Three laws creating mandatory minimum sentences have now been struck down by the Supreme Court of Canada
The list of criminal laws passed by the Stephen Harper government that have since been struck down by Canadian courts is growing steadily
The trend’s latest casualty came Friday, when the Supreme Court of Canada overturned a 2011 change to the Criminal Code that required sex offenders to be automatically added to the National Sex Offender Registry — a lifelong designation for anyone convicted of two sex offences or more
In a split decision, the court found that the law was over-broad
and cast too wide a net
because it captured offenders who presented a low risk of re-offending
The decision is just the most recent in a long series of court rulings that have undone Harper-era sentencing reforms
The Harper sentencing law legacy has caused many years of litigation at extraordinary public expense, but it is slowly but surely being undone,
Lisa Kerr, a professor of criminal law at Queen’s University, said in an email
Three laws creating mandatory minimum sentences that were passed by Harper’s Conservative government have now been struck down by the Supreme Court, and another 25 have been struck down in various provinces and territories, according to research by Toronto-based lawyer Matthew Oleynik
Taken together, the rulings suggest that Canadian courts are likely to reject future attempts by lawmakers to limit the decision-making power of judges in sentencing, or to enforce blanket approaches to punishment, several criminal and constitutional law experts told CBC
‘One-size-fits-all’ approach
Many of the Harper-era criminal law reforms were contained in three major pieces of legislation: the omnibus Safe Streets and Communities Act in 2012, the Protection of Communities and Exploited Persons Act in 2014 and the Tougher Penalties for Child Predators Act in 2015
These acts, among others, introduced mandatory minimum sentences and otherwise bolstered punishment for a range of criminal offences
Eric Gottardi, a Vancouver-based lawyer and defence attorney, said law and order
policies remain popular with voters — despite research from Canada and the United States suggesting that longer jail terms and harsher penalties do little to reduce crime
Gottardi said he testified at committee hearings during Harper’s time in office to warn lawmakers that the bills might be unconstitutional
The prior government just tried to paint whole classes of people with a broad brush,
Gottardi said. Justice doesn’t have to be a one-size-fits-all kind of approach
Carissima Mathen, a professor of constitutional and criminal law at the University of Ottawa, said blanket rules on sentencing are often just too crude of a tool
But mandatory minimum sentences agreed with the tough on crime
messaging of the government at the time, University of Guelph professor of political science Kate Puddister said in an email
‘A critical shift in the law’
Conservative justice critic Rob Moore questioned the latest Supreme Court decision
Because of the ruling, he said, many people convicted of sexual offences will be exempted from being listed on the registry. He said the original legislation was supported by all parties when it was passed
This is a critical shift in the law and it disproportionately impacts women and children. It must be taken very seriously,
Moore said in an email statement
Other Harper-era crime laws may soon face challenges
The Supreme Court will rule Friday on a case that tests the constitutionality of a law that prevented a judge from allowing a young Indigenous woman to avoid jail by serving a conditional sentence
And the government of Prime Minister Justin Trudeau is pushing back Harper-era sentencing changes as well. Legislation is before the Senate that would eliminate mandatory minimum penalties for 14 firearm and tobacco-related offences and six drug offences
Any mandatory minimum penalty is on difficult footing,
Gottardi said
CBC News
