I should first say that it's a pleasure to be here. It's always a pleasure to address the honourable members of the committee.
My name is Michael Spratt. I'm a criminal lawyer. I practise solely criminal law here in Ottawa, Ontario. I'm with the firm Webber Schroeder Goldstein Abergel. I've appeared at all levels of court, representing all types of different offenders and offences.
Today I appear before you as a representative of the Canadian Civil Liberties Association, CCLA, which of course is a national organization comprising thousands of members from all walks of life, not just lawyers.
The CCLA was constituted to promote respect for and observance of fundamental rights, to promote individual freedom, and to protect that freedom from unreasonable invasion. It's our position that any policy or any legislation must be the least intrusive possible and must be supported by evidence. To that end, it comes as no surprise that we object to some of the measures in Bill C-299, not because we disagree with the purpose of the bill, but because it employs the failed policy of mandatory minimum sentences that simply will not accomplish the goals of the bill. Mandatory minimum sentences are not supported by the evidence, and they don't come close to effecting the very policy goals they seek to implement.
Our first main concern with the use of mandatory minimum sentences won't be a surprise. We've made submissions, and other groups have made submissions, on mandatory minimum sentences. Our concern is that they run the risk of being unconstitutional and of raising situations that offend the charter.
Of course, sentences must be carefully tailored to both the offender and the offence. This is an historic and long-standing principle of our common law criminal justice system. Mandatory minimum sentences undermine this principle due to their inflexible nature. Injustice may not be the intent of legislation that employs mandatory minimum sentences, but it is quite often the result.
Specifically, in looking at this piece of legislation, which deals with kidnapping of children under the age of 16, if one reviews the case law, it becomes quite clear very quickly that in general most sentences imposed are in excess of five years, the minimum sentence called for in this bill. However, the elimination of judicial discretion can leave open reasonable hypothetical cases that may call for a sentence of less than five years. Because of the inflexible nature of mandatory minimum sentences, our justice system won't be afforded the discretion to deal with those cases.
To keep things brief now, I'm sure we can have a discussion during the question period about what some of those cases may be, and I'd be happy to engage in that conversation.
The bottom line is that there are no flexibilities in mandatory minimum sentence legislation to deal with any unusual cases or mitigating facts that may call for a sentence that is less than the minimum sentence.
Judges are in the best place to impose just sentences. They, of course, are familiar with the facts, familiar with the offender, familiar with the offence, and familiar with the community in which they sit. In Canada, we are blessed with a well-educated and competent judiciary, a judiciary that is incorruptible. In fact, it is a system we have espoused around the world in helping emerging democracies set up their justice systems.
When we remove discretion from judges, it's not just that it can result in unjust and inflexible sentences. I can speak about some of the practical implications of the removal of that discretion.
The first is that discretion is not really removed from the system; it's just shifted. The discretion is shifted to crown attorneys and police forces. Of course, unlike judicial discretion, this discretion is not reviewable and it's not transparent. And it can result in other problems.
Ironically, the problem that can result is twofold.
First, the shift in discretion can result in, as I said, these non-reviewable, discretion-making decisions that can influence or induce pleas from people who may not be guilty of the charge.
Second, when faced with a mandatory minimum sentence and another part of the Criminal Code that may not have a mandatory minimum sentence, there often is a perverse incentive to resolve the charge based on the section of the code that doesn't have a mandatory minimum.
I say it's ironic because at the same time, mandatory minimum sentences also result in an increased number of trials. If the result is all but guaranteed, if guilt is assured, there is very little incentive to resolve early when you know you're facing a mandatory minimum sentence. This of course increases the drain on our court resources, brings witnesses to court, and, in this case, young witnesses whom we may not wish to go through the process of testifying.
Mandatory minimum sentences also have a disproportionate impact on aboriginal groups, in light of the Supreme Court's decision of Gladue and, recently, Ipeelee.
Most importantly—and I say that we agree with the goals of the legislation but not with the mechanism by which those goals are implemented—the evidence is clear that mandatory minimum sentences do not deter offenders. They do not stop the offence from happening, and they don't afford an increased level of protection.
There is an illogical gap between the purposes and the mechanism, a gap that should be bridged by evidence. In the case of mandatory minimum sentences, that evidence shows the contrary—minimum sentences do not have an effect on deterrence.
I would urge this committee to review all the materials. I can speak to some of the practical implications. I can speak to some of the evidence, but there are others who can speak to the criminological evidence. I would urge this committee to review the November 2010 report of the Canadian Centre for Policy Alternatives.
I would urge this committee to look south of the border. Marc Mauer, the executive director of The Sentencing Project, has testified before committees before. Specifically, I would commend you to his testimony of October 28, 2009, before the Senate committee.
I would ask this committee to reflect on the February 6, 2011, letter that was drafted and signed by over 500 leading voices and experts in this area. That dealt specifically with Bill S-10, but it also touched on the mandatory minimum sentence issue.
We have some very eminent criminologists who are close at hand, Anthony Doob, and the studies and the evidence that he can point the committee to.
The bottom line is that mandatory minimum sentences are not effective. They're a simple way of looking at a complex problem and, in my submission, ultimately a myopic way of looking at that problem. Mandatory minimum sentences, and I'm sure it will be pointed out to me, exist in the code, have been introduced by different governments, but this is not an excuse to continue a failed policy that is not justified on the evidence.
If the intent of this bill is to decrease the kidnapping of young people, to protect young people, the evidence shows that mandatory minimum sentences, I submit, will not accomplish that goal. In turn, they will bring the practical side effects that I can testify about: the increase in court time; the perverse incentives; the shift in discretion from judges to crowns and police; and the elimination of judicial discretion, a pillar of our justice system.
I'll turn the floor over to whoever wants to take the first shot, I guess.