Why abolish automatic sentences

The Trudeau government wants to strike out of the Criminal Code a whole series of automatic prison sentences introduced under the Conservatives.

Posted at 5:00 a.m.

There are excellent reasons to do so. These sentences make good political marketing, but they are not effective in fighting crime. They don’t punish dangerous people more harshly. And they send people to jail longer who shouldn’t be there any longer.

But the Liberal-NDP government being what it is, it wanted to give the project an extra touch of social conscience. He explains that these amendments are being made “to follow through on the Government of Canada’s commitment to address systemic inequalities, including the overrepresentation of Indigenous, Black or marginalized Canadians in the criminal justice system.”

There is no doubt that Aboriginal people are particularly overrepresented in Canadian prisons, as are, to a lesser extent, black men. But they already were in the absence of automatic penalties. And if it is necessary to abolish them, it is because they are counter-productive, useless, costly and often unfair.

For everyone.

By explaining these changes out of a desire to fight systemic discrimination, the Trudeau government is shifting a criminological debate onto this minefield. Basically, he is doing on the left exactly what he accuses the Conservatives of doing on the right: politicizing criminal law.

This is what we saw in the House of Commons on Wednesday in a bad debate.

I have often written on this subject. Automatic sentencing is an American invention. To show that they are fighting crime, American politicians, in Washington and in the states, Republicans and Democrats, have multiplied them for 30 years each time a public safety crisis has arisen – that is, every the weather.

We remember Bill Clinton’s “three strikes and you’re out”. An individual convicted of a third violent crime (the range is wide) was automatically imprisoned for life, without the possibility of parole.

The states and the federal government have established “guidelines” to prevent American courts from varying sentences too much from one offender to another. For trafficking a substance containing cocaine from such weight to such weight, it is 10 to 15 years; a little more powder: 20 to 30 years. Etc.

This is how the prison population has exploded in the United States, where more than two million people are incarcerated – a rate per person five to six times that of Canada, France or the United Kingdom, and ten times higher than that of Germany.

The idea is simple and appealing: eliminate the unpredictability of penalties and, above all, “candy penalties”. In theory, this makes it possible to make the sentences “equal” for everyone. Such a crime equals such a prison sentence… minimum.

In the Anglo-American tradition, the law sets a maximum for each crime. It is then up to the judge to tailor the sentence for each offender, depending on the circumstances. The seriousness of the acts: a theft of $10,000 or 50 million? The degree of premeditation, the background of the accused, his chances of rehabilitation, etc. The cliché is that the sentence should fit the offender like a glove. The maximum should only be inflicted on the worst criminals who have committed the worst crime of their kind. There are several exceptions – murder, for example – but that’s the principle.

The Harper government did not imitate the extreme American examples, far from it. But he publicized the implementation of new minimum sentences.

Some have been declared unconstitutional by the courts. An example. An uneventful guy goes to a friend’s house in his absence. He finds a gun there. He takes “selfies” with it. Post this on Facebook. In less than two, the Toronto police arrive, arrest the guy, find that the weapon is loaded. The minimum sentence for possession of a loaded restricted weapon is three years in prison. This guy may have done something stupid, he is not a hardened criminal (he is a father with a job). He didn’t threaten anyone. Of course, handling a loaded firearm is dangerous, criminal. But the minimum sentence was not intended for this type of case. The courts have struck down this automatic minimum as “cruel and unusual punishment”. Not because we were going to imprison a “black Canadian” too long and unjustly. Because in itself, the provision led to an unreasonable conclusion, preventing the judge from exercising his discretion in this very particular case. This is the problem with these sentences: they impose a ready-made solution where a tailor-made solution is necessary.

Bill C-22 abolishes 14 such penalties. Several relate to minor crimes involving drugs and tobacco. Others relate to firearms. In the current context of shootings in broad daylight in several Canadian cities, this is not a very good seller. Several police chiefs have spoken out against the abolition of automatic sentencing.

But first, this abolition will not lead to reduced sentences for gang members. Minimum sentences for trafficking, importing, manufacturing illegal weapons remain, as for many other crimes involving the use of a weapon.

Secondly, in all cases where there will no longer be a minimum sentence, judges will, as usual, have full latitude to impose severe sentences when the circumstances are right…rather than being forced to do so by the law of arbitrary and inefficient manner.

These minimum sentences were introduced in 2008. If they had been effective, we would have seen it. It is rather an increase in armed violence that we have witnessed. It is police action first that must be supported to combat gun violence, not a political catalog of ready-made sentences.

Undoubtedly, discriminated groups have paid more for it. But if they are to be reformed, it should not be so much “to remedy the excessive incarceration rate of Aboriginal people, black Canadians and members of marginalized communities”.

It should be done simply for the sake of justice for all.


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