1. Introduction
Canada’s federal Parliament may set mandatory minimum and increase maximum sentences for the crimes or offences it creates. Conflicts occur when mandatory minimum sentences are found to be unconstitutional by the Supreme Court of Canada (SCC) and increased maximum sentences clash with other sentencing principles.
This posting tries to illustrate the nature of Canada’s highly technical and contradictory sentencing system. Literally, appellate courts have written millions of words and hundreds of thousands of pages trying to rationalize sentence under a confusing and often contradictory system. Trial judges resign themselves in trying to meet the vague standards set by the appellate courts and at the same time satisfying public demand.
2. Mandatory minimum sentences
Parliament sometimes fixes mandatory minimum sentences when there is an outbreak of certain crimes that it wishes to deter. Judges cannot sentence below that minimum.
In a 1987 decision called R. v. Smith, the SCC considered the legality of an 8 year sentence for importing illegal narcotics into Canada. The quantity involved was 7.5 oz. of 85% to 90% of pure cocaine that the defendant brought back from Bolivia. At the time, Parliament fixed a mandatory minimum of 7 years for this offence.
The SCC found the Parliamentary 7 year minimum was so excessive as to outrage public decency. It held the minimum should be declared unconstitutional because it infringed the defendant’s s. 12 Charter right to be free of "cruel and unusual punishment." The court returned the case to the BCCA to fix an appropriate sentence.
Black’s Law Dictionary defines cruel and unusual punishment as "Punishment that is tortuous, degrading, inhuman, grossly disproportionate to the crime in question, or otherwise shocking to the moral sense of the community."
Had Mr. Smith eluded Canadian customs officials, he could have diluted the almost pure cocaine into many smaller packages for street sale. Police now estimate that 75% of all crime is drug related. My police sources tell me that the 7 oz of cocaine probably would be diluted into 70 to 140 packages for street sale. Given these facts, arguably an 8 year sentence today for a similar offence would not be grossly disproportionate to his crime or otherwise shocking to the moral sense of the community.
Today, the statutory maximum for such importation is 10 years. There is no mandatory minimum. Sentences now range from 2 to 10 years depending upon the quantity of drugs and their addictive character.
The fallout from the 1987 SCC decision seems to have dampened Parliament’s enthusiasm for setting minimum sentences for other crimes because the SCC might declare them unconstitutional.
4. American law on sentences amounting to "cruel and unusual punishment
The Eighth Amendment to the U.S. Constitution prohibits sentences that amount to cruel and unusual punishment. See:
A 1972 decision of the U.S. Supreme Court (UCSC) called Furham v. Georgia set four principles for determining whether a sentence was cruel and unusual. They are:
A severe punishment that is obviously inflicted in a wholly arbitrary fashion
A punishment must not by its severity be degrading to human dignity," especially torture.
A severe punishment that is clearly and totally rejected throughout society.
A severe punishment that is patently unnecessary.
When it comes to drug possession, in 1991 the USSC allowed a mandatory sentence of life imprisonment for the offender’s possession of 650 grams of cocaine. Applying Canada’s 1987 Smith decision to the American test makes it at least arguable that Mr. Smith’s sentence of 8 years for importing 7.5 oz. of almost pure cocaine was not cruel and unusual punishment.
4. Maximum sentences
Each crime in Canada’s Criminal Code sets a maximum sentence for offenders who commit the offence. Very few ever receive the maximum. For example, the sentence for breaking and entering a dwelling house (B&E/; home invasion) is life imprisonment. Appellate courts have approved a few sentences of 11 to 13 years. Mostly they restrain trial judges from imposing sentences of no more than 7 years.
Sometimes Parliament raises the maximum length of a sentence for a particular crime from say 5 years to 10 years. It does so because it believes the previous maximum was so low that sentences did not sufficiently deter offenders from committing the crime.
When sentencing under the new 10 year maximum regime, how do trial judges fix a reasonable sentencing figure? The Criminal Code says that "sentences should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances." It would seem to follow that when trial judges sentence offenders convicted under the new 10 year maximum regime, they must impose a sentence "similar to" those given under the previous 5 year maximum regime.
Raising the maximum sentence to double the number of years does not raise sentences by the same factor. Perhaps I overlooked sections squirreled away in the Criminal Code rationalizing these conflicts. If not, increasing maximum sentences will have little effect on actual sentences.
Bottom line:
1. Canada’s Constitution mistakenly divides responsibility for the criminal law between the federal and provincial governments. Ottawa enacts the legislation and the provinces administer its provisions. Ottawa has no insider knowledge as to how its criminal laws work in practice because provincial administrators are not responsible to federal legislators.
2. An interim measure is to establish a federal Sentencing Guideline System controlled by federal legislators under a Commission they establish. The long term measure is to amend the Constitution so that each province can enact and administer its own criminal laws to suit its own particular circumstances as do all Australian and American states.
3. When that happens, most provinces will probably switch to a Sentencing Guideline System. That will relieve judges from exhaustively examining Ottawa’s sentencing system and passing sentences that the public finds unacceptable.
4. In the meantime, trial judges will continue struggling to produce sentences that comply with appellate court judges’ interpretations of Ottawa’s legislation. Thousands of judicial hours and millions of judicial words will be added unproductively to Canada’s sentencing laws.
25 September 2009
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