Mr. Speaker, I welcome the opportunity to speak to the bill before the House.
I will begin with a quote that sums up the government's approach quite nicely:
If one says “mandatory life imprisonment” quickly and often, without thinking about it too deeply, it sounds tough and that is what politicians like to do. It is easier and cheaper than taking time and committing resources to the development of policies that can address the causes of crime and reduce its incidence. The “tough” approach appeals to people who are driven by retribution; and they vote.
It is important to define what a mandatory sentence is. Ruth McColl provided a good definition of “mandatory sentencing” when she said:
“Mandatory sentences” are those sentences which a judicial officer is required to impose no matter what the circumstances of the offence. In other words, the judicial officer has no discretion to impose a higher or lower sentence depending upon the nature of the crime.
At their roots these types of bills emanating from the Conservatives suggest a lack of trust in our judicial system. The purpose of punishment for an offence is complex. The duty of the justice system is to protect the community from persons committing offences and to impose such sentences that are proportionate to the offence. In applying punishment, the justice system seeks to deter others by sending a message that such offences have consequences. The justice system must, by definition, be a just one.
That was not always the case. There was a time when punishment for offences was completely disproportionate to the offence, often arbitrary and inconsistent. It was that sense of injustice and the absence of proportionality that led to many reforms in England hundreds of years ago. Some of those reforms placed limits on the king's power to mete out punishment. It led to the introduction and evolution of the common law of which we in Canada are the beneficiaries.
The principle of proportionality is not a new one. It may be new to the Conservatives, but its origins are actually found in the Magna Carta of the 13th century. Clause 20 of the Magna Carta states:
A freeman shall not be amerced for a slight offense, except in accordance with the degree of the offense; and for a grave offense he shall be amerced in accordance with the gravity of the offense.
The subsequent centuries led to many more reforms and constraints on the king and the emergence of the Bill of Rights in 1689. A quick read of the Bill of Rights highlights the excesses of the monarchy in the exercise of justice, including excessive bail and fines and the imposition of punishments that were deemed to be illegal and of a cruel nature. That was the context in 1689.
Despite the emergence of the Bill of Rights, and the Magna Carta before it, mandatory penalties were applied to a long list of offences.
Let us use as an example the idea of capital punishment in old England. In the early 1800s in England there were an estimated 160 offences for which one could be sentenced to death and many people were executed.
William Blackstone, the famous English jurist, and yes, a Tory politician, wrote:
Yet, although in this instance we may glory in the wisdom of the English law, we find it more difficult to justify the frequency of capital punishment to be found therein; inflicted (perhaps inattentively) by a multitude of successive independent statutes, upon crimes very different in their natures. It is a melancholy truth, that among the variety of actions, which men are daily liable to commit, no less than a hundred and sixty have been declared by Act of Parliament to be felonies without benefit of clergy; or, in other words, to be worthy of instant death.
It was the uniform nature of sentences without regard to mitigating factors that caused Blackstone difficulty, and rightly so. Back then it was not uncommon with that lengthy list of offences for a child over the age of seven to be sentenced to death because the law said so without regard to circumstances. Today we would find that notion absurd and even horrifying.
The penalty and punishment had no regard to circumstance, age, or any other mitigating fact. It was so because it was a mandatory penalty. It did not allow a judge any leeway to assess a situation or to apply any sense of proportionality.
Another example of the use of mandatory penalties in England was the crime of arson. Again, despite the Bill of Rights with its roots in the Magna Carta, and despite the slow move toward proportionality in sentencing, England in the mid-18th century really had an issue with arson and applied a standard that would rightly be viewed as cruel and unusual in modern society, at least on this side of the House.
With few exceptions, arson was an offence met upon conviction with the sentence of death, regardless of age. Imagine, setting a grass fire or burning an outhouse led to a sentence of death, without regard to the circumstances.
Eventually, as the rights of individuals and a more enlightened and educated society emerged, jurists were given the power to assess cases and apply law in light of mitigating factors. That is the way it must be.
Should the punishment for an individual stealing $10,000 from a bank be different from that of a young child stealing a set of golf balls from Walmart? Yes, of course. In order to say yes to that question, one must instinctively see the injustice that would arise if the sentencing were the same. It is for that and many other reasons mandatory sentencing is problematic.
Here in modern Canada, the Supreme Court of Canada has already determined that in some instances a mandatory sentence of seven years for certain drug offences is unconstitutional and deemed cruel and unusual punishment under the charter. The court said:
A punishment will be cruel and unusual and violate s. 12 of the Charter if it has any one or more of the following characteristics:
(1) The punishment is of such character or duration as to outrage the public conscience or be degrading to human dignity;
(2) The punishment goes beyond what is necessary for the achievement of a valid social aim, having regard to the legitimate purposes of punishment and the adequacy of possible alternatives; or
(3) The punishment is arbitrarily imposed in the sense that it is not applied on a rational basis in accordance with ascertained or ascertainable standards.
I realize that perhaps my presentation today is tilted toward the history and evolution of criminal law, but history did not begin this morning. We are inheritors of the common law from our forefathers. It is important to note historical experience and to learn from it.
I have no doubt that members opposite believe that their approach to law is one that makes them feel happy inside. It is a “hang 'em high” approach for sure. The Conservatives would have loved the 18th century version of justice in England.
Mandatory minimums are a failed policy, and stacking our Criminal Code full of them does nothing to reduce crime or improve public safety. Mandatory minimums do not advance the goal they purport to reach, that of crime prevention and of deterrence. We have examples from the world over, but we do not need to look beyond our borders for proof.
Our own Department of Justice published a study in December 1990. Members will note that was under a Progressive Conservative government. The study was called “A Framework for Sentencing, Corrections and Conditional Release, Directions for Reform”. Page nine reads:
The evidence shows that long periods served in prison increase the chance that the offender will offend again. In the end, public security is diminished rather than increased if we 'throw away the key'.
The United States Sentencing Commission said earlier this month that mandatory minimum sentences are often “excessively severe”, not “narrowly tailored to apply only to those offenders who warrant such punishment” and “not applied consistently”.
The truth is that mandatory minimum sentences also have a disproportionate impact on those minority groups that already suffer from poverty, deprivation and disadvantage. That is certainly well known within our aboriginal community.
Mandatory minimums do not alleviate or address this problem; rather, they exacerbate it. To the Conservatives, the only thing they are tough on is evidence, facts and reality. We are seeing first-hand the wholesale importation of the American view of justice. It is irrational.
If my words seem particularly pointed this morning, it is because I worry about this country. I worry about the right-wingers across the aisle who are destroying the fabric of the justice system and replacing it with an American-style system that has been proven not to work. The member opposite and his party do not much care for statistics and evidence; what matters is how they feel. That cannot be the basis for making law.