In ALG Blog

Photo: Justice, 50 Fleet Street, London by mira66 (CC BY 2.0

The use of harsh sentences to coerce pleas is a staple of American criminal justice. Alas, this perverse phenomenon has arrived in Canada.

Mandatory minimums give prosecutors immense negotiating power. Until recently there were few situations where the candy of this temptation dangled before Canadian Crown counsel. Courtesy of the Harper government, it now litters our legal landscape. The result will be injustice and delay.

First the injustice. A tough prosecutor can coerce pleas from defendants with the unstated threat of huge penalties for insisting on their right to a trial. Exercising this right can mean the difference between a long stretch of imprisonment and a proportionate sentence. As in the U.S., the prosecutor’s behaviour during such a negotiation is virtually immune from review. (See Krieger v. Law Society of Alberta, 2002 SCC 65; R. v. Nur, 2013 ONCA 677 at paras. 191-96.) Pleas of innocence are thus left to the mercy of a lawyer rather than a judge or jury. The immense pressure mandatory minimums puts on innocent defendants to plead guilty is well-documented.

Paradoxically, harsh mandatory minimums also contribute to delay in the courts. A small but significant class of defendants will never plead guilty if they are going to go to jail. Some have a good argument about why they can’t be imprisoned (for example, for health or family reasons). Mandatory sentences take away the judges’ ability to make exceptions for such offenders, operating as a necessary safety valve. Instead such cases clog the system.

We could learn from the American experience and refuse to allow prosecutors to punish defendants for exercising their constitutional right to a trial. There is no reason to think we won’t repeat the mistakes our neighbours to the south made for the last quarter century. But the federal government is too addicted to imprisonment as a vote-getter to dump it now.

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