Debating justice reform: maybe it’ll have to happen in court

Response to the government’s omnibus crime bill has been fascinating to watch. Thoughtful observers, like Dan Gardner over at the Ottawa Citizen, despair over the government’s refusal for some years now to offer anything like a reasoned argument for its approach, especially on limiting the discretion of judges by imposing more mandatory minimum penalties and no longer allowing  “house arrest” sentences in many cases.

Justice Minister Rob Nicholson doesn’t seem to feel any need to explain himself. (His office and department offered only bare statistics, for example, when I asked for some explanation about why he wants to stop judges from handing down conditional sentences for some crimes.) Given the Conservative majority, I suppose he’s right: the government has the numbers in the House to pass the sprawling law without bothering to seriously answer its critics.

However, quite a few lawyers have mention that constitutional challenges to some aspects of the law are likely. And in court, refusing to engage won’t be an option. With this in mind, it might be worth taking another look at what Chief Justice Beverley McLachlin had to say about this when I asked her about it during a feature interview for Maclean’s late last fall:

Maclean’s: Does it change that balance when new laws tell judges how to rule? We’re thinking of the spate of new federal crime statutes that dictate mandatory minimum penalties.
McLachlin: These are matters that may come before us, mandatory minimums and some of the recent laws, so obviously I’m not going to pronounce in advance. But as a general observation, the more precise the law is—provided it’s within the bounds of the Constitution—the less discretion there is for judges. Beyond that, I’m not sure how much I can say.

Q: But it’s sometimes suggested that the courts have been coddling criminals. Do you think there’s any justification to that criticism?
A: I don’t think so, overall. You have to realize that judges under the Criminal Code have to take into account not only retribution. In fact, they have to look at rehabilitation. They’re directed to. They have to look at a number of factors in sentencing. And sometimes the perspective from the person who’s making the speech about how judges are too soft is simply one of, this conduct deserved more retribution. It’s easy to understand that someone who’s looking at the penal process only through the lens of retribution may come up with a view that’s different than a judge, who is required by the Criminal Code to look at three other factors that may sometimes cut the other way.

Q: So light sentences shouldn’t be a concern?
A: I’m confident, by and large, that the judges of Canada are applying the sentencing provisions of the Criminal Code in a responsible manner. The courts of appeal throughout this country hear many sentence appeals where the Crown and the accused argue about what’s the appropriate sentence. This is a process that’s carried on within the parameters of what the Criminal Code requires, and I’m confident it’s working properly.

Given that assertion from the highest level that the courts aren’t actually soft on crime, you’d think that by now the Conservatives would have assembled evidence to the contrary. But so far, nothing. It’s not like they haven’t been prodded. When I pressed Nicholson’s office to justify imposing more mandatory minimums penalties for a story a couple of years ago, his staff produced a short memo with his bland observation: “In our opinion, the studies are inconclusive particularly with respect to the main debate: do MMPs deter crime?”

Yet MMPs remain a key thrust—arguably the key thrust—of the reforms. Why? Perhaps we won’t hear an attempt at a coherent argument until the matter ends up, as McLachlin seems to expect, at the Supreme Court. Until then, you can always amuse yourself by reading the old studies archived on the Justice Canada website that pre-date the Conservatives’ coming to power in 2006. For example, there’s this 2005 report entitled Mandatory Sentences of Imprisonment in Common Law Jurisdictions: Some Representative Models, which includes what turned out to be a heck of an inaccurate prediction, at least with respect to Canada:

It would be overstating the case to say that the pendulum has swung away from mandatory sentencing to a model of sentencing that privileges judicial discretion. However, it is clear that public and legislative interest in mandatory sentencing laws has declined, and is likely to continue to decline in the near future. Although the public supports tough sentencing measures for violent offenders, the experience with mandatory sentencing legislation in a number of countries has shown that these laws do little to promote public confidence in the sentencing process.