Justice Minister Rob Nicholson delighted many police officers on Friday (February 27) when he came to Vancouver to announce mandatory minimum sentences for drug traffickers.
It’s part of a criminal-justice bill that the Conservatives have reintroduced before Parliament.
I’m not convinced that this is good public policy, and I base it on the experience of three young people I knew in Victoria during my wilder teenage years.
They went to many of the same parties I attended. They were intelligent, well-spoken, and never violent. But their judgment wasn’t as good as it could have been when they came up with a crazy idea to import cocaine from nearby Washington state on a zodiac dinghy.
They weren’t doing this very long before they were arrested on the docks. At the time, Canada’s Narcotic Control Act carried a mandatory seven-year minimum sentence for importing cocaine.
Their friends were all stunned by the news. These were young men who obtained good grades in school. They weren’t gangsters in the conventional sense of the word. They were ambitious, popular, and respected.
They’ve since gone on to enjoy some success in life, so I’m not going to reveal their names now. One of them had a lawyer who pleaded him guilty to the crime. He received the automatic seven-year mandatory minimum sentence, and spent part of that time in William Head prison.
He later did very well at Simon Fraser University. I recall he went to work in Japan.
The second one didn’t do any time in jail. I saw him in Vancouver a few years later, and he was doing fine.
The third one had a lawyer who wouldn’t let him plead guilty to importing cocaine. He received an 18-month sentence on a lesser charge. I remember visiting him in what was then the Brannen Lake minimum-security correctional centre.
He told me it was an awful experience, and he never wanted to return to jail again. He said people were making booze out of anything they could get their hands on. He had learned his lesson. I saw him a few years later, and he had a respectable job.
None of them should have faced the prospect of a seven-year mandatory minimum sentence for being so stupid and greedy at such a young age.
I believe that after police put handcuffs on them, these three young men had already learned their lesson and were unlikely to repeat this criminal activity.
A few years later in 1987, the Supreme Court of Canada ruled that the seven-year minimum sentence for importing cocaine was unconstitutional.
In R. v. Smith, Canada’s highest court declared that the seven-year minimum sentence for importing cocaine under the Narcotic Control Act violated the Canadian Charter of Rights and Freedoms because it constituted cruel and unusual punishment.
“The court in assessing whether a sentence is grossly disproportionate must consider the gravity of the offence, the personal characteristics of the offender, and the particular circumstances of the case to determine what range of sentences would have been appropriate to punish, rehabilitate, deter or protect society from this particular offender," the judgment stated. “The court must also measure the effect of the sentence, which is not limited to its quantum or duration but includes also its nature and the conditions under which it is applied. The determination of whether the punishment is necessary to achieve a valid penal purpose, whether it is founded on recognized sentencing principles and whether valid alternative punishments exist, are all guidelines, not determinative of themselves, to help assess whether a sentence is grossly disproportionate. Arbitrariness is a minimal factor in determining whether a punishment or treatment is cruel and unusual.”
Nicholson’s new bill features a two-year minimum sentence for growing 500 marijuana plants or more. This ensures that anyone who is convicted has a decent chance of doing time in a federal prison, where inmates are often more brutal. Nicholson and his boss, Prime Minister Stephen Harper, obviously don't think this constitutes cruel and unusual punishment because otherwise, they wouldn't have introduced it.
In addition, Nicholson's bill will double the maximum penalty for running a marijuana grow-op to 14 years.
Drug traffickers who are involved in “organized crime” or if weapons are involved will receive mandatory minimum sentences of one year. But if this activity occurs near a school, that will be doubled to two years.
These punishments aren’t as onerous as the old mandatory minimum seven-year sentences for importing cocaine. But they do seem to disregard the Supreme Court of Canada’s cautionary words from 1987 that that the court can assess whether a sentence is “grossly disproportionate” by examining whether punishment is necessary to achieve a valid penal purpose or whether valid alternative punishments exist.
That's what judges are supposed to consider. But in the Harper era, we've learned, judges are not to be trusted to exercise this discretion. So that's why we're going to get mandatory minimum sentences for growing marijuana in this country, and we can expect that more teenagers are going to rot in federal jails.