Legal experts Lincoln Caylor and Gannon G. Beaulne make the case that Canada's Parliament has an important role to play in ensuring justice is done

OTTAWA, May 1, 2014 – Today, mandatory sentencing tools are in the spotlight as Parliament continues to promote law-and-order legislation in response to the public's perception that Canada's criminal sentencing regime is overly lenient with offenders. This continues a trend in recent decades of federal governments placing such limits on judicial discretion.

Public commentary on the subject has been overwhelmingly negative, with mandatory sentencing rules meeting fierce criticism from members of the media and academia, and increasingly inventive attempts to subvert them by the judiciary.

But judicial discretion in sentencing has never meant an unfettered entitlement to impose any sentence deemed appropriate by a particular judge, according to a new report released today by the Macdonald-Laurier Institute, titled "Parliamentary Restrictions on Judicial Discretion in Sentencing: A defence of mandatory minimum sentences". Prominent legal experts Lincoln Caylor and Gannon G. Beaulne argue these sentences are an effective tool for consistently applying the law while ensuring judges don't provide too much leniency to those who have been convicted of crimes, and that Parliament has a role to play in ensuring the application of justice is consistent with the moral judgment of society.

Caylor and Beaulne point out that mandatory minimum sentences are nothing new. Since the creation of the Criminal Code in the 1890s, Parliament has at various times required judges to impose minimum punishments on crimes that range in severity from keeping a common bawdy house to murder. The federal government's decision in the past few years to expand the number of offences to which mandatory minimum sentences apply has raised the volume on criticism. Critics argue these sentences limit judicial discretion by taking away a judge's ability to account for special circumstances when sentencing offenders. This has led to judges criticizing, circumventing and in some cases entirely ignoring mandatory minimum sentences and mandatory victim fine surcharges they feel limit their ability to account for unique circumstances in doling out punishment.

Caylor and Beaulne charge that "judges who ignore or otherwise circumvent mandatory minimums act contrary to the office that they have sworn to uphold … ignoring mandatory minimums is no more acceptable than would be ignoring mandatory maximums".

They argue that, as long as they don't create a floor for sentencing that disproportionately punishes an offence, mandatory minimum sentences uphold and promote the rule of law. They provide consistency in punishment and often help to rein in judges who many Canadians feel are often too lenient.

"Rather than eliminating a judge's ability to assess a proportionate sentence, mandatory minimums set a stable sentencing range for an offence, permitting citizens to understand in advance the severity of the consequences that attend the commission of that offence," the authors write.

In the paper, Caylor and Beaulne analyse the history of mandatory minimum sentencing tools and find that Parliament has been compelled to "continually monitor the laws in the statute books to ensure that they are connected to Canada's evolving understanding of the moral gravity of a given offence".  They argue that this is the proper role of Parliament and that if mandatory sentencing tools remain within the boundaries of the Constitution Act, 1982, they can promote proportionality and the rule of law. "If disproportionate, arbitrary, or over-harsh mandatory sentences are imposed, they do not promote justice and, thus, should be struck down", the authors write. "No middle ground can be maintained".

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Lincoln Caylor is a partner with Bennett Jones LLP in Toronto and a member of the board of directors with the Macdonald-Laurier Institute. He practices commercial litigation, dealing with issues related to fraud, errors and omissions, securities litigation, commercial arbitration and contractual disputes. Gannon G. Beaulne is an associate with Bennett Jones LLP who has a general litigation practice, focusing on commercial, class action and securities matters.

The Macdonald-Laurier Institute is the only non-partisan, independent national public policy think tank in Ottawa focusing on the full range of issues that fall under the jurisdiction of the federal government.

For more information, please contact David Watson, managing editor and communications director, at 613-482-8327 x. 103 or email at david.watson@macdonaldlaurier.ca. On Twitter @MLInstitute

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