Parliament has been steadily increasing the Criminal Code's arsenal of mandatory minimum sentences. Traditionally, mandatory minimums were reserved for extremely serious matters, such as first degree murder, which carries a mandatory life sentence with no eligibility for parole before 25 years. Not too long ago, Parliament opted to impose mandatory minimums on sexual offences, such as sexual interference. More recently, Parliaments new mandate is bordering on cavalier with its use of mandatory minimums. In fact, upcoming legislation is introducing minimums for many drug offences, even those involving marijuana, a drug which most people see as benign.
There is a distinct tempering of judicial discretion occurring. One Ottawa criminal court Judge remarked, however, that as Parliament increases its use of mandatory minimums, it is also increasing the availability of rehabilitative remands. Thus, if you are subject to a mandatory minimum on a drug charge, and the charge results from a drug addiction, you may avoid the mandatory minimum sentence by opting to complete a rehabilitative drug program. This appears to be Parliaments compromise. Perhaps it is its way of ensuring that the new minimums pass constitutional muster. After all, how can a mandatory minimum be considered cruel and unusual punishment if there is an ability to avoid it by entering into rehab? How these legislative changes withstand constitutional challenges remains to be seen. Unfortunately most Courts dealing with constitutional challenges adopt a case by case fact specific view of the legislation. Thus, precedents of wide application are difficult to come by.
The tough on crime approach is certainly not without its merit; but the layman must be careful of what he wishes for. The tough on crime rhetoric is easy to swallow until you get a call from your son, brother, husband or friend saying: Ive made a mistake and Ive been charged. Can you come bail me out?