In recent months, federal Conservative leader Pierre Poilievre has repeatedly voiced support for discredited “tough on crime” policies that will ultimately fail. In February alone, Poilievre vowed to introduce mandatory minimum penalties (MMPs) for extortion and auto theft offences.
Generally, criminal offences have a range of sentencing options (e.g. release with conditions, community service, fines, restitution orders, parole, “house arrest” or imprisonment) with a maximum penalty set by the law. Judges then determine a fit sentence that reflects the degree of responsibility of the offender and gravity of what they actually did.
Instead, with MMPs, Parliament removes judicial discretion for any sentencing option other than imprisonment and imposes a minimum term of incarceration, regardless of the facts of the case.
As a criminal law professor and advocate for victims of crime, including a time advising former Conservative Prime Minister Stephen Harper, I used to be a proponent of MMPs. But as I’ve learned more about the unintended consequences of MMPs and harshness of imprisonment in my research, including interviews with people who were incarcerated, I’ve become convinced that MMPs are a grave policy failure and cheap politics.
The evidence shows that MMPs are ineffective at reducing crime, may actually increase recidivism, are highly vulnerable to being struck down by the courts as unconstitutional, can increase delays in an overburdened system, and perpetuate systemic racism.
Criminological research has consistently found that harsher sentences have “no effect on the level of crime in society.” Alarmingly, MMPs have also contributed to higher rates of incarceration of Indigenous people and Black Canadians, exacerbating already troubling trends.
In addition, research by Statistics Canada found “no evidence that MMPs have deterred crime; rather, some studies suggest that MMPs can result in overly harsh penalties and disparities, that they increase costs to the criminal justice system as a result of higher levels of incarceration, and that lengthier sentencing may actually increase recidivism.”
In other words, Poilievre’s idea may actually backfire, leading to more crime in the long term.
Supreme Court strikes down MMPs
Poilievre’s MMPs are not a new idea. They’re an old, tired idea, exposing a lack of understanding of evidence-based policies that will actually make us all safer.
In 1987, there were just nine MMPs on the books in Canada. Since 1996, they have proliferated, with the number of MMPs escalating significantly under the Harper government. With the adoption of the Safe Streets and Communities Act in 2012, the number of MMPs in the Criminal Code approached 100.
The Supreme Court of Canada continues to strike down numerous Harper-era MMPs and related tough-on-crime measures for violating the Canadian Charter of Rights and Freedoms, including:
In the 2015 case, R. v. Nur, which concerned mandatory minimum sentences for possessing a prohibited or restricted firearm, the court described MMPs as “a blunt instrument.”
In the 2016 case, R. v. Lloyd, then Chief Justice Beverley McLachlin made this damning observation: “The reality is that mandatory minimum sentences for offences that can be committed in many ways and under many different circumstances by a wide range of people are constitutionally vulnerable because they will almost inevitably catch situations where the prescribed mandatory minimum would require an unconstitutional sentence.”
In R. v. Ndhlovu, a 2022 case concerning mandatory lifetime registration in the national sex offender registry, the court stated that “mandatory registration of those offenders who are not at an increased risk of reoffending does not assist police.”
In the 2023 case, R. v. Hills, a four-year mandatory MMP for discharging a firearm into or at a home was repealed after the appeal was heard, but the Court nevertheless ruled, finding it unconstitutional. The court’s majority opinion stated: “it would shock the conscience of Canadians to learn that an offender can receive four years of imprisonment for firing a paintball gun at a home.”
However, in a companion case in R. v. Hilbach, the Court upheld mandatory minimum sentences for robbery since they were found to be “narrowly defined and limited in scope.” This case is an exception to the clear trend over the last decade of MMPs being struck down as unconstitutional.
Other Harper-era tough-on-crime measures have also been struck down in cases such as R. v. Boudreault and R. v. Bissonnette.
MMPs increase delays in justice system
Despite this raft of MMP losses, Poilievre insists his “legislation is Charter-proof and constitutionally sound.” He’s made similar claims before about other constitutionally suspect proposals.
If history is any judge, Poilievre’s MMPs may not be worth the paper they’re printed on. What’s worse, even if they do pass constitutional muster, they will only exacerbate the existential challenges facing the criminal justice system.
Former Justice Canada lawyer David Daubney cautioned in 2012 about the expansion of MMPs at the time. His words ring true today:
“The proliferation of mandatory minimum sentencing will lead to fewer guilty pleas, significant processing delays, big increases in the number of accused persons awaiting trial in already overcrowded provincial remand facilities and just plain injustice as discretion is moved from judges to prosecutors. There will be many more Charter challenges and acquittals. Canadians will be less safe.”
While MMPs are widely believed to be popular with more conservative voters, there may be cracks among voters on this issue. A 2018 Justice Canada study revealed 90 per cent of Canadians believed that judges should have the flexibility to impose a sentence that is less than the mandatory minimum. Participants described jail as an “inappropriate measure that would likely ‘do more harm than good’ and result in ‘better criminals’, rather than successfully integrating members of society.”
Politicians peddling flawed criminal justice policies like mandatory minimum penalties need to have their ideas publicly called out and confronted.
Prof. Benjamin Perrin is the author of Indictment: The Criminal Justice System on Trial (UTP, 2023)