Friday, July 6, 2012

Mandatory Minimum Sentence Right for Firearms Trafficking

Christopher Lewis was a small time drug dealer. He sold crack cocaine to an undercover police officer on a few occasions, and then offered to sell him a .45 calibre gun.

As a result Lewis faced a mandatory minimum sentence of three years in jail for firearms trafficking. The mandatory sentence was one of several recently created by the federal government as part of 'tough on crime' justice reforms.

Mandatory minimum sentences have been widely criticised as being inflexible and excessive.

In some cases, for example where growing six marijuana plants leads to a minimum sentence of six months, the criticism may be legitimate. Mandatory minimums are ineffective at deterring drug users from growing their own marijuana; what's more, the harm to society from marijuana use is questionable.

But with regard to firearms trafficking the situation is rather different.

Virtually all the firearms used in organised crime and gang violence are illegally obtained and trafficked. Gun trafficking increases the firepower of criminals and poses a genuine danger to Canadians -- recent shootings in Canadian downtown urban centres make that clear. Once entered into the criminal market, an illegally trafficked firearm can be functional and in constant circulation for decades; it is potentially in the possession of numerous criminals and can be used in many different crimes. The danger created by a single incident of firearms trafficking can last for years.

Moreover firearms trafficking is, unlike most other crimes, driven by economics and is amenable to deterrence. Criminals trafficking firearms are rational, if immoral, businesspeople who can be deterred by a fixed and certain punishment. A stiff mandatory sentence for firearms trafficking is a reasonable and practical way to deter the offence.

All that said, however, the judge sentencing Lewis held the mandatory minimum sentence for firearms trafficking be unconstitutional as breaching the constitutional prohibition on cruel and unusual punishment. As a result, Lewis was sentenced to one year for the firearms trafficking charge.

"Parliament has imposed a minimum penalty that addresses a worst case offence but which grossly overpenalizes the many lesser ways that the same crime can be committed," the judge wrote.


But would reasonable people be outraged at a fixed minimum sentence of three years for firearms trafficking? Is a three year minimum term for illegally trafficking in firearms grossly excessive? Over a decade ago the Supreme Court of Canada said the "cruel and unusual punishment" section of the Charter only applies to a penalty "which is so excessive as to outrage our society's sense of decency". That is a high standard, and the Supreme Court said Courts should be reluctant to "invalidate sentences crafted by legislators."

Gun trafficking is one of those cases where the Courts should have exercised caution. A three year mandatory minimum sentence for firearms trafficking is not cruel and unusual -- it is a sensible and stiff sentence crafted by Parliament and intended to deter a dangerous crime. The Courts should have deferred to the legislators in this case.


Anonymous said...

Okay, well argued, but I thought practicing attorneys weren't supposed / allowed to criticize judge's decisions?

Anonymous said...

Well, some might say...

The Rat said...

The mandatory minimum three years is a paper sentence most of the time, anyway. A person charged with a firearm offense is usually charged with something else and that something else usually carries a potentially longer sentence. In Canada sentences run concurrently so there is no added time for the firearms offense. What this gets to is the deterrent of a mandatory minimum is mitigated by the knowledge a criminal has that the other crimes he's doing will get him more time so he might as well carry that gun because it really makes no difference sentence-wise.

If we really want to change criminal behaviour we should allow consecutive sentencing so that a gang banger might actually think the three extra years for the gun isn't worth it. Without consecutive sentencing we really can't deter gun toting as a way of life for these guys.