In his crusade against the long-gun registry, Stephen Harper used to say “you don’t prevent gun crimes in our cities by cracking down on duck-hunters.”
Now the Supreme Court of Canada has decided to strike down the government’s mandatory minimum sentencing legislation on gun crimes, on the grounds that it could side-swipe …. duck hunters.
The chief justice and five of her fellow Supreme Court justices spiked the law as unconstitutional on the grounds it could envelop the responsible gun owner who stows his unlocked firearm and ammunition in the wrong place.
Critics of the court will not be surprised at the decision — they will point out it was always likely to rule in favour of increasing the discretion of fellow judges.
But they may be slightly in awe of the ingenious fashion the majority of the justices reasoned their decision.
“A three-year term of imprisonment for a person who has essentially committed a licensing infraction is totally out of sync with the norms of criminal sentencing — there is a cavernous disconnect between the severity of the licensing types offences and mandatory minimum three-year terms of imprisonment,” wrote McLachlin for the majority.
Nobody would dispute that judgment, had any such responsible gun owners fallen foul of the law.
However, as the dissenting justices — Marshall Rothstein, Michael Moldaver and Richard Wagner — made clear in their strongly worded submission, the hypothetical licensing type cases relied upon by the majority “are not grounded in experience or common sense.”
Using language more appropriate to the House of Commons during question period, the dissenters said the hypothetical scenario “stretches the bounds of credulity,” pointing out that not a single licensing type of case has resulted in the imposition of a mandatory minimum sentence.
The nub of the decision is that Parliament’s “valid” will has been nullified by the court. “It is not for this court to frustrate the policy goals of our elected representatives, based on questionable assumptions and loose conjecture,” the dissenters wrote.
Wow. “This is now the most political court we’ve ever seen,” said Lincoln Caylor, a litigation lawyer at Bennett Jones, who has written on this subject for the Macdonald Laurier Institute. He said the strength of the language used by the dissenters reflects the divisions and lack of consensus within the court.
Gannon Beaulne, an associate at Bennett Jones and Mr. Caylor’s co-author, said the majority’s logic would be unimpeachable, if the law was being applied to duck hunters. Precedent suggests it is not.
This latest ruling suggests a court that is lurching from one erratic decision to another.
In a previous ruling, it had cautioned against the use of extreme hypotheticals. Since there are no recorded cases of responsible gun owners being nailed by the mandatory minimum law, it is fair to say this example is extreme, to the point of being incendiary.
You don’t have to be a fan of mandatory minimum sentences to think that the Supreme Court has over-stepped the mark in this case.
It is ironic that Rob Nicholson, the justice minister who introduced the law struck down Tuesday, was vice-chairman of the justice committee that rejected mandatory minimums during Brian Mulroney’s government. “Imprisonment should be used with restraint,” it concluded in 1988.
The evidence for their effectiveness is uneven. An evaluation in Canada of a one-year mandatory prison term for the use of a firearm in crime in 1977 was accompanied by a modest decrease in the proportion of homicides and robberies committed with guns. At the same time, there was evidence of a displacement to offences committed by other weapons, according to a study from 2002.
A behavioural study from Western Australia suggested most robbers who had used guns indicated they would continue to do so, despite their awareness of sentence enhancements.
Certainly, McLachlin and her five colleagues are not impressed by the law’s effectiveness. “Empirical evidence suggests mandatory minimum sentences do not, in fact, deter crimes,” the chief justice wrote for the majority.
The “tough on crime” approach has proved an effective political weapon in the Conservative Party’s arsenal. Opponents who have demurred have been labelled “soft on crime.”
Yet the sense mandatory sentences have no deterrent effect, and clog up the prison system, is becoming widely accepted around the world — even in the United States.
“I think we had a trend in America for a long time on mandatory minimums where we took away discretion from judges. I think there’s an appreciation that that approach has some collateral damage,” said Paul Ryan, one of several Republican presidential candidates who have called for sentencing reform.
Texas has pioneered criminal justice reform, closing prisons and spending the money on treatment. Crime has since dipped and recidivism rates dropped.
Yet these changes have been driven by politicians. It is up to Parliament to review laws to make sure they properly align with the demands of justice.
When three such eminent jurists as Justices Rothstein, Moldaver and Wagner warn in such forceful terms that the Court has overstepped its bounds, we are in precarious constitutional territory.
Original Article
Source: news.nationalpost.com/
Author: John Ivison
No comments:
Post a Comment