Why the Liberals took the long road to sentencing reform

(Evan Mitsui/CBC - image credit)

Shortly after tabling legislation to repeal a number of mandatory minimum sentences — and to allow for more conditional sentences for offenders who don't pose a threat to the public — Justice Minister David Lametti declared that the Liberal government was "turning the page on a failed Conservative criminal justice policy."

Turning a page on Conservative-era justice policy is no insignificant step, even if it took the Liberals five and a half years to take it. Still, there are other pages that remain unturned.

For the nine years they were in office, Stephen Harper's Conservatives were keen to appear "tough" on crime — perhaps more keen than any federal government in recent history. At the centre of that push was the creation and enhancement of mandatory minimum sentencing provisions.

In 2004, before the Harper government came to office, 24 federal offences were subject to mandatory minimum sentences. By 2015, the number of offences that carried mandatory minimums had tripled to 72.

Lametti's office says the new bill will reduce that number by 20 offences, largely related to drugs and firearms.

Poor policy, good politics?

The emotional appeal of getting tough on crime is obvious and mandatory minimum penalties might reassure those Canadians who believe the justice system is too lenient.

But as the Harper government expanded the use of mandatory minimums, experts in justice policy protested that such sentencing guidelines had not been shown to actually deter crime. The Conservatives carried on undaunted.

While mandatory minimums are not likely to actually reduce crime, they are likely to result in disproportionate punishments and send people to prison who could safely and more productively be dealt with through other means. Mandatory minimums also have been blamed for over-burdening the court system by reducing the ability to negotiate plea deals.

Long before Thursday, the courts already had started to tear pages out of the Harper government's legislative legacy. The Supreme Court struck down two mandatory minimum sentences for gun-related offences in 2015 and then one mandatory minimum related to a drug offense in 2016. Lower courts in different provinces also have ruled against a number of other sentencing edicts.

A slow march to sentencing reform

"Yes, they're turning the page," said Lisa Kerr, a law professor at Queen's University who has written about the Harper government's justice policies. "Did they have to turn the page at this point? Really, they did. The courts really made this legislative reform necessary."

While the courts were raising objections, the Trudeau government seemed interested in pursuing a comprehensive rewrite of the justice regime the Harper Conservatives left behind — at least briefly. The mandate letter issued to Jody-Wilson Raybould, Trudeau's first justice minister, asked her to "conduct a review of the changes in our criminal justice system and sentencing reforms over the past decade."

In 2017, Wilson-Raybould said that a "revisiting" of mandatory minimums would be "coming in the very near future." But that didn't happen.

Though the exact details are difficult to pin down, it seems that Wilson-Raybould and the rest of the government could not agree on how exactly to proceed. A report on the government's consultations, issued several months after Wilson-Raybould was replaced by Lametti, acknowledged a consensus that further sentence reforming was necessary. But the mandate letter issued to Lametti in December 2019 referred only to increasing the use of drug treatment courts.

George Floyd and BLM

But then, last summer, the scourge of systemic racism came to the fore politically — driven by the protests that followed the killing of George Floyd in Minneapolis. As part of the Trudeau government's response, Lametti was charged with taking "action to address systemic inequities in the criminal justice system."

On that note, after announcing a turning of the page on Thursday, Lametti spoke at length about how mandatory minimum sentences contribute to a system that disproportionately punishes Black Canadians and Indigenous peoples. The minister also thanked Liberal MP Greg Fergus, chair of the parliamentary black caucus.

Maybe the Trudeau government eventually would have gotten back to dealing with justice reform without the Black Lives Matter movement pushing it. But the movement — and the truths it held up to the light — seem to have given the Liberals an opening to do so now.

"Overall, these reforms would make our system of sentencing law and policy much more coherent and humane," Kerr said.

Unintended consequences

The political risks are likely very real, though. If you're not obviously getting "tough" on crime, you're susceptible to the charge of being "soft" on crime. As Kerr notes, the political challenge of explaining a different approach might account for why the Liberals took this long to get here.

A justice department survey in 2017 suggested that Canadians want judges to have the discretion to consider the facts of a particular case. But public attention tends to focus on cases where the punishment does not seem to match the seriousness of the crime. And any government that removes a mandatory minimum sentence presumably has to worry about being blamed for any unintended consequences that result down the road.

At the same time, reformers will protest that the Liberals have not gone nearly far enough; eliminating 20 mandatory minimums still leaves 52 on the books. Further court rulings may compel the government to repeal other sentences.

Sen. Kim Pate, who is sponsoring legislation that would give judges the discretion to disregard any mandatory minimum provision, said in a statement on Thursday that the government had "stopped short of taking the kinds of bold steps we need right now."

Beyond the imposition of mandatory minimums, the Harper government also made other controversial changes the Liberals have yet to reverse. The Conservatives made those who have been convicted of a crime wait longer and pay more to apply for a pardon. It abolished the "faint hope" clause for those serving life sentences.

Kerr suggests the Liberals could also revisit the Conservative decision to eliminate "accelerated parole," which allowed non-violent, first-time offenders to get out of prison earlier.

There are likely few, if any, votes to be won by tackling such issues. But a total reversal of Conservative crime policy would require taking a few more political risks.