Wednesday, July 18, 2012

Toews' comments on mandatory minimums

In the wake of the Toronto shootings on Monday night, Vic Toews took the opportunity to criticize the courts for rejecting his government's mandatory minimum sentences of late:
Mr. Toews said Tuesday, during an interview on Golden West Radio, which operates a number of stations across the prairies, that he is concerned about the courts rejecting minimum sentences, especially given the problem of guns smuggled in from the United States.
It's worth asking then, just what kind of concern and care his government has demonstrated in order to enact those mandatory minimum sentences. If you look at the recent Smickle case, in which a three year mandatory minimum sentence for illegal possession of a loaded firearm was struck down, the kind of dedication to careful governing the Harper Conservatives embody is evident.

Here is the upshot of the arbitrary legislative situation they created in 2008. If the Crown proceeds by way of summary conviction on the offence, there's a maximum sentence of one year. If the Crown proceeds by way of indictment, the minimum sentence is three years. As the judge points out then, there is a gap that is created. There are no sentences permitted in the 1 to 3 year range:

And here's Justice Molloy's review of the legislative history of the provisions in question, with emphasis added throughout. There used to be no gap in the legislation. Now there is a gap and nothing was offered by the governing Conservatives to explain why that change was made:
(ii) Legislative history

[29] The existing scheme came into force on May 1, 2008.3 Prior to its enactment, the s. 95 offence of possession of a loaded restricted firearm existed, but with different penalties. This offence was first added to the Criminal Code in 1995, but did not come into force until December 1, 1998.4 Before 1998, simple possession of such a firearm was an offence and a trial judge could consider the fact that the weapon was loaded to be an aggravating circumstance on sentencing, but there was no separate offence of possession of a loaded firearm. The 1998 amendment also created a hybrid offence for possession of a loaded weapon, but without a gap in the sentencing options between the two forms of the offence. The maximum sentence for a summary conviction offence was one year and there was no min- imum (which provision remains unchanged in the current scheme). However, where the Crown proceeded by indictment, the 1998 legislative changes provided for a minimum sentence of one year and a maximum of ten years. Thus, the minimum sentence for the indictable offence picked up where the maximum sentence for the summary conviction offence left off, providing a full range of sentencing options between the two modes of the offence.

[30] The principal change in 2008 was to increase the previous minimum sentence for the indictable offence from one year to three years for a first offence. This change was initially intro- duced in s. 7 of Bill C-10, which received first reading in the House of Commons on May 4, 2006, followed by second reading and referral to the House of Commons Standing Committee on Justice and Human Rights on June 13, 2006. On February 21, 2007, after studying the proposed amendment and hearing from a broad range of experts, the Standing Committee recommended that s. 7 be deleted from the bill. When the bill came back before the House, that recommendation was not accepted. However, before final enactment, the prime minister prorogued Parliament and Bill C-10 died on the order paper before becoming law.

[31] The same proposed amendments were re-introduced in Bill C-2, which was presented to the Legislative Committee as a confidence measure in 2007. It passed third reading on Novem- ber 28, 2007, received royal assent on February 8, 2008, and with that, the Tackling Violent Crime Act came into force on May 1, 2008.

[32] There appears to have been no consideration at any stage of this process as to the rationale for, or even the implications of, the two-year gap in the sentences available as between the summary conviction and indictment regimes. As was stated by Code J. in Nur, at para. 128:
There is nothing in the record of proceedings before Parliament to indicate that this two year “gap” was the result of some advertent decision or some rational policy, as opposed to mere oversight.
If they want their legislation to withstand constitutional scrutiny, they should perhaps listen and amend their legislation when a parliamentary committee recommends that it be done. See paragraph 30 above.

Alternatively, they might provide a rationale that a court might refer to in order to see what the legislative intent was. The courts were looking here, see paragraph 32, and they found nothing. During all the time these provisions were kicked around Parliament, through a prorogation, as part of a confidence measure, etc. They didn't help themselves.

Not that such actions would necessarily save these mandatory minimums from being struck down. The provisions are still analyzed by the courts in terms of whether they constitute cruel and unusual punishment, as prohibited by the Charter.

The overall point is that if Toews is going to profess to be concerned with courts striking down their mandatory minimums, they're not really doing the work to live up to their end of the bargain.

They should be considering more resources for the underlying causes of gun violence in any event.