OTTAWA – The Liberal government is studying the idea of building some wiggle room into the controversial convention of mandatory minimum sentences to avoid unduly harsh penalties in cases that don't warrant them.
The examination is part of a federal review of changes to the criminal justice system and sentencing reforms ushered in by the previous Conservative government, a frequent champion of setting minimum penalties for crimes involving drugs, guns and sexual exploitation.
A report prepared for the Justice Department says "a politically viable strategy" is to craft exemptions to mandatory minimums that kick in when certain criteria are met, as seen in several other countries.
For instance, relief from a mandatory minimum could be granted in the case of a juvenile offender, an early guilty plea or when an accused provides substantial help to the state, says the report by criminologist Yvon Dandurand of the University of the Fraser Valley in British Columbia.
"The main argument in favour of creating exceptions to the application of mandatory minimum penalties remains the need to avoid unjust and arbitrary punishment," says the report, completed in March and recently disclosed under the Access to Information Act.
Justice Minister Jody Wilson-Raybould is looking at mandatory minimum penalties and other related issues "as a key priority" in support of her criminal justice review, said Whitney Morrison, a spokeswoman for the minister.
In finding mandatory minimum sentences for certain firearms offences unconstitutional, the Supreme Court of Canada said last year that minimums amount to "a blunt instrument" that can result in a disproportionate sentence.
Such laws prescribe minimum sentences of 90 days for a repeat offence of selling a large volume of contraband tobacco, six months for distributing child pornography and five years for trafficking someone under age 18.
Conservative justice critic Rob Nicholson, who served as justice minister in the Harper government, makes no apologies for mandatory minimums, saying they send a stern warning that some crimes carry stiff penalties.
"I believe that the steps that we took were reasonable in terms of protecting the public and standing up for victims and sending out a message that some of this criminal activity was completely unacceptable," Nicholson said in an interview.
Dandurand's report updates research he carried out four years ago for the Uniform Law Conference of Canada, which highlights inconsistencies in legislation across the country and makes recommendations for improvement.
It notes that mandatory sentences take many forms, but generally prescribe both the type of penalty and the minimum level of the sanction. Sometimes they apply only to repeat offenders.
In the majority of countries where mandatory minimums exist – including England, the United States, Sweden and Australia – "some exceptions to their imposition have been provided by law," Dandurand found.
In some cases, the mandatory scheme specifically spells out grounds under which a court can override the presumption of a minimum sentence and exercise judicial discretion.
However, such "safety valve" provisions are almost non-existent in Canadian sentencing law, the report says.
Several jurisdictions have shown that it is "possible and useful" to introduce exceptions to mandatory minimum penalties, based on criteria that set a high threshold for any departure from the legislated minimum, the report concludes.
The Conservatives would challenge any attempt by the Liberals to water down mandatory sentence provisions, Nicholson said.
"I'd say, why are you doing this? Did you consult with victims' groups? What's the problem? The bills that we brought in, I believe, were reasonable."
In an interview with AdvocateDaily.com, Toronto criminal lawyer Matthew Friedberg says it would be unfortunate if the government didn’t repeal the mandatory minimums and instead opt for a middle ground with exemptions to the existing law.
“It seems to me that it’s a way of trying to make everybody happy and in the end, making nobody happy,” he says. “I think it’s been established that mandatory minimums don’t work to decrease recidivism but for some reason, the conventional wisdom is that they fight crime.”
If the government opts not to repeal the mandatory minimums it will be a way of appeasing law-and-order types, while at the same time, “getting rid of some of the draconian Conservative legislation.”
Friedberg was surprised to read the Liberals were considering this “middle-ground” position given Prime Minister Justin Trudeau’s comments on mandatory minimums while he was campaigning.
In 2015, Trudeau told Tom Clark, host of Global TV’s The West Block, that he has “concerns in the overuse and quite frankly abuse of mandatory minimums.
“It’s the kind of political ploy that makes everyone feel good," he said. "We’re going to be tough on these people,’ but by removing judicial discretion, and by emphasizing mandatory minimums, you’re actually clogging up our jails for longer periods of time and not necessarily making our communities any safer.”
Friedberg says the problem with making exemptions to the existing law is that it would be impossible to come up with exceptions that would cover every possible set of facts that could result in an offender receiving less than minimum legislated sentence.
"Even with the exemptions, the mandatory minimums will still be unworkable," he says. "Sentencing is an inherently individual process – you will always find situations that are outliers. There will still be challenges to the legislation. The point is not to handcuff judges but to allow them to hand down sentences that fit the individual and the set of facts. It's important to simply let judges do their job."