Mandatory minimum sentences should be recognized as failed sentencing practice

In criminal justice policy, mandatory minimum penalties (MMPs) are the hobgoblin of small minds.

So, perhaps it should come as no surprise that Erin O’Toole, a serious contender for the leadership of the Conservative Party of Canada, promises to double down on the failed sentencing practice. His justice platform is one that promises more minimum sentencing.

At their core, MMPs are unconstitutional. Point blank. Courts across the country and all the way up to the Supreme Court of Canada have found that MMPs violate the Canadian Charter of Rights and Freedoms.

But this is no surprise to O’Toole, who freely admits that he would invoke the Charter’s notwithstanding clause to impose MMPs.

There is no sugar-coating the fact that O’Toole is advocating to reimpose the same MMPs that the Supreme Court of Canada ruled were unconstitutional for firearms offences because they could lead to “abhorrent or intolerable” sentences that are "so excessive as to outrage standards of decency.”

Why is O’Toole, a trained lawyer, putting his justice eggs in the MMP basket?

I suspect that his MMP promise, much like his blustering that he would “stop erasing Canadian history and values” and “stand up against Cancel Culture,” simply reflect a craven politician playing the populist card.

Because the evidence is clear: MMPs are an ineffective and dangerous justice tool. They do not deter crime. They do not increase public safety. They disproportionately affect Indigenous and other racialized Canadians. And they are incredibly expensive.

But we have known that for decades.

In 1984, the Canadian Sentencing Commission concluded that MMPs create injustice without accomplishing any of the other functions ascribed to them.

In 2005, a Department of Justice Canada report found evidence that “minimum sentences are not an effective sentencing tool: that is, they constrain judicial discretion without offering any increased crime prevention benefits.” 

In 2007, the Parliamentary Information and Research Service department cited a study saying that “existing research generally does not support the use of mandatory minimum sentences for the purpose of deterrence, or for the purpose of reducing sentencing disparities.”

In 2008, Anthony Doob, a respected criminologist from the University of Toronto, told the Standing Senate Committee on Legal and Constitutional Affairs that “mandatory minimum penalties for firearms offences have been discussed extensively. The evidence of their ineffectiveness is clear. Numerous studies have been carried out in various countries demonstrating that mandatory minimum penalties of this kind do not deter crime.”

And in 2017 a federal government report concluded that research in Canada and the United States has found “no evidence that MMPs have deterred crime; rather, some studies suggest that MMPs can result in overly harsh penalties and disparities, that they increase costs to the criminal justice system as a result of higher levels of incarceration, and that lengthier sentencing may actually increase recidivism.”

MMPs don’t reduce crime or make our streets safer. In fact, evidence suggests that they increase crime rates. MMPs shift transparent and reviewable discretion away from judges to shady back rooms where prosecutors can use the threat of mandatory sentencing as a bargaining chip. And MMPs have resulted in the expensive ballooning of jail populations, including the disproportionate imprisonment of Indigenous and other racialized persons.

Expensive, racist, ineffective, unfair, and cruel: this is why minimum sentences have routinely been declared unconstitutional.

This is the justice policy that O’Toole has chosen to embrace.

And it would also seem that mandatory minimum sentences might not even be as popular as O’Toole hopes.

Research conducted by the government in 2018 found that over three-quarters of Canadians believed that applying the same minimum sentence to all offenders, who are convicted of the same offence, is not fair. And 90 per cent of Canadians believe that judges should be given the sentencing discretion to impose penalties less than the mandatory minimum.

But let’s not just focus on O’Toole. In 2015, Prime Minister Justin Trudeau told The West Block’s Tom Clark that “where we have concerns is in the overuse and, quite frankly, abuse of mandatory minimums.”

That same year, an emotional Trudeau promised to fully implement the Truth and Reconciliation Commission's 94 calls to action. The 32nd call to action was simple: allow judges to depart from mandatory minimum sentencing.

And in June 2020, the Parliamentary Black Caucus urged the government to take immediate steps to eliminate systemic racism and protect the lives of Black Canadians. One of their first justice recommendations was the elimination of MMPs.

That letter was supported by over 100 “allies,” including Minister of Justice David Lametti: the one person who actually has the power to eliminate MMPs.

A true ally would use their position of power to take action. Instead, Lametti and the Trudeau government have done nothing.

The evidence is clear, and it has been for decades: MMPs are a failed policy.

So now is the time to ask, who is worse? O’Toole, who seems content to ignore evidence in favour of blind ideology? Or Trudeau and Lametti, who say the right thing but leave dangerous and racist laws on the book?