Last December, the Justin Trudeau’s Liberal government introduced Bill C-5, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act. It removes mandatory minimum sentences on some firearms, drug trafficking and sale of illicit tobacco offences.
The government is hyping the legislation, saying “Rooting out systematic racism is key to a fair and effective justice system”. One clue that the rhetoric is a little overwrought is that it took the Liberals six years to introduce this legislation. If eliminating these mandatory minimum sentences were really the key to rooting out systematic racism in the justice system, perhaps a little more urgency would have been warranted.
In reality, the mandatory minimum sentences now (maybe) being abolished affected some individuals but had little overall impact on sentencing in Canada. The reason? The Harper government set the mandatory minimums at the low end of the sentencing ranges already being imposed by the courts. The actual effect of mandatory minimums depends on the level they are set. A mandatory minimum of a week is different than a decade. As three wise criminologists once observed, “there is a vast difference between a haircut and a beheading, even though the two exercises can share a common categorical descriptor”.
In any event, if passed, Bill C-5 will get rid of a few mandatory minimums. The Liberals are not touching the mandatory minimums the Harper government imposed for:
A range of sexual offences against children (these were initially imposed in 2005 when Paul Martin was Prime Minister and increased during the Harper years);
Committing mischief (vandalism) on a war memorial;
Injuring or killing a police dog or other service animal;
Committing fraud for over $1 million.
There’s been a whole lot of hypocrisy and virtue signalling by both Liberals and Conservatives on this issue. Let’s look at three cases that show the good, the bad and the potentially dangerous aspects of mandatory minimum sentences.
The Case for Mandatory Minimum Sentences: R v. Neary
Early in 2014, life was good for Seamus John Neary. He was about to graduate from the University of Saskatchewan with a degree in International Studies and Economics and was trying to decide whether to attend grad school at UBC or go to law school. Neary had other options as well. He’d been a star football player in both high school and university – good enough that he was being scouted by CFL teams. He’d been his class valedictorian in high school and received a host of both academic and athletic scholarships.
Neary’s charmed life took a detour when police placed a suspected drug dealer under surveillance. The suspect was observed coming out of Neary’s apartment with what appeared to be a full back-pack. It contained seven pounds of marijuana. The police got a warrant to search Neary’s apartment, where they found marijuana, psilocybin, a suspiciously large amount of cash and a rental agreement for a storage locker in Neary’s name. There was another 13 pounds of marijuana in the locker. Neary pleaded guilty to possession of the psilocybin, but contested charges of trafficking and possession for the purpose of trafficking. He was convicted on all counts.
Neary’s lawyers, family and friends blitzed the court with support prior to sentencing. As the trial judge described it, “Mr. Neary’s community and family support network was evidenced by numerous letters from professors, coaches, employers, family and notable citizens of Saskatoon.” The effort paid off. Notwithstanding the 2012 legislation imposing mandatory minimum sentences for drug trafficking and court sentencing guidelines calling for a sentence of 15 to 18 months for this level of offense, the trial judge said:
No larger good is served sentencing Seamus John Neary to jail. He poses no danger to the community. He has conducted himself well as a citizen but for this single unfortunate foray in the mire of the drug world. To be certain, as he attempted to engage in a criminal enterprise, his crimes are deserving of denunciation and deterrence.
According to the trial judge, Neary was a fine young man with a bright future, much community support and a good lawyer. For such a person, jail was not deemed necessary. Neary was sentenced to a two-year suspended sentence. Unfortunately for Neary, this was not the last word. The Saskatchewan Court of Appeal said:
The trial judge overemphasized Mr. Neary’s personal circumstances and failed to take into account the seriousness of the offences and the level of his moral culpability. Mr. Neary trafficked a substantial amount of marijuana…
While marijuana is considered a soft drug, the trafficking of which is less serious than the trafficking of hard drugs, Mr. Neary, because he was in possession of or able to traffic 20 pounds of marijuana, is above a mere street level trafficker and holds a higher position in the distribution system. Moreover, the trafficking was a commercial operation. There is no evidence here that Mr. Neary is addicted in any way. He did it for the money. This aspect was underemphasized by the trial judge and as a result diminished his view of the moral culpability of Mr. Neary.
Noting that “Judges are bound to apply the law as it exists”, the Court of Appeal sent Neary to the slammer for 15 months.
Many opponents of mandatory minimum sentences argue that the resulting inflexibility and restrictions on judicial discretion mean that the poor, oppressed and marginalized will be treated more harshly than those more privileged. I have trouble buying that argument. Neary was but one example of the affluent, privileged and socially connected receiving special consideration by the court (at the trial level, not so much at the Court of Appeal). The logic of mandatory sentencing is that if a particular act is deemed worthy of jail-time for some, it is worthy of jail time for all – even if it disrupts going to law school or playing professional sports. With mandatory minimums, the person capable of generating “numerous letters from professors, coaches, employers, family and notable citizens of Saskatoon” goes to jail as often as the poor kid from poor family lacking this level of financial and social capital.
The Case Against Mandatory Minimums: R v. Smickle
Leroy Smickle’s life was nowhere near as privileged as Seamus Neary’s, but he was doing okay. In 2009, the 27-year-old Toronto man had a job, a steady girlfriend and two children. He had never been in trouble with the law. It all came undone one March evening – ironically, because Smickle decided not to a nightclub.
Smickle and his girlfriend popped in to visit Smickle’s cousin. The cousin and the girlfriend wanted to go out to a nightclub. Smickle begged off; he had to work the next morning. The other two departed for some fun. Smickle hung around his cousin’s apartment. He found a .25-calibre semi-automatic handgun under the couch. Smickle set up a webcam and took pictures of himself in “tough-guy” poses with the gun, posting them on his Facebook site.
Smickle’s response to finding the gun was unwise, but he was also incredibly unlucky. His cousin was suspected of being a drug dealer. This was the evening the police had decided to raid the cousin’s apartment. As Smickle was posing for the camera, the police SWAT team made a “dynamic” entry. They crashed through the door using a battering ram, threw in a “flash/bang” bomb, and swarmed in. Smickle was standing in the middle of the room with a loaded and cocked gun in his hand. It’s actually kind of amazing he didn’t get shot. As it was, he dropped the gun and complied with orders to fall to the floor. Smickle was handcuffed and arrested. The search revealed a veritable arsenal in the apartment. Smickle was in big trouble. He spent three months in remand custody before getting interim release on very strict conditions. Canada’s court system works slowly, so Smickle waited.
When he finally got his day in court, Smickle was found guilty of possessing a loaded restricted firearm. He successfully convinced everyone that he had no knowledge of the other weapons. He also tried to argue that he didn’t know the gun was on the floor beside him, but the pictures he’d just posted on Facebook undermined that defence.
There was a general consensus that Smickle was not dangerous and had no criminal intent. On the evening of his arrest, he’d made a responsible decision to avoid the night club followed by an irresponsible, stupid one – posing with the gun. I’m willing to bet he will never repeat that error. The problem was that he’d been caught red-handed holding a loaded restricted weapon. He was clearly in possession of it. This offence carries a mandatory minimum sentence of three years incarceration – serious time in a federal penitentiary.
The legislatively prescribed sentence was pathologically inappropriate for the circumstances. The trial judge refused to impose it. Smickle was sentenced, effectively, to time served while waiting trial. The Crown appealed the sentence, but even the prosecutors didn’t ask for the mandatory minimum. Nobody saw any point to sending Smickle to a penitentiary to serve hard time with murderers and rapists. However, Ontario’s Court of Appeal said the trial judge was too lenient and sentenced him to two years less a day; this would keep him in a provincial jail for the balance of his sentence. Smickle had been on conditional release while waiting for the appeal hearing. He had gotten engaged, was working, and had been in no more trouble. After accounting for time served, the Appeal Court decision meant he’d have to go back to jail for about a year.
Smickle’s lawyers went back to the Court of Appeal asking, essentially, “what’s the point?”. It had been five years since that unfortunate evening in March of 2009. Smickle had complied with every condition of release. Sending him back to jail would punish his children, his fiancé and his employer. Sending him back to jail poses “a significant risk to the stability of the respondent’s present life and, therefore, to his ultimate rehabilitation. That ultimate rehabilitation provides, by far, the best long-term hope for “a just, peaceful and safe society”. The Appeal Court was convinced. Smickle did not have to go back to jail.
Smickle’s case is the best evidence I’ve seen against mandatory minimum sentences. The principle of “DO THE CRIME, DO THE TIME” sometimes makes no sense. Smickle was clearly guilty of possessing a loaded restricted weapon, but … his possession of it was an accident combined with a moment of stupidity. He was not intending to commit any other crime with the weapon. Treating him as if he was an armed robber or contract killer was transparently stupid to everyone involved in the case – including the prosecutors.
The Prosecutorial Power of Mandatory Minimums: R v. Morrison
In the winter of 2012-2103, Douglas Morrison was bored. The 67-year-old man worked as a groundskeeper at a golf course. The work was seasonal. Morrison had nothing to do during the long winter days while his wife was at work. To fill in the lonely hours, he started spending time on Pornhub.com and participating in sexually explicit internet chatrooms. In January of 2013, he posted an ad on Craigslist that read:
Daddy looking for his little girl – m4w – 45 (Brampton)
Daddy looking for his little girl to meet and have some fun with him during the day next week on Tue. and Wed of this week have the place all to ourselfs too, in the Brampton and Knightsbridge area.
Posting internet ads looking for sex with children is a lot like posting an ad looking for a contract killer. Ninety-nine times out of a hundred, any respondent is a police officer. Such was the fate of Douglas Morrison. He spent a few months exchanging texts with a police officer who presented herself as a 14-year-old girl. Morrison eventually broke off the exchange. With that, the cops came to get him. When interrogated after arrest, Morrison made statements that implied he believed his correspondent was a 14-year-old girl. At trial, he argued he thought he was engaged in role-playing with an adult. The judge didn’t buy it. Morrison was convicted.
This is where things get interesting.
Shortly before Morrison’s arrest, Parliament increased the mandatory minimum sentences (originally imposed in 2005 during Paul Martin’s term as Prime Minster). If the Crown proceeded with the charge as a summary offence, Morrison’s offence carried a mandatory minimum of 90 days. If charged as an indictable offence, the mandatory minimum was one year. Prior the mandatory minimums being imposed, the normal sentencing range for the offence was 12 to 24 months, with non-custodial sentences imposed “only in the rarest of cases.”
The judge clearly believed that Morrison’s offence belonged at the low end of the spectrum for the offence. Morrison was 67 years old. He had no previous criminal record. He had not actually met the person. He broke off contact. He was, pretty clearly, not seriously engaged in trying to lure a child. His offence arose from a combination of boredom and breathtaking stupidity. The judge thought a taste of jail was warranted, but only a taste – 40 days, to be precise.
One problem with this sentence was the mandatory minimum. Ninety days is longer than 40 days. But it was worse than that.
The offence that Morrison was convicted is a “hybrid” offence. The Crown prosecutor can proceed either on a summary or indictable basis. The idea is that the summary process can be used for less-serious offences, with more serious cases going the indictable route – thereby automatically increasing the sentence upon conviction. The trial judge and appeal court judges all agreed that Morrison’s behavior fell at the very low end of the spectrum for this offence. Bad but not horrible. But judges don’t make the charging decision. Prosecutors do. In this case, the prosecutor proceeded with the charge as an indictable offence. That made the mandatory minimum one year. That’s a lot longer than the 40 days the trial judge thought appropriate.
The trial judge ruled the mandatory minimum of one year constituted, in the circumstances, an unconstitutional cruel and unusual punishment. This was upheld by Ontario’s Court of Appeal. In 2019, the Supreme Court punted on the question of the legality of mandatory minimums by overturning the conviction and ordering a new trial.
The outstanding question is: why did the Crown prosecutor proceeded with Morrison’s case as if it was amongst the most serious, heinous example of this kind of offence when the judges thought it was not?
I don’t know the answer to this question; the prosecutor may have had excellent reasons that are not readily apparent in the court decisions. However, I’m going to speculate about one possible reason: Morrison pleaded not-guilty and fought the charge. Proceeding with the case as an indictable offence raises the stakes of a conviction. The higher mandatory minimum sentence can serve as an “encouragement” to plead guilty. Mandatory minimums combined with prosecutorial discretion on charging gives prosecutors a powerful tool in nudging a defendant towards a guilty plea. The strength of this nudge depends on the differences in the length of the mandatory minimums. In Canada, the differences are generally kinda, sorta modest. For the charge Morrison was facing, the difference was the gap between 90 days and one year. It’s noticeable, especially for someone who is 67 years old, but would not be life changing for a younger person.
In the United States, the gap on potential outcomes can be huge. Let’s take a hypothetical (but typical) case of a young person selling small amounts of marijuana. On a first offence, he would likely get probation; for a second conviction, he’d get a month or two in jail. If he carried or possessed a gun while conducting his business, 18 U.S.C. § 924(c) stipulates a mandatory minimum sentence of 5 years. A second conviction carries a mandatory minimum of 25 years. The decision to include a charge under 18 U.S.C. § 924(c) is at the sole and unreviewable discretion of the prosecutor. What happens when our kid gets busted? Very often, the prosecutor will offer to “eat the gun” in exchange for a guilty plea. Fighting the charge becomes a very high stakes exercise for the accused. For a first offence, a guilty plea means probation. Conviction after a trial means 5 years.
Abolishing Mandatory Minimums
The most significant mandatory minimum sentence in Canada was imposed in 1976 when capital punishment was abolished. As part of the trade-off for officially putting the hangman out of work, Parliament passed a “life-means-life” provision. Prior to 1976, a convicted murderer could be released on parole in as little as 7 years; after 1976, people convicted of first-degree murder were ineligible for parole consideration for 25 years.
In 2005, during the administration led by Liberal Prime Minister Paul Martin, Parliament passed mandatory minimum sentences for several sexual offences against children. The Harper government increased these and introduced several more mandatory minimums – a few of which the Trudeau government has now (after over 6 years in power) declared to be racist and in need of abolishment. The reality is that the mandatory minimum sentences imposed by the Harper government had very little impact on overall incarceration rates; the mandatory minimums were usually set at the low end of the sentencing range already being imposed by the courts. However, the Harper-era mandatory minimum sentences can affect individual cases. For Seamus Neary, they meant a “good boy” would be treated the same as someone with less opportunity in their lives. For Leroy Smickle, they almost meant an outcome that was far harsher than his momentary bad judgement warranted. For Douglas Morrison, the hybrid mandatory minimums created the possibility of a coerced guilty plea.
Whatever your position on the mandatory minimum sentences imposed during the Harper era, remember that most were supported by the Liberals when they were in opposition and have not yet been abolished by the Liberals when they were in government. Its been over six years, after all. There was a fair bit of hypocrisy on in the rhetoric of the Conservatives when some of these mandatory minimum sentences were put into the Criminal Code - and there has been just as much from the Liberals in their periodic but outraged opposition to them.