MANDATORY SENTENCES 'NAIVE': EXPERTS

Most Agree With Gomery Criticism of Tory Plan

Most legal experts agree with retired judge John Gomery's criticism of
new mandatory minimum sentences being proposed by the Harper
government, calling them simplistic and likely to produce unjust outcomes.

Sentencing is a very complex task, says Ed Ratushny, a law professor
at the University of Ottawa, requiring judges to consider the
circumstances of the crime, the background of the offender and
mitigating circumstances.

But mandatory sentences remove that judicial discretion, he says. That
increases the risk of unjust sentences.

"Because it doesn't allow for a proper balancing of all the factors,
it could result in sentences that are inappropriate," he says, calling
the growing reliance on mandatory minimums to fight crime "simplistic
and naive."

But Mr. Ratushny scoffed at Mr. Gomery's complaint that the proposal
to create mandatory jail terms for drug offenders was a "slap in the
face" to judges.

"I think it's quite frankly silly," he said. "I don't think judges
somehow think a change in the law is insulting to them."

However, William Trudell, head of the Canadian Council of Criminal
Defence Lawyers, agrees that mandatory minimums reflect a lack of
political trust in the judiciary. "What it says is, 'we don't trust
you, judge.'"

David Paciocco, a former Crown prosecutor who teaches law at the
University of Ottawa, says sentencing must be proportional to the
seriousness of the crime and the blameworthiness of the offender.

While mandatory minimums might address the seriousness of the offence
in general, "they can't get to the seriousness of the particular
offence, and the thing they miss entirely is the blameworthiness of
the offender. As a result, judges can end up imposing very unjust
punishments," he says.

Mr. Paciocco says the criminal justice system has always kept defence
counsel "on a short leash" because judges can take extenuating
circumstances into account when it comes time to impose sentence.

"If you take away that sentencing discretion, the system can become
blunt and at times even cruel."

Apart from the human misery they impose, mandatory minimum sentences
generate huge costs for taxpayers, Mr. Paciocco says.

"It's horrendously expensive to incarcerate people," he says. "You
really have to, in a sensible world, make a case-by-case assessment as
to whether it's appropriate, just from a fiscal point of view."

Canada currently has 42 offences that carry mandatory minimum
sentences. There were mandatory minimums as far back as 1892, when the
Criminal Code was created. By 1969, only one remained. But governments
have increasingly turned to mandatory minimums since then, adding five
in 1976, 19 in 1995 and more in 2005 related to child sexual
exploitation.

Canada is not alone; most western nations have enacted mandatory
sentences in recent years. But most allow a limited degree of judicial
discretion in exceptional circumstances -- something notably absent in
Canada.

Mr. Trudell's organization wants the government to let judges weigh
whether a minimum penalty is necessary "having regard to the public
interest, the particular needs of the community and the interests of
the accused."

"This would represent some kind of a balance," he says. "It would
really say that we trust the system."

But the suggestion was not adopted when the government brought in its
omnibus crime bill, which increases mandatory minimum penalties for a
variety of crimes. The bill is expected to receive third reading next
month.

Earlier this month, the Supreme Court of Canada heard a case that
illustrates the difficulties the one-size-fits-all approach of
mandatory minimums can present.

The case concerned Michael Ferguson, a former Alberta Mountie who shot
a prisoner to death during a struggle in a holding cell after the
prisoner pulled the officer's gun from his holster.

After two hung juries, Mr. Ferguson was finally convicted of
manslaughter at his third trial in 1999 -- an offence that carries a
four-year mandatory prison term if it involves a firearm.

But the presiding judge balked at imposing that sentence, given the
circumstances and Mr. Ferguson's previously unblemished 19-year record
as a Mountie. Instead, he invoked an unprecedented "constitutional
exemption" and imposed a two-year conditional sentence.

The trial judge's ruling was reversed by Alberta's Court of Appeal,
which reimposed the mandatory four-year sentence. On Nov. 13, the case
came before the Supreme Court of Canada, which reserved its decision.

Based on the court's record, Mr. Ferguson's chances probably aren't
good. Except for an early Charter of Rights case in 1987 when it
struck down the mandatory seven-year minimum sentence for importing
drugs, the court has taken a hands-off approach to minimum sentences.