Over the past several years, the federal government has amended the Criminal Code so as to create a dizzying array of mandatory minimum sentences for offences ranging from marijuana production to firearms possession. Predictably, these amendments have occasioned rank injustice as a result of the inevitable variability of human affairs.
The press releases that accompany these amendments conjure images of dangerous streets and gangs running wild, when the reality in Canada is a declining crime rate, due largely to the impact of demographics. There simply are not a lot of elderly bank robbers.
The reality distortion field that justifies mandatory jail sentences suddenly collapses when faced with human realities such as the octogenarian war veteran who hobbled into court in Victoria recently on a charge of possessing a Second World War-vintage handgun that was found by a care worker in his kitchen drawer. People are rightly aghast that we would have a justice system in which a judge would be required to send such a person to jail for months or years.
A recent editorial urged potential jurors to ignore judicial instructions and to simply acquit accused people so as to prevent unjust mandatory sentences from being imposed.
While we are fortunate to have a jury system that brings community values to bear on the justice system, it is exceedingly unfortunate that the criminal law has become so rigid and out of touch that citizens feel compelled to urge this sort of extra-legal action.
The restoration of judicial discretion to avoid the imposition of unjust sentences would not only promote the rule of law, but also ensure more consistently fair outcomes.
We ought not to have a justice system that is so inflexible that the only available outcomes are an acquittal or conviction followed by an excessively long jail sentence.
In a related series of amendments, the federal government now requires an extra fine, euphemistically called a victim fine surcharge, to be imposed in every case along with whatever other sentence is imposed. Judges are now required to impose these extra fines, even if doing so would result in undue hardship to an offender or their family.
A judge in Ontario recently decried the requirement to impose the extra $100 fines on mentally ill homeless people living under the local overpasses.
Unlike most other provinces, British Columbia has no program in place to allow impoverished offenders to perform community service to work off their fines. Instead, we convert unpaid fines into jail time at the rate of eight times the hourly minimum wage per day in jail.
Now, in British Columbia, if a poor person is convicted of stealing food to eat, they will receive an extra fine on top of their sentence and will be subject to going to jail if they do not pay.
Ill-conceived criminal justice legislation such as this is harmful, not only because of its immediate impact on impoverished offenders, but also because of its potential to erode respect for the rule of law.
Asking judges to impose uncollectible fines on the poor and to sentence elderly veterans to the penitentiary breeds disrespect for the rule of law. This impoverishes us all.
Michael Mulligan is a Victoria lawyer.
