How should society respond to decreasing crime rates? Should we see this as an opportunity to reduce the number of people in our prisons? Or should we find ways to maintain and even increase our prison populations, just as has been done in the United States?
Partly under the influence of misguided drug war policies, partly under lobbying pressure from the private prison industry, partly because of right-wing anti-crime zealots, Americans responded to their declining crime rates by declaring a “war on drugs,” leading to huge increases in prison populations.
This “war” has been ineffective in reducing crime and drug use, but clearly has exacerbated social injustice in American society by disproportionately punishing minorities and the poor. And sending more people to prison means more real criminals on the street in the future, because prisons are schools for crime.
But it seems we have learned nothing from the tragic results of the American efforts to get tough on crime; recent Canadian crime bills are leading us in the same direction. In particular, these bills have drastically increased the number of criminal offences with legislatively specified mandatory minimum sentences. This idea, while it might seem reasonable at first glance, is a pernicious one, because it allows no latitude for judicial discretion and mercy.
The poster case for the need for judicial discretion was the 2009 arrest of Leroy Smickle in Toronto. Smickle, a 30-year-old black man, was doing all right: he had a job, a fiancée and a child. He happened to stay on his own one night at the apartment of his cousin, where he found a loaded handgun. Foolishly, he decided to take some “cool pictures” of himself holding the gun. At that very moment the police, looking for the cousin, broke down the door and charged inside. Smickle immediately dropped the gun, but he was charged under one of our new laws (the 2008 Tackling Violent Crime Act) that specified, for first offences, a minimum of three years in prison for possession of an illegal loaded firearm.
Smickle was charged under the new law and found guilty, and would have then been sent to prison for three years, enough to cause him real harm. We know about the psychological damage caused by extended periods of confinement. We know the likelihood that lengthy incarceration in the presence of criminals will greatly increase the likelihood of a young man turning to a life of crime.
But in a rare instance of judicial defiance of the law, a compassionate and merciful judge, Justice Anne Molloy, simply refused to assign the designated sentence. She cited our Charter of Rights and Freedoms, arguing that such punishment of Smickle would be “cruel and unusual.” This led to a prosecutorial appeal, which was heard by the Ontario Court of Appeal. The chances of a positive outcome did not seem good; appeal courts tend to support strict application of the law. But when the court’s judgment came down on Nov. 12, surprisingly, it upheld Molloy’s decision.
The struggle for justice in this case, and a number of other similar ones, however, is far from over. The case will be appealed to the Supreme Court of Canada, and its record of seeking justice over the letter of the law is not a good one. The Supreme Court’s inclination is to back the legislators, even where justice is at stake. It may well reverse the decision and impose the unconscionable three-year sentence.
New mandatory minimum sentences, however, may do the greatest harm in the area of minor drug offences. The 2012 Safe Streets and Communities Act specifies a number of new minimum sentences for such offences, bringing us more in line with the failed American legislation. We can expect the same result: more people in prison, no decrease in drug use, more people being schooled in crime, more lives ruined.
How can ordinary citizens fight back against such socially harmful legislation? If you find yourself on a jury in a relevant case — where inflexible laws appear to be leading to an injustice — just find the defendant not guilty, whatever the law says. It is your full and unquestioned right to do so. In our courts, your sense of justice trumps the law.
Gary Bauslaugh of Victoria is author of The Secret Power of Juries published by James Lorimer and Co.
