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CRIME & PUNISHMENT – End mandatory minimum sentences for murder

Indigenous women are vastly over-represented among those sentenced to life

By DEBRA PARKES
University of British Columbia

WHAT’S WRONG with mandatory minimum sentences?

Plenty. Especially when it comes to murder.

Debra Parkes.

High-profile serial murderers come to mind when Canadians think of murder convictions: Bernardo, Olson, Pickton.

Few turn their minds to the 18-year-old Indigenous teen who kills her abusive drug dealer. Such a situation can amount to murder in our law.

When it does, she’s caught within the net of our sweeping mandatory sentencing regime. A judge has no choice but to give her a life sentence with no possibility of parole for at least 10 years.

A mandatory sentence for murder paints a wide variety of people and circumstances with the same brush. Every adult convicted of murder in this country is sentencedtolifeimprisonmentwith a mandatory period of parole ineligibility of 25 years for first-degree murder and between 10 and 25 years for all other murders.

The Department of Justice recently release a studyof Canadians that shows strong opposition to mandatory minimum sentences. More that 60 per cent of survey respondents thought that these sentences produced unfairness when applied to realistic case scenarios.

In the absence of legislative action by the current Liberal government to make good on its commitment to end these sentences, independent Sen. Kim Pate has introducedBillS-251, which provides for judicial discretion to depart from a mandatory sentence where it would be just to do so. That bill will be debated when Parliament resumes later this month – and it includes the sentence most in need of reform: the mandatory life sentence for murder.

Canada’s murder sentencing law, already harsh by international standards, was made even more punitive under the former Conservative government. It passed a law making parole ineligibility periods consecutive to one another, leading to life-without-parole sentences. It also abolished the “faint-hope clause,” which allowed for a 15-year review and was key to the mandatory life sentence being found constitutional in the early years of the Charter of Rights and Freedoms. These changes raise important constitutional questions that are beginningtocomebeforethecourts.

Our law assumes that every person convicted of murder needs to be under correctional supervision for their natural life. The evidence shows us otherwise. Most murders are committed by the relatively young, for whom the prospects of change and rehabilitation are great. People convicted of murder are also morelikelythanotherprisonerstobeoffence-freeonparole.

Indigenous women are vastly overrepresented among those sentenced to life in Canada. From 2005 to 2015, Indigenous women comprised 44 per cent of new women lifers, and this overrepresentation is even more pronounced than it is for Indigenous men. In2012-2013,forexample,sixoutoftheeightwomensentencedtolifeimprisonmentinCanadawereIndigenous.

The 18-year-old Indigenous teen who kills her abusive drug dealer may be released on parole 10 or 15 years later (although as an Indigenous woman she is lesslikelythanotherprisonerstogetparolewhenshe’seligible).

However, even if released, her sentence never ends. She will be on parole when she is 60 years old and she can be returned to prison indefinitely for doing anything her parole officer considers related to her “crime cycle.”

Canadians often look south to smugly distinguish our system from the excesses of America’s death penalty, “three-strikes” laws and young people serving life-without-parole sentences. However, we could more productively learn from the many jurisdictions in Europe, Australia and elsewhere that don’t tie the hands of their judges in sentencing for our most serious offence. They allow for long sentences, including life, where necessary, but they let the judge tailor the sanction to the crime and to the individual.

Women who face murder charges for killing abusive partners, for example, toooftenpleadguiltytomanslaughterevenwhentheyhaveaviableself-defenceclaim. To make matters worse, the law of homicide has been distorted by the mandatory minimum sentence for murder. Juries tie themselves in knots to understand and apply defences such as intoxication and provocation that are specific to murder and have developed complex and arguably unprincipled rules.

In hismandatelettertoJusticeMinisterJodyWilson-Raybould, Prime Minister Justin Trudeau tasked her with ensuring “a reasonable, evidence-based approach” to her review of mandatory minimum sentences. The evidence is in.

Theproblemsandunfairnessinherentinmandatoryminimumsentences– the failure to deter crime, the excessive cost in human and fiscal terms, the exacerbation of systemic discrimination against Indigenous people, the pressure to plead guilty when innocent, and more – are all the more acute in murder sentencing where the stakes are so high.

It’s time to act on this evidence and abolish all mandatory minimum sentences, including for our most serious offence. Canadians will support such a change and justice demands it.

Debra Parkes is professor and chair in Feminist Legal Studies at the Peter A. Allard School of Law, University of British Columbia, and a contributor with EvidenceNetwork.ca, which is based at the University of Winnipeg.

© Troy Media

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About Mel Rothenburger (6244 Articles)
ArmchairMayor.ca is a forum about Kamloops and the world. It has more than one million views. Mel Rothenburger is the former Editor of The Daily News in Kamloops, B.C. (retiring in 2012), and past mayor of Kamloops (1999-2005). At ArmchairMayor.ca he is the publisher, editor, news editor, city editor, reporter, webmaster, and just about anything else you can think of. He is grateful for the contributions of several local columnists. This blog doesn't require a subscription but gratefully accepts donations to help defray costs.

3 Comments on CRIME & PUNISHMENT – End mandatory minimum sentences for murder

  1. Don Drysdale // October 7, 2018 at 3:04 PM // Reply

    Oh please give me a break. There are really very few murders charges laid in Canada. Most end up being manslaughter, or 2nd degree and your argument falls apart. Our Justice system is far more supportive of the criminals than the victims. You say Canadians will support a change and justice demands it. Not buying that B/S and the Jordan decision tells me how much justice is actually in our Hug-A-Thug justice system when offenders walk and victims never see justice. There are far more lenient sentences now because most prosecutors refuse to charge 1st murder. Murder is murder, that is why most charges end up manslaughter because of soft on crime justice that you want to make even softer.

  2. David Johnson // October 7, 2018 at 1:41 PM // Reply

    OK, I’m somewhere in the middle of the road with this one.

    Lets keep in mind some history. Before mandatory minimums for murder, a crafty defence lawyer could get 2 years for their client, and their out in 9 months for good behaviour. This was the reality.

    This was the courtroom precedents that judges had to deal with; A short term sentence works for one guy because of extenuating, and another lawyer in a different case uses that precedence to get his guy off early.

    Mandatory minimums broke that chain, and sentences increased to an amount that most Canadians felt were reasonable.

    The problem (as was well detailed in this piece) is that successive governments buggered it up by pretty much removing any latitude that the judge might want to impose on a case to lessen a sentence due to the specifics of a case.

    Personally, I think strong guidelines need to be in place for sentencing standards, and counsel on either side can’t argue much beyond such guidelines (ie; not much less nor much more time than allowed), but a judge must be given latitude to judge the case, and drop sentence time, if he or she feels that it is warranted.

    How you legislate that … I would have no idea.

  3. My cousin was sentenced to 10 years for murdering his step-father for raping his 12 year old sister. My cousin committed suicide later after serving his 10 years. Maybe things would have been different for him if the law had of been more forgiving to him than the monster. He should have been given a medal for getting rid of the awful man.

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