Writing in the Ottawa Citizen, Macdonald-Laurier Institute authors Lincoln Caylor and Gannon G. Beaulne say that judges have gone too far in their attempts to sidestep mandatory minimums.

Citing the recent example of R. v. Michael, where an Ontario court justice refused to order $900 in surcharges, the authors argue that judges who duck imposing mandatory minimum sentences risk distorting the principle of gross disproportionality.

Caylor and Beaulne are the authors of an MLI paper, titled “Parliamentary Restrictions on Judicial Discretion in Sentencing: A defence of mandatory minimum sentences”, that argues mandatory minimums help enforce the rule of law.

By Lincoln Caylor and Gannon G. Beaulne, Aug. 21, 2014

The Harper government has lost some very public court battles lately, highlighting current tensions between Parliament and the judiciary over mandatory minimum sentencing tools.

The government’s most recent defeat came in R. v. Michael. In this case, a prominent Ontario Court judge in Ottawa, Justice David Paciocco, convicted a homeless, alcohol and drug addicted 26-year-old named Shaun Michael of nine offences, including assault against a peace officer. Michael faced $900 in mandatory victim surcharges in addition to four months already spent in custody and two years of probation.

Justice Paciocco refused to order the mandatory victim surcharges. He found that a $900 fine would be cruel and unusual punishment when combined with prison and probation, contrary to Section 12 of the Charter. And so the Court struck down the Criminal Code section creating the mandatory victim surcharge regime as unconstitutional.

This decision comes on the heels of a Supreme Court of Canada case thwarting Parliament’s efforts to restrict extra credit for time served by prisoners before conviction. The Harper government has also come under fire in the media for increasing the number of mandatory prison sentences in the statute books.

The common thread tying together these challenged policies is Parliament’s attempt to constrain the discretion of sentencing judges. For most offenders, the sentence is the only significant decision that the criminal justice system will make. So who should have the last word in sentencing — Parliament or the judiciary?

Historically, Canadian courts have been chiefly responsible for ensuring that the sentence fits the seriousness of the crime. But in the 1990s, the Chrétien government spearheaded one of the largest enactments of mandatory minimums in Canadian history. Then, beginning in 2008, the Harper government toughened mandatory penalties already on the books and imposed escalating minimums for some repeat offenders. It also made the victim surcharge mandatory.

Some judges have become increasingly inventive, bold and arbitrary in identifying rationalizations to avoid applying mandatory penalties, including the victim fine surcharge prior to R. v. Michael. This troubling judicial response raises important questions about the rule of law and the roles of Parliament and the courts in sentencing.

All judicial discretion has limits. Parliament has every right to impose what it believes to be a just sentencing range.

Canadian courts can — and indeed must — ensure that our laws stay within the strict boundaries of the Constitution. Courts are therefore empowered to strike down mandatory penalties, provided that they are not merely disproportionate but grossly so. Judges are not elected legislators, and so the bar must be set high.

Michael is clearly results-oriented. Justice Paciocco was satisfied that a sentence of four months in prison and two years on probation — including the significant attendant stresses — was proportionate to Michael’s crimes. And yet Justice Paciocco found that the stresses associated with owing a $900 debt to the Crown rendered the sentence grossly disproportionate.

This is a dangerously fine line between proportionate and grossly disproportionate. One might fairly ask: if a $900 debt that the Crown can do little to collect is grossly disproportionate to nine convictions for offences that include assault against a peace officer, could any mandatory penalty ever survive Charter scrutiny?

Michael invites judges to import subjective considerations and personal views of justice into the gross disproportionality test. If exercised inappropriately, this test could quickly become a means through which the judiciary can usurp Parliament’s power to enact valid criminal sentencing laws.

Judges should carefully scrutinize mandatory penalties. But they should measure them against the established meaning of gross disproportionality and the written and unwritten principles of the Canadian Constitution — not their own personal views of justice. Judges must decline the invitation in Michael to blur the boundaries of gross disproportionality to the point that the test becomes deprived of any objective content.

Lincoln Caylor and Gannon G. Beaulne are lawyers at Bennett Jones LLP in Toronto. They are the authors of the Macdonald-Laurier Institute publication Parliamentary restrictions on judicial discretion in sentencing: A defence of mandatory minimum sentences.

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