Mandatory minimums and the crime bill

November 23, 2011

in Canada, Economics, Law, Politics, Rants, Security

Depressingly, it looks like this new crime legislation will become law in Canada – bringing with it the certainty of substantial new prison costs and little in the way of likely benefits.

One aspect that seems especially objectionable is mandatory minimum sentences. I think it makes a lot of sense for a judge who knows the law and the circumstances of a case to decide what punishment is fitting. Binding the hands of a judge by forbidding sentences of less than a set amount seems like a policy can that only produce injustice. Surely, there are cases where a literal interpretation of the law would apply to someone, but where it would be unjust to punish the guilty party severely. Letting judges keep their discretion is an appropriate reflection of the complexity of the world. I also question whether the supposed problem of excessively lenient sentencing – the basis for establishing minimums – actually exists.

I also think it is counterproductive and unjust to tighten the laws on illegal drugs. Most of the harm done by drugs arises precisely because they are illegal. It would be far better to legalize, regulate, and provide treatment. That is especially true of exceptionally benign drugs like marijuana – which is probably less damaging to the people who use it than most prescription antidepressants. Besides, it is up to properly informed individuals to decide what they want to put into their bodies – not a moralizing state that has bought into the morally bankrupt and ineffective ‘War on Drugs’ mentality.

Finally, I strongly object to the lack of personal security for inmates in prison. Even criminals deserve to have their human rights protected by the state.

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{ 25 comments… read them below or add one }

. November 23, 2011 at 6:45 pm

VANCOUVER — Four former Vancouver mayors have endorsed a coalition calling for an end to pot prohibition in Canada that they blame for rampant gang violence.

Larry Campbell, Mike Harcourt, Sam Sullivan and Philip Owen all signed an open letter to politicians in B.C. Wednesday claiming a change in the law will reduce gang violence.

The former mayors support the position of the Stop the Violence BC coalition, which recently released a survey showing most B.C. residents favour an end to the current marijuana laws.

dp November 23, 2011 at 7:11 pm

This bill might be a good candidate for rejection by the Senate.

The Senate is meant to provide a ‘sober second thought’, and this bill seems especially problematic.

Note that drug metaphor right in the motto of the Canadian Senate. It implies that the government can get drunk and make poorly considered choices.

oleh November 25, 2011 at 1:47 am

Some of the reasons why the mandatory minimums does not makes sense:
1. it is very expensive to imprison people $110,000 in federal penitentiaries
2. prisons do not generally rehabilitate, imprisonment leads to more crime
3. the onset of violent crime is actually decreasing
4. we have good experienced judges
5. more imprisonment (including 3 strike laws) in the US has not worked

. November 27, 2011 at 9:08 pm

Conservative crime bill heads to Commons for final showdown

Postmedia News
Sunday, Nov. 27, 2011

By Tobi Cohen

OTTAWA — After failing to get a single amendment to the controversial omnibus crime bill approved during committee, the opposition is poised to try again this week when the bill returns to the House of Commons.

While the Conservatives may well invoke closure and limit debate as they have multiple times before, New Democrats, Liberals and Green Party leader Elizabeth May, have nonetheless given notice on 73 new amendments and debate is scheduled to take place Tuesday and Wednesday in the report stage of deliberation on the bill.

The Conservatives are determined to push the Safe Streets and Communities Act through the Commons before Christmas and the bill is expected to become law within the first 100 sitting days of the 41st Parliament — March 16, 2012, according to the Commons calendar.

“At the report stage, we can’t create new law but we can eliminate aspects of the law we find distasteful,” NDP justice critic Jack Harris said, noting the amendments largely deal with the “principles” behind the bill.

“Our proposals at the report stage are generally to delete the negative aspects of the act.”

. December 5, 2011 at 9:42 pm

Tories’ omnibus crime bill passes in the House of Commons

Postmedia News Dec 5, 2011 – 8:49 PM ET

By Tobi Cohen

OTTAWA — The opposition has called it misguided, at least two provinces have vowed not to pay for it and the Canadian Bar Association has done its darndest to get the Conservatives to listen to reason.

Still, the controversial omnibus crime bill cleared the Commons Monday evening, just 45 sitting days after it was first tabled.

The Safe Streets and Communities Act — a hodgepodge of nine justice bills, most of which were defeated in previous Parliaments when the Conservatives were in minority status — easily passed thanks to the government’s new majority in a vote of 157 to 127.

oleh December 7, 2011 at 2:34 am

This omnibus bill is an example of a majority in the House of Commons can force through legislation that could not be passed during a Conservative minority government.

I am bothered by the label “Safe Streets and Communities Act” . We all want safe streets and communities. It suggests that our streets or communities are not safe. We are probably in one of the safest countries in the world. We do not need such wholesale changes.

. December 7, 2011 at 6:33 pm

Whatever one’s views of the senate and its reform, that institution has often played an important role in bringing a reflective, evidence-based perspective to bear on proposed laws. Because the members do not face reelection, they are in a good position to avoid the worst excesses of junk politics where pandering trumps the long-term interests of Canadians.

We know that there is a remarkable consensus among the experts here in Canada and more broadly that aspects of the proposed legislation will make things worse and will certainly divert money better spent on prevention, education, rehabilitation where possible, restoration and help to victims, and the safe reintegration of offenders into the community.

Of course, we can all do the math. A Conservative majority in the Senate tells us that the bill will pass, yet again, with the same anticlimax we saw earlier this week. But the Senate does have a job to do and there is definitely work to be done. Let’s hear the evidence, the experts, the risks, the costs.

Milan December 9, 2011 at 7:53 pm

It seems absurd to commit to sending so many more people to prison, at a time when crime is low and we are cutting government spending overall.

There are much better ways we could spend the money, like on education or assistance to the impoverished.

. December 22, 2011 at 8:41 pm

Increased enforcement not curtailing marijuana use, report finds

Increased funding for anti-cannabis law enforcement does not meaningfully reduce the drug’s potency, price or availability and creates a lucrative opportunity for organized crime, according to a report by a group of marijuana policy reform advocates.

The report, entitled How not to protect community health and safety: What the government’s own data say about the effects of cannabis production was released on Thursday, and argues that marijuana should be regulated, taxed and sold in a restricted capacity. It was authored by Stop the Violence, a coalition of law enforcement and public health officials, politicians and academics that includes former Vancouver mayors Larry Campbell, Philip Owen and Sam Sullivan and Dr. Julio Montaner, director of the B.C. Centre for Excellence in HIV/AIDS, among others.

. February 15, 2012 at 11:23 am

In challenge to Ottawa, judge refuses to impose mandatory sentence

An Ontario Superior Court judge has refused to impose a mandatory three-year sentence on a man caught with a loaded handgun, putting the courts on a collision course with the federal government’s belief in fixed sentences that provide judges with little discretion.

In a decision Monday, Madam Justice Anne Molloy added fuel to a rising sense of judicial anger over mandatory minimum sentences by striking down the compulsory term as cruel and unusual punishment.

Instead, she sentenced the defendant, Leroy Smickle, to a year of house arrest. Judge Molloy concluded that Mr. Smickle, a 30-year-old Toronto man with no criminal record, had merely been showing off by striking a “cool” pose over the Internet when police happened to burst into an apartment on March 9, 2009, in search of another man.

The government has adamantly held to the view that mandatory minimums are a necessary restraint on judges who might impose inappropriately lenient sentences for certain offences. That is part of a larger tough-on-crime agenda that includes everything from harsher prison sentences to restricting parole and pardons.

Several months ago, in another major challenge in Ontario Superior Court, a similar sentencing provision was upheld in a firearms case, Regina v. Nur. That, combined with the Smickle ruling, could well result in a high-profile appeal that goes all the way to the Supreme Court of Canada.

Critics argue that a one-size-fits-all sentencing policy inevitably leads to unfair results. In her ruling Monday, Judge Molloy added her voice to those criticisms by saying there are an endless number of scenarios where a fixed sentence would be so cruel as to violate the Charter of Rights.

She said the federal goal of deterring crime is understandable and effective – up to a point. The problem is that individuals can be unfairly crushed along the way, she said. The judge cited Mr. Smickle as just such a case – a peaceable man with solid career prospects whose life would likely have been ruined by the imposition of a three-year penitentiary sentence.

“In my opinion, a reasonable person knowing the circumstances of this case and the principles underlying both the Charter and the general sentencing provision of the Criminal Code, would consider a three-year sentence to be fundamentally unfair, outrageous, abhorrent and intolerable,” Judge Molloy said.

. February 15, 2012 at 11:25 am

Although the Toronto judgment will have important ramifications, the case it sprang from is strikingly droll.

It took three smashes of a battering ram for a Toronto police tactical squad to burst into an apartment at 2 a.m. in 2009.

Smickle happened to be spending the night at the apartment when officers came looking for his cousin. Smickle thought it was thunder.

When officers burst in, he was on the couch in boxer shorts, tank top and sunglasses, a pistol in his left hand and a laptop computer in his right, apparently taking pictures of himself looking “cool,” court heard.

The gun wasn’t his and police found other guns in the tenant’s bedroom, court heard. Smickle had no criminal record, held a job, has a young child and a fiancée and was working to finish high school.

He was charged with possession of a loaded firearm.

Justice Molloy sentenced him to serve five months under house arrest in addition to the equivalent of seven months spent in pre-trial custody.

Jeff Hershberg, one of his two lawyers, was elated.

“The effect of this well-reasoned and thorough judgment is to put back in the hands of the judges the discretion during a sentencing hearing to provide a just and fit sentence,” he said after court.

Tristan February 18, 2012 at 11:39 am

Imprisoning a significantly greater portion of people will help curb unemployment. If you only look at the economy through the metrics traditionally offered, there will always be “hacks” to improve the numbers while significantly worsening the actual commonwealth.

Milan February 18, 2012 at 12:32 pm

In the medium term, incarcerating more people probably increases unemployment. It is harder to get a job after, and there are probably negative externalities for families and communities.

Tristan February 20, 2012 at 3:09 am

In the US at least, the unemployed who have stopped looking for work for at least 4 weeks are no longer counted as unemployed. So, making it impossible to find a job is another way of reducing unemployment.

Milan February 20, 2012 at 10:29 am

When making public policy, it probably makes sense to use a more meaningful measure of unemployment than that.

Tristan February 20, 2012 at 1:53 pm

Like those secret prisons, real numbers are hidden for a reason – they are super depressing!

“Many people would like to work but have not
searched for a job in the past four weeks, or are working part-time but would prefer full-time work. If those
people were counted among the unemployed, the
unemployment rate in January 2012 would have been
about 15 percent.”

http://www.cbo.gov/ftpdocs/127xx/doc12757/02-16-Unemployment.pdf

Milan February 20, 2012 at 2:16 pm

I wasn’t saying that people don’t measure unemployment in that way. I was saying that reducing ‘unemployment’ by converting unemployed people into discouraged people no longer trying to enter the labour force is not a worthy public policy goal.

Tristan February 21, 2012 at 8:57 pm

I’m not convinced politiciens have policy goals any longer. They certainly have public relations goals, however.

Milan February 22, 2012 at 8:54 am

If politicians had no policy goals, there would be little to worry about.

Unfortunately, they do have goals and energy with which to pursue them, and many of those goals seem contrary to the objective of improving human welfare.

. February 22, 2012 at 8:56 am

Don’t adopt U.S.-style drug laws, group warns Canada
February 22, 2012 00:02:00
Tonda MacCharles Ottawa Bureau

OTTAWA—Citing overcrowded jails and a failed zero-tolerance drug policy in the U.S., a group of mostly retired American police officers, judges, and criminal law policy advisers is urging the Conservative government not to make the same mistake.

More than two dozen members of a group known as LEAP— Law Enforcement Against Prohibition — released on Wednesday an open letter to Prime Minister Stephen Harper and senators now examining the government’s omnibus crime legislation, Bill C-10.

The bill amends several pieces of legislation and, among other things, creates new mandatory minimum prison sentences for a series of drug crimes, such as six months for possession of as few as six marijuana plants. It has already passed the Commons and is certain to pass a senate review, where the Conservatives also hold a majority.

oleh February 26, 2012 at 11:09 am

Too often we compare ourselves to the United States. Actually in the area of crime we have a substantial difference. We do not have the right to bear arms enshrined in our Constitution.

I think one of the problems is that in Canada we are heavily exposed to American concerns. Politics in America has often involved the war on crime. Campaign ads feature fighting crime. We see those ads and think we may have the same problems. Conservative politicians then seek the same solutions. I do not think we should. I think we should consider Europe as a better comparable, including its lower levels of incareration.

Milan February 26, 2012 at 2:14 pm

It certainly doesn’t make sense to follow an American pattern of imprisoning large additional numbers of people – worsening our financial situation while doing little or nothing to make society safer.

Milan February 26, 2012 at 2:21 pm

Not to mention while probably abusing the rights of the people who we do imprison.

Prisons must be safe and rehabilitative – not simply vehicles for vindictiveness and vengeance.

. March 12, 2012 at 2:19 pm

Tories’ crime bill gets another chance to pass tonight

http://www.cbc.ca/news/politics/story/2012/03/12/pol-crime-bill-monday.html

The Conservatives’ controversial crime bill will be put to final vote Monday night in the House of Commons, a few days later than the government expected.

It had planned to pass Bill C-10 last Wednesday, but the NDP was able to delay the last day of debate until Friday and push the final vote to today.

Justice Minister Rob Nicholson and other Tory MPs had even held a news conference on Wednesday to mark what was supposed to be the last time MPs dealt with the bill.

It had been sent back to the Commons by the Senate because of amendments made to the part of the bill that gives Canadians the ability to sue perpetrators and supporters of terrorism.

After taking up more than three hours of debate by reiterating his party’s opposition to the omnibus crime bill, NDP MP Jack Harris proposed a motion to reject the Senate amendments. MPs will first vote on that motion this evening, then on whether to accept the revised bill. The Conservatives will be able to defeat the motion and pass the bill because of their majority.

. March 13, 2012 at 7:50 am

Harper’s promise fulfilled as House passes crime bill

After prematurely celebrating passage of their omnibus crime bill last week, the federal Conservatives have finally managed to push the controversial piece of legislation through Parliament.

The final vote in the House of Commons on Monday means Prime Minister Stephen Harper has fulfilled his commitment to get the legislation passed within the first 100 days of this session.

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