 33 of the Canadian Charter of Rights and Freedoms.
So, if the clause is adopted as it stands, it is certain that the first legal challenge will go before the Supreme Court. Can Parliament rewrite section 12 of the charter? Essentially, that is the question.
I think Parliament could have responded differently, simply by redefining aggravating circumstances and setting clearer criteria for determining in which cases the minimum sentence could be imposed, rather than starting from scratch and having a short clause stating that, from now on, we simply look at whether, in the specific case of the individual, the punishment is cruel and unusual.
It’s a bit like class action lawsuits. That allowed the Supreme Court to issue a binding ruling for everyone. Now, issues will have to be dealt with on a case-by-case basis. We talk about relieving the burden on the judicial system. However, we won’t relieve the burden on the judicial system if every case has to be argued. That really seems counterproductive.
We are very firmly opposed to this clause as it stands.
Furthermore, the minimum sentence will have to be a minimum term of imprisonment. That means that, in all these cases, there will no longer be suspended sentences or the possibility of an acquittal. So, I feel that this does rather undermine section 12 of the charter.