Elephants in the Court
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- Published on Saturday, 18 April 2015 06:17
- Written by editor
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A blow to mandatory minimum sentencing
Dear PAOV,
This week, the Supreme Court of Canada delivered an important blow to mandatory minimum sentencing,ruling that the mandatory minimum sentencing scheme for gun offences is unconstitutional. Wednesday's decision contains both good and bad news. On the one hand, the Court acknowledged that:
"Mandatory minimum sentences, by their very nature, have the potential to depart from the principle of proportionality in sentencing...They function as a blunt instrument that may deprive courts of the ability to tailor proportionate sentences..."
On the other hand, while the ruling was an important step towards fairness in sentencing, the Court failed to deal with two of the most important issues relating to mandatory minimum sentencing: race and immigration consequences.
Read more in BCCLA's latest blog post " Elephants in the Court" by Senior Counsel Carmen Cheung
Elephants in the court
In considering the type of offenders who might get caught up in mandatory minimum sentencing schemes like the ones considered in Nur and Charles, the Court failed to take into account factors such as race and immigration consequences for racialized and non-citizen offenders.
For Mr. Nur, and others like him, the fairness of his sentence had everything to do with his immigration status. Under the Immigration and Refugee Protection Act, a sentence of three years makes him ineligible to remain in Canada, and he would be deportable to Somalia – a country he hardly knows, and from which his family fled as refugees.
While the mandatory minimum sentencing scheme for gun offences was struck down as unconstitutional, Mr. Nur's individual sentence was upheld. We don't know yet if he will be deported, but he could be.
What this means is that the Court has given Parliament a roadmap for rewriting this particular mandatory minimum without having to address what is most troubling about it – its grossly disproportionate impact on the vulnerable and the racialized.
So, while there is much to celebrate in this week’s decision, there is still much work left to do to ensure that our criminal justice is fair and just.
Thank you for your support as we continue this fight.
Sincerely,
Carmen Cheung, Senior Counsel
and the BCCLA team
