Comment: The right to know a little more

The Right to Know is a column in the Ottawa Citizen written by a group of lawyers from the Edelson, Clifford D’Angelo Law Firm. The column is said to be aimed at informing the public “on their rights and obligations…under the law”.


In the past I posted a blog (Lack of Knowledge is bad, Imperfect Knowledge may be Worse) on one of the articles written in this column (Meeting the Police: An Informed Citizen won’t be intimidated). A recent article, authored by Solomon Friedman (Judges have broad range of sentencing options), warrants similar comment.


The article, for the most part, is a mundane review of basic sentencing points. At the end of the article, however, Mr Friedman offers the following unusual observation:  


It is discouraging to note, with recently passed mandatory minimum sentences, that judges are increasingly seeing their discretion being limited and access to many of these valuable tools being unfairly curtailed.


Perhaps it is time to rethink this approach and return discretion to those best positioned to exercise it — the sentencing judge, who has heard all the evidence, convicted the offender and can pass a sentence founded in proportionality and restraint.

Mr Friedman’s view that judges’ discretion is being “unfairly curtailed” is peculiar; moreover, it offers the reader no helpful insight into an issue that he suggests warrants some new consideration.


In my view, there is nothing “unfair” about Parliament imposing mandatory minimums. The invitation to “rethink” this approach – one which lies at the heart of our constitutional democracy – is unhelpful and ill-conceived. The following points are illustrative.


First, it is the role of Parliament to make legislative decisions about the criminal law. This includes the imposition of mandatory minimums.


Our constitutional democracy recognizes that this power lies with Parliament. It is neither new nor surprising that Parliament has this power and acts on it. The imposition of mandatory minimums is nothing new. More to the point, the present government (the Conservatives) have been very clear about their “tough on crime” agenda. With this clear agenda they were elected by a majority of those who voted in the last federal election. It is hardly surprising that they decided to create or increase mandatory minimums. This is especially so given the types offences they have targeted: firearm offences, sexual offences involving children and impaired driving.


Second, the process by which Parliament initiates and finalizes its decision to amend the Criminal Code and create or increase mandatory minimums is highly transparent and well structured. Acting within its constitutional powers and as reasonably expected, Parliament followed an entrenched and public process to pass these new laws.


Third, admittedly, sometimes Parliament misses the mark and creates unconstitutional legislation. Fortunately, there is a remedy. Any person impacted by unconstitutional legislation can seek to strike down that legislation as being inconsistent with well recognized and entrenched Charter rights.


Section 12 of the Charter, for example, guarantees that everyone “has the right not to be subjected to any cruel or unusual…punishment”. It is the same judges whose discretion Mr Friedman suggests is being “unfairly curtailed” that make the decision about the constitutional validity of impugned legislation. If indeed, a mandatory minimum is “unfair” – in that it violates a constitutionally protected right – it can and should be struck down.


Mr Friedman suggests that perhaps it is time to “rethink this approach”. What exactly should we rethink – our constitutional democracy? Parliament was elected by the majority of the country. It is entitled to and should make this type of decision.


Clearly Parliament felt – implicitly supported by those who elected them – that certain offences warrant certain minimum sentences; clearly sentences Parliament felt were not being imposed or warranted certainty about their imposition. This is their constitutional prerogative. It is not unfair. In the event Parliament oversteps the Charter there is a remedy. That is fair. That is transparent. There is nothing to rethink.


The public does have a right to know – now they know a little more.