OPINION | Removing minimum sentence for sex crime may seem disgusting, but it's actually more just
Lori Fox says mandatory minimum sentences don't do what they're supposed to do
On April 18, the Yukon Court of Appeal removed the one-year mandatory minimum sentence associated with the crime of sexual exploitation, finding it in violation of the Canadian Charter of Rights and Freedoms.
The ruling was sparked by an appeal brought forward by a Yukon man — referred to as "E.O." — who was sentenced in 2018 for the month-long sexual exploitation in 2015 of his then 17-year-old niece.
If your gut reaction to that decision is, like this journalist's, one of incredulous outrage at removing a minimum sentence for such a disgusting crime, your feelings are both understandable and reasonable.
Your gut reaction would also be, like this journalist's was, wrong — mandatory minimum sentences simply do not work, and removing them is a step toward a more just legal system for all.
That's a view shared not only by many judges and legal professionals, but the Canadian public. A 2018 Department of Justice survey found 78 per cent of participants felt judges should have the ability to deliver a sentence of less than the mandatory minimum "where the facts of the case suggest … a lesser sentence might be fair and appropriate."
Michael Spratt, an Ottawa-based defence attorney and co-host of the legal podcast The Docket, says minimum sentencing "has long been the subject of intense scrutiny."
Mandatory minimums remove decision-making power from judges and disproportionately affect "marginalized, racialized, Indigenous groups," which has led to a "disproportionate" number of these populations being held in custody. That's had "damning negative legal consequences," he says.
"The academic evidence … has found that minimum sentences don't deter crime … or reduce crime rates, and they don't make communities safer because individuals who are sentenced on a minimum have a higher rate of re-offense," Spratt says in an interview.
Mandatory minimums deprive the court of the nuance it needs to bring to its decision making, Spratt says. For example, a child could be abducted from a bad situation with one parent by the other, or a child could be abducted for nefarious reasons; a minimum sentence for abduction treats both cases the same.
Spratt says mandatory minimums also work as a "perverse incentive," resulting in more wrongful convictions, and "clog" the court system because accused innocent persons are more likely to take a plea deal to avoid mandatory minimum sentencing, and those who are guilty don't have much incentive to plead as such.
Sexual violence in the #metoo era
Nonetheless, sex crimes are repugnant and bound to elicit deeply emotional responses, especially in the #metoo era, when the subject of sexual violence — and the social and legal systems that permit it — are at the forefront of our cultural consciousness.
For victims of a sex crime, it can feel as if the legal system is already stacked against them and removing minimum sentences can feel like a further crumbling of already weak protections.
A 2018 study by Vancouver-based West Coast Women's Legal Education and Action Fund (LEAF) on barriers to reporting sexual assault found that some women surveyed had "misgivings about the [legal] system — often based on past experiences — [which] contributed to their decision not to report sexual assault to the police."
While Spratt agrees there is room to improve the criminal justice system, he says that's a totally separate legal problem.
He says minimum sentencing has "nothing to do with how safe women are or how many [accused] are acquitted," as they don't actually do anything toward making communities safer or deterring crime.
Moreover, those who are convicted of serious crimes usually receive more than the mandatory minimum anyway, so it's not as if offenders are being let go, he says.
Although E.O.'s appeal resulted in the minimum sentence being struck down in Yukon for his particular crime, his sentence — 15 months in jail plus two years probation — was upheld.
Regardless of the seriousness — or emotional punch — of a crime, minimum sentencing does not do what it's supposed to do, namely justly punishing those who have committed a crime.
Removing minimum sentences ultimately benefits not only the unjustly accused, but everyone, by working toward a more fair, nuanced legal system.