The murder of a teenage girl in broad daylight suddenly made the centerpiece of the last government’s crime strategy — nagging farmers and duck hunters to register their rusty old muskets and shotguns — seem a little off point.
Justice Minister Vic Toews has introduced two related crime bills with the Boxing Day shootings clearly in mind; one prescribes mandatory minimum sentences for gun crimes and the other eliminates conditional sentences for serious crimes. They could be called “Jane’s Law.”
Conditional sentences — where criminals spend no time in jail, but serve their time “in the community” — would no longer be available to people convicted of crimes that carry a maximum sentence of 10 years or more.
Tightening up this loophole would affect only the most serious crimes, such as violent and sexual offences, major drug offences, and crimes committed against children. Certain weapons offences — such as assault with a weapon causing bodily harm — would also be removed from the list of conditional sentences when prosecuted by indictment.
But Toews isn’t just proposing to remove get-out-of-jail-free cards from the criminal justice deck. He’s also introducing mandatory minimum sentences that apply to gun crimes like the Yonge Street shoot-out. These range from a one-year minimum for a first offence involving the possession but non-use of a firearm, to 10 years for a criminal who has been convicted two or more times for actually using a gun in a crime. The minimums are graduated depending on the number of prior convictions and the type of gun crime committed.
As Judy van Rhijn reported in last month’s Canadian Lawyer, criminal defence lawyers, law professors, and criminologists are apoplectic. Julian Roberts, a criminologist at the University of Ottawa, says that Toews is “screwing up the whole regime” of criminal law, and suggested that a better alternative to banning
conditional sentences would be to add “curfews” and “absolute house arrest.”
Roberts is half-right. Toews is screwing up the status quo, but he’s doing so on purpose. The legal ideology that thinks a curfew -— based on the honour system — satisfies the sentencing purposes of punishment, denunciation, or deterrence is not just morally wrong, it doesn’t work, as the Boxing Day shooting demonstrated in stark relief.
Toews can only hope that Roberts campaigns noisily against the Conservatives in the next election, perhaps with “curfews for killers” as his call to arms.
Another argument against mandatory minimums that has some resonance is that removing discretion from judges and prosecutors makes the justice system inflexible, leading either to unnecessary not guilty pleas on the part of the accused, or a bias by judges to acquit outright. But that work-to-rule-style intransigence of judges cannot be accepted as a legitimate reason to oppose Parliament’s will when it comes to the seriousness of gun crimes.
For the bench to simply refuse to implement a tougher Criminal Code is no more consonant with the rule of law than if Parliament were to ignore a court ruling on the validity of a statute. The judicial branch of government is not an unfettered power unto itself.
But such predictions by criminologists are likely exaggerated, based on the U.S. experience of mandatory minimum sentences involving drug crimes, including simple possession. The war on drugs is a more controversial disagreement than gun crime, pitting libertarians against conservatives, and raising the issue of a “victimless crime.” It would be hard to imagine the same disobedient bench when it comes to shootings, regarded by both the left and right as immoral and certainly not victimless.
The criminal bar’s objections to Toews’ amendments should not be taken at face value. This is simply a reflection of the criminal-centred legal philosophy that has taken root over the past generation being hit head-on by a victim-centred justice minister. Get used to it.
