POLS 4050 Lecture Notes - Lecture 5: Psalm 51, United States Sentencing Commission, Regression Analysis
23 Feb 2017
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Week 5: Limiting Judicial Discretion I
A More Lasting Comfort? The Politics of Minimum Sentences, the Rule of Law and
R v. Ferguson – Berger, 2009
- There have been fixed penalties for almost all felonies since the beginning of
common law
o Punishment was death by hanging
o But this introduced excessive uniformity, multiple murderer received
the same punishment as the man who stole two shillings
o Got around the MM with the Benefit of the Clergy; would be punished
by the Church instead of under the laws of England
▪ Used to mitigate the harshness of the sentencing regime
▪ By the 14th and 15th centuries whether one could read became
the only criterion for determining if one was clergy and thus
not subject to ordinary law
▪ The verse they were asked to read was standardized though,
it was always verse 1 of psalm 51 (could be memorized)
- SCC established one way of getting around unjust MM’s and that was positing
reasonable hypotheticals to demonstrate a law is cruel and unusual
o Limited to hypotheticals that could commonly arise in day to day life
- R v Ferguson in 2008 the SCC put an end to constitutional exemptions
o Said the only remedy available in such cases is the declaration of
invalidity pursuant to section 52(1)
o Some lamented the loss of a workable solution to the problem of
exceptional cases
o The message behind this case though was a call to Parliament to
improve the substance of the law
- Bill C-15 imposed a minimum sentence of 2 years for anyone trafficking in
drugs in or around any place usually frequented by those under 18
o Was a political response to a bunch of gang based crimes in BC’s lower
Mainland
find more resources at oneclass.com
find more resources at oneclass.com
o Government is taking necessary steps to crack down on crime and
ensure the safety and security of our neighborhoods
- But MM do not make our communities safer
o US experience shows it just leads to over-incarceration
o Deepens racial and gender inequities
- But they still provide a neat political message
o Government views these crimes as very serious, can win them votes
o When the public mood is fear and risk opposing politicians will find
little appeal in challenging a government on the wisdom of decisive
penal policy
- MM can incarcerate those who otherwise would have received a non-
custodial sentence, increases the overcrowding of prisons
o Mean education and rehabilitation programs are less available to
inmates
- MM’s can also invite the Evasion by justice system officials may refuse to
proceed with certain charges in order to avoid disproportionate sentences
- Poses issues for Aboriginal Offenders
- Minimum sentences purpose to know in advance the floor of proportionality
for a given offence
o But life is usually more complex than one size fits all
- Ferguson was an RCMP officer who shot a detainee in the stomach during a
struggle and then fatally shot him in the head 3 seconds later
o CC imposes a sentence of 4 years for manslaughter with a firearm
o Argued for a constitutional exemption
o Court found that 4 years did not constitute cruel and unusual
punishment in this case and decided that constitutional exemptions
could no longer be used when MM were found cruel and unusual
▪ Exemptions go against Parliament’s intent in creating MM in
the first place which is to limit judicial discretion
find more resources at oneclass.com
find more resources at oneclass.com
▪ Section 24(1) is confined to remedying unconstitutional acts by
government whereas laws must be dealt with, with section
52(1)
- Ferguson does not affect reasonable hypotheticals
- Ferguson also confirms that an accused can challenge a minimum sentence
on the basis of the facts of his or her own case
- Ferguson shows us that over-inclusive laws should not be left on the books
o Mandated by section 52 that it must be struck down
- Courts are equipped with the constitutionally appropriate tools to push
Parliament to exercise its constitutional role of considering carefully the
substantive fairness of the laws it creates
o Striking down laws provides clear guidance for Parliament
- Use of exemptions allowed politicians to remain untroubled in their love of
MM
- SCC is directing judges that their duty is to provide an effective remedy when
the case before them shows that a MM will produce cruel and unusual
punishment
o They should not hesitate to strike down a law
- But it may be difficult for judges to justify striking down an otherwise fair
law due to an exceptional case
A Defence of Mandatory Minimum Sentences – Caylor & Beaulne, 2014
- Since Harper’s Bill C-2 in 2008 some judges have become progressively more
inventive, bold and arbitrary in operating outside the rule of law
o Refusing to apply MM and Mandatory victim fine surcharges
- Judicial independence is a cornerstone of our constitutional democracy yet
judges who ignore the rule or law and make decisions according to their own
personal views assault the justice system
- Harpers Safe Streets and Communities Act (2012), Tackling Contraband
Tobacco Act (2013) and Tougher Penalties for Child Predators Act (2014)
o All added mandatory penalties to the CC
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
The politics of minimum sentences, the rule of law and. Mainland: (cid:498)government is taking necessary steps to crack down on crime and ensure the safety and security of our neighborhoods(cid:499) But mm do not make our communities safer: us experience shows it just leads to over-incarceration, deepens racial and gender inequities. Mm can incarcerate those who otherwise would have received a non- custodial sentence, increases the overcrowding of prisons: mean education and rehabilitation programs are less available to inmates. Mm"s can also invite the (cid:498)evasion by justice system officials(cid:499) may refuse to proceed with certain charges in order to avoid disproportionate sentences. Minimum sentences purpose to know in advance the floor of proportionality for a given offence: but life is usually more complex than one size fits all. Ferguson also confirms that an accused can challenge a minimum sentence on the basis of the facts of his or her own case.
