Nathalie Des Rosiers and Abby Deshman | Vancouver Sun | 20 October 2011
There are many reasons why people object to minimum sentences: they do nothing for victims, they do not deter offenders, they cost too much money and they displace power from judges, who give their reasons in open court, to Crown prosecutors, who make their decisions behind closed doors.
While we agree with all these assertions, today we want to take a slightly different tack, and make the case as to why mandatory minimum sentences are just plain wrong, on moral and philosophical grounds.
Minimum sentences disembody the crime: They make the offender, his or her context, personality, upbringing, intellect, morality or addiction, irrelevant. It matters not that the person was coerced by family members into participating in a grow-op operation, it matters not that she did not understand the implications or her actions, that he was addicted, that she was desperate to provide food for her children, that he has since changed his life around. Minimum sentences impose punishment in a vacuum, mechanically, as though offences and crimes were committed by automatons. Minimum sentences also sideline victims, placing the focus squarely on the act, rather than the circumstances of the individuals — both victim and offender — that are involved.
But life is not like that, and indeed, most of our human experience teaches us that punishment is always about the crime, the offender and the victim. No parent would dream of ignoring the circumstances of an offence while imposing punishment on a child, because we know instinctively that it is unfair to ignore the context and the reasons why wrong choices were made. Indeed, the evolution of sentencing principles reflect this basic notion: we reject as barbarous the notion that all thieves should have their hands cut off, recognizing instead a more complex set of principles that look at individual and general deterrence and potential for rehabilitation as guiding principles. In 1988, the Parliamentary Committee on Sentencing (which was led by Conservative MP David Daubney) stipulated that the purpose of sentencing is to hold the offender “accountable” for his or her criminal conduct. Accountability cannot be fixed in the abstract. It must be grounded in a real person’s recognition of fault and obligation to repair.
This concept of individual accountability, however, has almost disappeared in the Conservative government’s omnibus crime bill — the price of criminal conduct is fixed in advance, irrespective of the degree of responsibility or moral blameworthiness of the accused. This represents an impoverished vision of society’s desire to deal with crime. Real people are involved in circumstances that should be disclosed so that we understand why and how crime occurs.
It is this sensitivity to context that has allowed us, in the past, to give a schizophrenic man who had committed drug crimes at the onset of his mental illness continued access to the successful in-community treatment he had since been receiving. In such cases, sentencing arrangements that are currently available, for example lengthy and restrictive conditional sentences that both punish wrongdoing and allow the individual to continue receiving treatment, would no longer be an option. Every case is different, and not all facts are so sympathetic. It is only by looking at each specific incident, however, that we can truly come to grips with an individual’s conduct and maintain the possibility of taking into account such human complexity.
The omnibus bill seeks to change this, imposing a long list of mandatory minimum sentences. In a nod to context, it adds aggravating (but no mitigating) factors to the imposition of minimum sentence. Selling drugs near places where youths generally gather, for example, would result in mandatory, added time in jail. It is as though the government recognizes that circumstances do matter and is trying to imagine all the circumstances that a judge would have considered in imposing an individual sentence. The assumptions implied by the aggravating factors, however, are distorted. For example, it is an aggravating factor to use other people’s property for a drug offence, singling out all renters for harsher treatment than property owners. Those who live in cities — where parks, schools, malls and corner stores frequented by youth are always only a few steps away — would be treated differently than those who commit offences in rural areas.
The impulse to take into account the circumstances is correct, but the process of setting mandatory minimums with a set list of “aggravating factors” is faulty. No legislator can predict the range of human conduct or determine in advance what would be the appropriate sentence to respond to a particular crime committed in a particular way by a particular offender. The whole enterprise of stripping the justice system of its capacity to individualize sentencing is fundamentally flawed: it undermines our sense of fairness and morality, taking us back to the alluring but barbarous simplicity of “an eye for an eye.” It is just plain wrong.
• Nathalie Des Rosiers is general counsel for the Canadian Civil Liberties Association, where Abby Deshman is director of the Public Safety Program. This is the first of an occasional series of columns addressing Bill C-10, the Safe Streets and Communities Act.