This article originally appeared in the National Post.
By Peter Copeland, November 13, 2024
Over the past decade, the federal government has repealed numerous mandatory minimum sentences for criminal prosecution, and courts of all levels have overturned them — 174 since 2016. Judges have deployed hypothetical scenarios and stretched the meaning of our constitution, particularly the phrase ‘cruel and unusual punishment,’ beyond the letter and spirit of the law.
Although correlation is not causation, it’s noteworthy that a decade-long rise in crime rates coincided with the return of the Liberals to power in 2015 and the beginning of these repeals. To combat rising crime and address a recalcitrant judiciary, targeted amendments to the Criminal Code for sentencing the most serious and violent crimes are needed. These amendments should be precisely crafted to immunize them from ‘creative’ judicial interpretation.
In response to high-profile incidents involving accused persons out on bail, an alarming rise in police officer deaths, and growing public safety concerns, Canada’s premiers sent a letter to the federal government in early 2023 calling for reform. In response, the Liberals reluctantly introduced a reverse onus — shifting the burden of proof from the crown to the accused — for certain serious offenses, making it more difficult to get bail and giving the impression the issue had been adequately addressed.
Ontario’s recent push for further federal reforms to the Criminal Code and bail is a welcome step, as previous changes made only minor progress and may have intensified capacity pressures on the correctional system. Both federal and provincial governments have too often prioritized politically expedient changes over substantial policy improvements. Increasingly, political communications “wins” seem to come at the expense of genuine progress for public safety.
While the new reverse onuses have likely increased the number of people remanded to custody pre-trial, it is a half-measure that is unlikely to impact final sentencing decisions. Additionally, this surge in remanded individuals may have the unintended consequences of a “revolving door” effect in provincial jails, with frequent in-and-out movements that can introduce more contraband, destabilize facilities, limit access to programming, and reduce the chances of successful rehabilitation.
However, simply locking everyone up for longer isn’t an easy solution either. Governments, should consider the high costs of incarceration — around $428 daily federally and $367 in Ontario — versus the lower expenses of community supervision. Those who understand the utter inadequacy of rehabilitation programming in our prisons — their effectiveness is virtually unattested — and see clearly the moral imperative to care for the vulnerable and suffering, recognize that it’s better to be smart on crime, than simply tough on it.
An effective approach would focus on sentencing, not just bail, to target the most serious offenses and offenders responsible for much of the crime. Given high reoffending rates and public demand for improved safety, a combination of mandatory minimums and stronger sentences for severe crimes and high-risk offenders are justified. When carefully applied, they can ensure that the most dangerous individuals are incarcerated while avoiding undue punishment for the young and vulnerable, preventing the creation of hardened criminals, and keeping jails from becoming unnecessarily overcrowded and costly.
The courts have increasingly relied on Charter sections 7 and 12, concerning life, liberty, security, and cruel and unusual punishment, to overturn mandatory minimums. Citing “fundamental Canadian values”— a vague and non-legally justified concept — they have warped the definition of “cruel and unusual” and human dignity beyond all recognition. By invoking what is now called the “reasonable hypothetical” doctrine, judges can imagine scenarios unrelated to the case at hand to determine if a law might be considered cruel in other contexts, using this reasoning to strike down mandatory minimums.
There is no quick fix for this judicial overreach, which requires long-term solutions including strategic judicial appointments and complex legislative changes.
That said, more can be done now to promote public safety including reimplementing mandatory minimums with narrowly defined exceptions for specific cases, such as extreme intoxication, age, or minimal criminal history, and stronger penalties for a broader range of offences. For federal Criminal Code cases, this could mean setting a mandatory minimum as the default, with the burden on defendants to prove they qualify for the exception. Canada is a global outlier in not employing such a tailored approach to mandatory minimums.
Despite these precautions, an activist judiciary, increasingly unconstrained in their reasoning, ever sprouting more branches on the mutant organism that is the constitution imagined as a ‘living tree,’ might still creatively interpret tightly defined laws.
Legislatures must do everything in their power to clearly define offenses, establish standards, judgment criteria, and thresholds within legislation itself, in order to leave as little room as possible for judicial distortions and overreach.
Peter Copeland is deputy director of domestic policy at the Macdonald-Laurier Institute, and former director of policy to the solicitor general of Ontario.
