OTTAWA — An Ontario senator tired of waiting for the Liberals to bring in their promised changes to mandatory minimum penalties while they watch how they fare in the courts, is now prepared to go it alone.
Independent Sen. Kim Pate said she plans to introduce legislation that would allow judges to decide whether they should impose mandatory minimum penalties on offenders at sentencing time.
"They are in the best position to determine: is this an appropriate place for the application of the mandatory minimum penalty?" said Pate, who was a longtime advocate for the rights of prisoners before she was named to the Senate in November 2016.
Prime Minister Justin Trudeau tasked Justice Minister Jody Wilson-Raybould with reviewing the controversial sentencing reforms the previous Conservative government brought in as part of their tough-on-crime agenda.
Many of those changes involved imposing or increasing mandatory minimum penalties for dozens of offences — a measure critics say prevents judges from being able to use their discretion when necessary. The Supreme Court has already struck down two of them.
The Liberal government seemed close to overhauling mandatory minimum penalties last spring, after justice ministers from across the country gathered to tackle court backlogs — a problem in urgent need of a solution after the high court imposed strict limits on the amount of time it can take for a case to make its way through the system.
Ottawa later pushed its own timeline back to last fall and then, late last month, introduced its massive Bill C-75, which is aimed at improving the criminal justice system, but is silent on mandatory minimums.
That appeared to be the final straw for Pate, who said she plans to introduce her private member's bill within the next month, barring any signs the Liberal government will change its course.
"What we want to be able to do is advance sentencing reforms that will stand the test of time," Wilson-Raybould said March 29 as she explained the absence, but also noted she would be watching what is happening to the Conservative-era sentencing provisions in courts around the country.
There is quite a bit of activity to monitor.
The Justice Department, which has been tracking Charter challenges to the Criminal Code and the Controlled Drugs and Substances Act, said that as of Monday, 68 per cent of 256 court challenges are related to mandatory minimum penalties. Eighty-nine of those relate to child sexual offences, 44 are for drug offences and 30 have to do with firearms.
In an interview with AdvocateDaily.com, Toronto criminal lawyer Matthew Friedberg says Pate is correct in saying that judges are best-positioned to fashion appropriate sentences for those convicted of crimes.
“Judges are the ones hearing the evidence and they should have the ability to sentence the offender in the manner they deem appropriate, given the facts of the case and the individual circumstances of the offender,” he says.
“Historically they had the ability to do that until the previous Conservative government took it away.”
Friedberg, a partner with Caramanna Friedberg LLP, says legislation that would restore judges’ discretion to sentence offenders would be a positive step forward, noting it’s disappointing that Bill C-75 is silent on the issue of mandatory minimum sentences.
He hopes Pate’s bill, when it’s introduced, will provide an impetus for the federal government to have another look at the issue.
“Mandatory minimums sometimes disproportionately punish people — offenders in outlier cases often do more jail time than merited,” Friedberg says.
“There are many constitutional challenges involving mandatory minimums because judges can’t exercise their discretion properly and you get offenders serving sentences they don’t deserve, which is antithetical to our justice system.”
Carissima Mathen, a University of Ottawa law professor, said the commitment to repeal or reform at least some mandatory minimum penalties could be putting Wilson-Raybould, in her role as attorney general of Canada, in an uncomfortable position as federal lawyers defend what she plans to change.
"I find for them to vigorously defend mandatory minimums would be odd given what they've said about their concern that mandatory minimums inappropriately interfere with judicial discretion," said Mathen. "I'm very intrigued to know what they are going to do."
The answer? It depends.
A memo prepared for Wilson-Raybould last June suggests her promises would play a role in federal litigation strategy.
"Your criminal law mandate letter commitments and actions taken in respect of those commitments influence (attorney general of Canada) involvement in litigation," said the briefing note, which The Canadian Press obtained in response to an access-to-information request.
Earlier last year, Wilson-Raybould spelled out six principles she believed should follow when it comes to these kinds of cases, which include upholding the Charter but also the laws passed by the Parliament until they are changed — or the courts declare them to be unconstitutional.
David Taylor, her director of communications, said Wilson-Raybould has been letting the relevant prosecutorial authorities handle Charter challenges in the various courts of appeal, while deciding whether or not to intervene in Supreme Court cases "on a case-by-case basis."
The federal government will intervene in a Supreme Court case involving a judge who refused to apply the mandatory minimum penalty for an Ontario man convicted of using a computer to lure a child — who was really a police officer — but has not yet filed its arguments.
Jonathan Rudin, program director at Aboriginal Legal Services of Toronto, said he does not think the wait-and-see approach is working, or fair to those who are currently facing charges associated with mandatory minimum sentences the courts could strike down or the Liberals revise.
"Not doing anything doesn't seem to help at all," he said. "This isn't justice. It's roulette."