Is the Liberal government’s promise to repeal mandatory minimum sentences dead?

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When Prime Minister Justin Trudeau released his cabinet’s mandate letters last month, some of the justice priorities that invigorated his initial campaign and the early days of his first term were noticeably absent.

There was no mention of sentencing reforms, including mandatory minimums, or the over-representation of Indigenous people in Canadian prisons. There was, however, a line about legislation to implement the United Nations Declaration on the Rights of Indigenous Peoples and a promise to continue “moving forward on reconciliation with Indigenous Peoples.”

It’s not altogether surprising, experts say, but it is disappointing and likely indicative of a shift in priorities.

“I do have significant concerns regarding the abandonment of a number of issues that were previously in the party platform,” says Sen. Kim Pate, who’s spent decades advocating for the rights of people in Canadian prisons.

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“The plan to repeal mandatory minimum penalties is certainly a key one.”

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Introducing mandatory minimums, which limit a judge’s discretion for reducing prison terms on a number of criminal offences, was a top priority for Stephen Harper’s Conservative government. This was despite the fact that there is copious evidence showing they don’t work.

When Trudeau came to power in 2015, he promised to look at repealing some mandatory minimums because of their “overuse and quite frankly abuse.” His 2015 mandate letter to then-justice minister Jody Wilson-Raybould asked her to conduct a review of sentencing reforms made by Harper’s government to ensure “we are increasing the safety of our communities, getting value for money, addressing gaps and ensuring that current provisions are aligned with the objectives of the criminal justice system.”

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Trudeau also promised to “fully implement” the Truth and Reconciliation Commission’s recommendations, which include the repeal of mandatory minimums.

There are a lot of reasons why sentencing reform seems to have slipped down the priority list, says Jennifer Quaid, a law professor at the University of Ottawa. The justice minister is not lacking in priorities right now, she says, and sentencing reform is no short-term fix. It is, however, tangled up in so many of the other issues that plague Canada’s justice system, which is why she doesn’t want it to slip from the priority list altogether.

A 2019 government review said the system is seen as inefficient and “crippled with delays.” Indigenous people and other people from marginalized communities continue to be over-represented in the justice system, according to the review, which describes the system as “ill-equipped” to deal with these individuals, even though it “disproportionately” targets them.

Fixing that is “not a one-mandate thing,” says Quaid. “Maybe there is a desire to focus on things that are more realistically achievable in the short term.”

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The government has made “significant changes to improve our criminal justice system and reduce the over-representation of Indigenous people and other marginalized groups,” said Rachel Rappaport, press secretary to the justice minister, in a statement.

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The minister is in talks with many people to assess their priorities and justice views, Rappaport added, saying: “This includes sentencing reform that will stand the test of time.”

Removing mandatory minimums could have positive ripple effects, says Michael Spratt, an Ottawa-based lawyer and partner at Abergel Goldstein & Partners LLP.

It costs a lot of money to incarcerate someone (an average of $314 per day) — even more, he says, when they have to stay for a mandated minimum length.

Not only would removing mandatory minimums save on incarceration costs, Spratt says, but it would likely help reduce the costs associated with litigating cases.

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In cases where someone was ready to enter a guilty plea, they might not because there isn’t the traditional benefit of trading a plea for a reduced sentence, he says, which “means every inch of ground will be litigated and trial times expand.”

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That, in turn, carries its own ramifications.

“We’re dealing with limited resources in court and we’re dealing with this emerging Jordan problem about cases taking too long and becoming at risk of being thrown out of court,” Spratt says.

A Global News investigation last year found that nearly 800 criminal cases have been tossed in the aftermath of the Supreme Court’s R. v. Jordan decision in 2016, which set deadlines of 18 months for provincial court trials and 30 months in superior courts to prevent unreasonable delays.

“Repealing mandatory minimum sentences may be exactly the sort of pressure-release valve that our overburdened courts need.”

It would also help with the over-representation of Indigenous people and other marginalized communities in prison.

Indigenous adults make up 30 per cent of prison admissions across the country, according to 2017-18 Statistics Canada data, even though they make up just four per cent of the total population. That’s up from a decade earlier, when they made up just 21 per cent of admissions.

Indigenous people are also more likely to be sent back after being released. While overall readmission rates dropped to 16 per cent in 2011-12 from 18 per cent in 2001-02, they stayed steady at 23 per cent for Indigenous people, according to the most recent report from the Office of the Correctional Investigator.

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“In the Prairie region especially, young Indigenous men and women continue to cycle through the system unabated,” the report said.

It’s an issue the Truth and Reconciliation Commission also addressed in its final report, shortly after mandatory minimums were introduced. Not only is there “no evidence” to indicate “locking up offenders makes communities safer,” the report said, but “there are concerns that Aboriginal people are not receiving culturally appropriate rehabilitative programs (in prison).”

The Truth and Reconciliation Commission’s 32nd call to action asked the government “to allow trial judges, upon giving reasons, to depart from mandatory minimum sentences and restrictions on the use of conditional sentences.”

Sen. Pate reiterated as much in her 2018 speech introducing Bill S-251, which intended to amend the Criminal Code to do exactly that.

“Canada’s principles of justice, fairness, proportionality and restraint in sentencing — including an obligation in the Criminal Code to consider an individual’s Indigenous history — have been obliterated by mandatory minimum penalties,” Pate said.

“They can result in unduly harsh sentences being imposed on individuals who are most marginalized by sexism, racism, impoverishment and disabling health issues — including those related to mental health and intellectual disabilities.”

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What’s pretty clear, both Pate and Quaid agree, is that mandatory minimums don’t deter people from committing crimes.

“Nobody says, ‘Oh, well, now that there’s a mandatory minimum I’m just not going to break the law,’” Quaid says. “That’s not how it happens because that’s not what drives people to do it.”

Seventy-five per cent of Canadians surveyed by EKOS Research for the Department of Justice in 2017 said they did not believe mandatory minimums are a strong deterrent for people committing crime. A little more than half think mandatory minimums add pressure to an already bogged-down judicial system.

Those people who responded to the survey saying they believe mandatory minimums are an effective deterrent were then told by the person surveying them that their opinion runs contrary to existing research. At that point, 44 per cent re-evaluated their stance and “subsequently found the argument for mandatory minimums as a deterrent to be less compelling.”

Pate’s bill died in the Senate when Parliament dissolved for the election last fall. The mandate letter to Justice Minister David Lametti makes no mention of sentencing reform, something Spratt attributes to the Liberals being burned the last time around.

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“After the Liberals promised this type of reform in the lead-up to the 2015 election and made mention of that in the early part of their mandate and then did utterly nothing to follow through, it’s unsurprising that in the minority Parliament, this has fallen off their radar,” Spratt says.

Pate is hopeful that sentencing reform will still come — even if it no longer seems to be top priority for the federal government. Some members of Parliament, academics and other experts have also been encouraging the senate to reintroduce the bill “as a way to urge the government to take a step in the right direction,” Pate says.

“Although repealing mandatory minimums is not in this round of mandate letters, there seems to be continued receptivity.”

Rappaport did not respond to requests about whether the government would support the reintroduction of the bill. That bill is “exactly what we need,” says Spratt — “an intelligent, focused bill that is supported by evidence.”

And yet, he acknowledges, it can be a tough sell in a minority government, even as courts strike down mandatory minimums.

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“When you don’t know when an election is coming, you don’t know how much runway you have in terms of political capital. And you’re dealing with issues that can be spun by partisans as being controversial,” he says.

“It makes it more difficult to do the principled and courageous thing.”

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