IT’S NOT EXACTLY courage-forming to see the ideologues of the Conservative Party of Canada once again lining up for a one-way ticket — this expense to be drawn from the public purses of the provinces and territories — to the fantasy island of Getting Tough on Crime. By my count this is at least the third and maybe the fourth attempt to enact mandatory minimum legislation, previous bills having been put to rest (as often occurs) at the end of a parliamentary session.
I’ve yet to stumble upon a good comprehensive critique of the present omnibus bill, but a good many critics in a position to know have dismissed the principle of the thing. There is the substance of judicial discretion, which as a matter of course will be limited, even nullified, by the imposition of mandatory sentences. Crime bills of the sort now being contemplated shift power from the judges to the prosecution (which of course is the entire point) but under the law of unintended consequences. These laws give defendants an incentive to fight to the end rather than plead guilty or plea bargain: this leads quickly to overloading of the court system and greater numbers of dismissals of cases. The unintended consequence here is that mandatory sentences lead to greater numbers of cases never getting to court, hence more criminals with a get-out-of-prison-free card. One could go on, and if you’ve bothered to read this far you are probably informed yourself. In which case, you are well ahead of the Government.
The dirty little not-so-secret of the mandatory sentencing movement is that it is populated by folks who don’t really care what the research has to say. The Get Tough on Crime Club isn’t interested in the experience of the United States or Australia or Britain, all of whom have been down the road already and know every pothole. And while we’re on that topic, isn’t it time to call out the plain fact that in every jurisdiction where these failed crime policies were imposed the vanguard employed the themes of white suburban hysteria, invoking pot smoking bohunks and dope crazed gangstas. It’s no mere coincidence that the very first mandatory sentencing laws, passed by the US Congress in the 1950s, concerned cannabis possession. How is that War on Drugs going, fellows?
I’ve read the bills and I’ve read the debates, and while the Canadian legislation is less ambitious than the American versions, all appear to derive from the curious assumption that the Senator from Buttecrackk, Texas and the Member of Parliament from Nosebleed, Alberta know better than Justice So-and-so from Such-and-such, whatever the charge and whoever the defendant and whenever in perpetuity the judgement. When I reach for a plain English word to describe the presumptive type of person who thinks he has the answer for all times and all occasions … well, it’s not a very nice word. Nor does it accord well with concepts like ‘deliberation’ or ‘jurisprudence’ or ‘common sense’ or even just ‘using your freaking brain.’ But then I remember again that this Git Tuff fire has always been fueled by blood fears of the marauding dark skinned mob and the next-fix tweaker at the back door and above all else the irrational and groundless middle class fear of marijuana. This is no country for pinheaded studies and CCJA position papers. It’s anecdote land, and everybody there is very afraid and very angry. They may even have some good reasons to be, but that doesn’t justify ignoring the evidence of past and present failure and the yielding of the floor.