Tuesday, February 7, 2023
No Result
View All Result
  • Media
Support Us
Macdonald-Laurier Institute
  • Home
  • About
    • Who We Are
    • Who Makes MLI Work
    • Tenth Anniversary
    • Jobs
  • Experts
    • Experts Directory
    • In Memoriam
  • Issues
    • Domestic Policy Program
      • Agriculture and Agri-Food
      • Canada’s Political Tradition
      • Economic policy
      • Energy
      • Health Care
      • Innovation
      • Justice
      • Social issues
      • Telecoms
    • Foreign Policy Program
      • Foreign Affairs
      • National Defence
      • National Security
    • Indigenous Affairs Program
  • Projects
    • COVID and after: A mandate for recovery
    • COVID Misery Index
      • Beyond Lockdown
    • Provincial COVID Misery Index
    • Centre for Advancing Canada’s Interests Abroad
      • Dragon at the Door
      • The Eavesdropping Dragon: Huawei
    • An Intellectual Property Strategy for Canada
    • Speak for Ourselves
    • Canada and the Indo-Pacific Initiative
    • DisInfoWatch.org
    • The Transatlantic Program
    • Indigenous Prosperity at a Crossroads
      • Aboriginal Canada and Natural Resources
    • Talkin’ in the Free World with Mariam Memarsadeghi
    • Past Projects
      • Justice Report Card
      • Munk Senior Fellows
      • A Mandate for Canada
      • Confederation Series
      • Fiscal Reform
      • The Canadian Century project
      • Fixing Canadian health care
      • Internal trade
      • From a mandate for change
      • Size of government in Canada
  • Events
    • Upcoming Events
    • Past Events
      • MLI Dinners
      • Great Canadian Debates
  • Latest News
  • Libraries
    • Inside Policy Magazine
      • Inside Policy Back Issues
      • Inside Policy Blog
    • Papers
    • Columns
    • Books
    • Commentary
    • Straight Talk
    • Video
    • Multimedia
    • Podcasts
    • Leading Economic Indicator
    • Labour Market Report
    • MLI in the Media
  • Home
  • About
    • Who We Are
    • Who Makes MLI Work
    • Tenth Anniversary
    • Jobs
  • Experts
    • Experts Directory
    • In Memoriam
  • Issues
    • Domestic Policy Program
      • Agriculture and Agri-Food
      • Canada’s Political Tradition
      • Economic policy
      • Energy
      • Health Care
      • Innovation
      • Justice
      • Social issues
      • Telecoms
    • Foreign Policy Program
      • Foreign Affairs
      • National Defence
      • National Security
    • Indigenous Affairs Program
  • Projects
    • COVID and after: A mandate for recovery
    • COVID Misery Index
      • Beyond Lockdown
    • Provincial COVID Misery Index
    • Centre for Advancing Canada’s Interests Abroad
      • Dragon at the Door
      • The Eavesdropping Dragon: Huawei
    • An Intellectual Property Strategy for Canada
    • Speak for Ourselves
    • Canada and the Indo-Pacific Initiative
    • DisInfoWatch.org
    • The Transatlantic Program
    • Indigenous Prosperity at a Crossroads
      • Aboriginal Canada and Natural Resources
    • Talkin’ in the Free World with Mariam Memarsadeghi
    • Past Projects
      • Justice Report Card
      • Munk Senior Fellows
      • A Mandate for Canada
      • Confederation Series
      • Fiscal Reform
      • The Canadian Century project
      • Fixing Canadian health care
      • Internal trade
      • From a mandate for change
      • Size of government in Canada
  • Events
    • Upcoming Events
    • Past Events
      • MLI Dinners
      • Great Canadian Debates
  • Latest News
  • Libraries
    • Inside Policy Magazine
      • Inside Policy Back Issues
      • Inside Policy Blog
    • Papers
    • Columns
    • Books
    • Commentary
    • Straight Talk
    • Video
    • Multimedia
    • Podcasts
    • Leading Economic Indicator
    • Labour Market Report
    • MLI in the Media
No Result
View All Result
Macdonald-Laurier Institute

Judges overreach in skirting mandatory minimums: Caylor and Beaulne in the Citizen

August 21, 2014
in Columns, Domestic Policy Program, In the Media, Justice, Latest News
Reading Time: 3 mins read
A A

Writing in the Ottawa Citizen, Macdonald-Laurier Institute authors Lincoln Caylor and Gannon G. Beaulne say that judges have gone too far in their attempts to sidestep mandatory minimums.

Citing the recent example of R. v. Michael, where an Ontario court justice refused to order $900 in surcharges, the authors argue that judges who duck imposing mandatory minimum sentences risk distorting the principle of gross disproportionality.

Caylor and Beaulne are the authors of an MLI paper, titled “Parliamentary Restrictions on Judicial Discretion in Sentencing: A defence of mandatory minimum sentences”, that argues mandatory minimums help enforce the rule of law.

By Lincoln Caylor and Gannon G. Beaulne, Aug. 21, 2014

The Harper government has lost some very public court battles lately, highlighting current tensions between Parliament and the judiciary over mandatory minimum sentencing tools.

The government’s most recent defeat came in R. v. Michael. In this case, a prominent Ontario Court judge in Ottawa, Justice David Paciocco, convicted a homeless, alcohol and drug addicted 26-year-old named Shaun Michael of nine offences, including assault against a peace officer. Michael faced $900 in mandatory victim surcharges in addition to four months already spent in custody and two years of probation.

Justice Paciocco refused to order the mandatory victim surcharges. He found that a $900 fine would be cruel and unusual punishment when combined with prison and probation, contrary to Section 12 of the Charter. And so the Court struck down the Criminal Code section creating the mandatory victim surcharge regime as unconstitutional.

This decision comes on the heels of a Supreme Court of Canada case thwarting Parliament’s efforts to restrict extra credit for time served by prisoners before conviction. The Harper government has also come under fire in the media for increasing the number of mandatory prison sentences in the statute books.

The common thread tying together these challenged policies is Parliament’s attempt to constrain the discretion of sentencing judges. For most offenders, the sentence is the only significant decision that the criminal justice system will make. So who should have the last word in sentencing — Parliament or the judiciary?

Historically, Canadian courts have been chiefly responsible for ensuring that the sentence fits the seriousness of the crime. But in the 1990s, the Chrétien government spearheaded one of the largest enactments of mandatory minimums in Canadian history. Then, beginning in 2008, the Harper government toughened mandatory penalties already on the books and imposed escalating minimums for some repeat offenders. It also made the victim surcharge mandatory.

Some judges have become increasingly inventive, bold and arbitrary in identifying rationalizations to avoid applying mandatory penalties, including the victim fine surcharge prior to R. v. Michael. This troubling judicial response raises important questions about the rule of law and the roles of Parliament and the courts in sentencing.

All judicial discretion has limits. Parliament has every right to impose what it believes to be a just sentencing range.

Canadian courts can — and indeed must — ensure that our laws stay within the strict boundaries of the Constitution. Courts are therefore empowered to strike down mandatory penalties, provided that they are not merely disproportionate but grossly so. Judges are not elected legislators, and so the bar must be set high.

Michael is clearly results-oriented. Justice Paciocco was satisfied that a sentence of four months in prison and two years on probation — including the significant attendant stresses — was proportionate to Michael’s crimes. And yet Justice Paciocco found that the stresses associated with owing a $900 debt to the Crown rendered the sentence grossly disproportionate.

This is a dangerously fine line between proportionate and grossly disproportionate. One might fairly ask: if a $900 debt that the Crown can do little to collect is grossly disproportionate to nine convictions for offences that include assault against a peace officer, could any mandatory penalty ever survive Charter scrutiny?

Michael invites judges to import subjective considerations and personal views of justice into the gross disproportionality test. If exercised inappropriately, this test could quickly become a means through which the judiciary can usurp Parliament’s power to enact valid criminal sentencing laws.

Judges should carefully scrutinize mandatory penalties. But they should measure them against the established meaning of gross disproportionality and the written and unwritten principles of the Canadian Constitution — not their own personal views of justice. Judges must decline the invitation in Michael to blur the boundaries of gross disproportionality to the point that the test becomes deprived of any objective content.

Lincoln Caylor and Gannon G. Beaulne are lawyers at Bennett Jones LLP in Toronto. They are the authors of the Macdonald-Laurier Institute publication Parliamentary restrictions on judicial discretion in sentencing: A defence of mandatory minimum sentences.

Tags: Lincoln CaylorOttawa Citizen
Previous Post

Media availability: Crowley says government’s internal trade strategy an important first step

Next Post

“There should be no barriers”: Crowley talks interprovincial trade with News Talk 770

Related Posts

It’s time to leverage Canada’s energy advantage into a geopolitical one, too: Shuvaloy Majumdar in Maclean’s
Columns

For the oil patch, ‘just transition’ is buzzword legislation, not sound economics: Heather Exner-Pirot in the Globe

February 7, 2023
Prioritizing gender identity over sex in prisons endangers female prisoners
Releases

Prioritizing gender identity over sex in prisons endangers female prisoners

February 6, 2023
Greedflation? It’s a government thing: Philip Cross in the Financial Post
Columns

Jagmeet Singh uses confusion about private care to support the status quo: Shawn Whatley in the National Post

February 6, 2023
Next Post
Nazareth talks temporary foreign workers on 1310 News

“There should be no barriers”: Crowley talks interprovincial trade with News Talk 770

Macdonald-Laurier Institute

323 Chapel Street, Suite #300
Ottawa, Ontario
K1N 7Z2 Canada

613.482.8327

info@macdonaldlaurier.ca
MLI directory

Follow us on

Newsletter Signup

First Name
Last Name
Email Address

Support Us

Support the Macdonald-Laurier Institute to help ensure that Canada is one of the best governed countries in the world. Click below to learn more or become a sponsor.

Support Us

Inside Policy Magazine

  • Current Issue
  • Back Issues
  • Advertising
  • Inside Policy Blog
  • Privacy Policy

© 2021 Macdonald-Laurier Institute. All Rights reserved.

No Result
View All Result
  • Home
  • About
    • Who We Are
    • Who Makes MLI Work
    • Tenth Anniversary
    • Jobs
  • Experts
    • Experts Directory
    • In Memoriam
  • Issues
    • Domestic Policy Program
      • Agriculture and Agri-Food
      • Canada’s Political Tradition
      • Economic policy
      • Energy
      • Health Care
      • Innovation
      • Justice
      • Social issues
      • Telecoms
    • Foreign Policy Program
      • Foreign Affairs
      • National Defence
      • National Security
    • Indigenous Affairs Program
  • Projects
    • COVID and after: A mandate for recovery
    • COVID Misery Index
      • Beyond Lockdown
    • Provincial COVID Misery Index
    • Centre for Advancing Canada’s Interests Abroad
      • Dragon at the Door
      • The Eavesdropping Dragon: Huawei
    • An Intellectual Property Strategy for Canada
    • Speak for Ourselves
    • Canada and the Indo-Pacific Initiative
    • DisInfoWatch.org
    • The Transatlantic Program
    • Indigenous Prosperity at a Crossroads
      • Aboriginal Canada and Natural Resources
    • Talkin’ in the Free World with Mariam Memarsadeghi
    • Past Projects
      • Justice Report Card
      • Munk Senior Fellows
      • A Mandate for Canada
      • Confederation Series
      • Fiscal Reform
      • The Canadian Century project
      • Fixing Canadian health care
      • Internal trade
      • From a mandate for change
      • Size of government in Canada
  • Events
    • Upcoming Events
    • Past Events
      • MLI Dinners
      • Great Canadian Debates
  • Latest News
  • Libraries
    • Inside Policy Magazine
      • Inside Policy Back Issues
      • Inside Policy Blog
    • Papers
    • Columns
    • Books
    • Commentary
    • Straight Talk
    • Video
    • Multimedia
    • Podcasts
    • Leading Economic Indicator
    • Labour Market Report
    • MLI in the Media

© 2021 Macdonald-Laurier Institute. All Rights reserved.

IDEAS CHANGE THE WORLD!Have the latest Canadian thought leadership delivered straight to your inbox.
First Name
Last Name
Email address

No thanks, I’m not interested.