The federal Liberals – who three years ago repealed 20 minimums – used their crime bill to resuscitate more than a dozen minimums invalidated by the courts.Sean Kilpatrick/The Canadian Press
The federal government’s proposal to revive mandatory minimum punishments that courts had ruled unconstitutional will likely insulate the changes from future challenges, legal experts say.
But widespread criticism remains over the use of such required minimum punishments for people convicted of specific offences, with those against the changes citing negative impacts on Indigenous people and other marginalized communities, as well as research that shows harsher sentences often do not deter crime.
On Tuesday, the federal Liberals tabled their second bill of the fall to toughen the Criminal Code. Numerous measures were proposed, and among them was the question of mandatory minimum sentences, a preferred tool of the Conservative government under Stephen Harper.
Mr. Harper’s minimums fared poorly in the courts. The Supreme Court of Canada, from 2015 onwards, struck down a number of minimum punishments because they were judged to breach the Charter of Rights and Freedoms’ protection against cruel and unusual punishment.
The court made these decisions by employing a controversial method called reasonably foreseeable scenarios. These were used to determine whether the minimums in question would be grossly disproportionate, and thus amount to cruel and unusual punishment in some situations.
The most recent such ruling was in October, when the Supreme Court in a 5-4 decision – with Chief Justice Richard Wagner in dissent – struck down a minimum of one year in jail for possessing or accessing child pornography, a Harper-era measure.
The federal Liberals – who three years ago repealed 20 minimums – used Tuesday’s crime bill to resuscitate more than a dozen minimums invalidated by the courts. This would include the one year for accessing or possessing child porn.
Supreme Court under fire for ruling against mandatory-minimum sentences in child-porn case
The proposed changes to the Criminal Code aim to protect a total of about 60 minimums with what’s dubbed a safety value in judicial sentencing.
This follows the direction of the Supreme Court. In a 2016 judgment, when a minimum for drug trafficking was struck down, the court spoke of “a safety valve that would allow judges to exempt outliers for whom the mandatory minimum will constitute cruel and unusual punishment.”
In a federal government explanation of its plan on Tuesday, Ottawa said: “The proposed legislation respects that guidance.”
In the proposed bill, the safety valve is represented by a new clause in the Criminal Code that would allow judges to impose a shorter jail term than the minimum, if the minimum “would amount to cruel and unusual punishment for that offender.”
“The reform is sensible and long overdue,” said Kent Roach, a law professor at the University of Toronto. But he added caution: With a safety valve established, should the bill become law, it could encourage governments to use more mandatory sentences.
Prof. Roach further observed that Prime Minister Mark Carney’s Liberals are “much tougher on crime” than the government of the previous decade, under former prime minister Justin Trudeau.
Michael Plaxton, a law professor at the University of Saskatchewan, said the proposed safety valve “would effectively immunize the vast majority of mandatory minimums.”
There is a small amount of uncertainty. Because a brief jail term would be required in the new bill, if a judge chose to go below a minimum, there could be a question of whether even a short period of incarceration is overly harsh for a particular offender.
More broadly, however, the planned changes likely mean the courts’ use of reasonably foreseeable scenarios would fade from the prominence they gained over the past decade.
The federal Conservatives didn’t respond to Tuesday’s bill until Thursday. In a press release headlined “mandatory isn’t optional,” the Conservatives said that any safety valve at all means “empowering judges to ignore” minimums.
Numerous other experts were critical of the move by the federal government, even if it does adhere to the Charter.
Debra Parkes, a law professor at the University of British Columbia, said the Liberals’ response to minimums being ruled unconstitutional was deeply disappointing and inadequate, calling it the “stingiest possible interpretation” of previous court decisions.
“This is not a meaningful safety valve,” said Prof. Parkes.
She cited government research that shows how minimums “contribute to the hyper-incarceration” of Indigenous and Black people.
A true safety valve, said Prof. Parkes, would provide more judicial leeway. She pointed to a Canadian Bar Association resolution in 2021 about how to better address minimums. It proposed a safety valve that gave judges a wider ambit of perceived injustice that could result from the imposition of a minimum.
Senator Kim Pate, appointed in 2016 by Mr. Trudeau, said the proposed changes would still mean judges in some cases will be required to “hand out sentences that are unjust,” even if they fall short of the level considered cruel and unusual punishment.