Canada has tough drunk-driving laws, and rightly so. Police caught 90,000 impaired drivers in 2011, and Mothers Against Drunk Driving estimates that impaired driving claims 1,250 or more lives a year. Given this scourge, judges need the power to deal harshly with drunk drivers, and they have it.

Section 255 (3) of the Criminal Code provides for life in prison for impaired driving causing death. That’s about as harsh as it gets. Causing bodily harm can net 10 years.

Yet Prime Minister Stephen Harper’s Conservative government has never met a law it didn’t want to toughen, whether it needs tweaking or not, and the drunk-driving law is no exception. There was Justice Minister Peter MacKay on Wednesday mulling about rewriting the law to impose yet more mandatory minimum sentences, including for drunk driving causing death or injury.

The obtuseness of this is stunning, coming a day after the Ontario Court of Appeal, one of the highest and most respected courts in the land, ruled that Ottawa’s mandatory minimum law for unlawful gun possession constitutes a “cruel and unusual punishment” and is an affront to the Constitution. The Tories brought in a three-year mandatory minimum for a first gun offence and five years for repeat offences in their 2008 omnibus crime bill.

That law could see people imprisoned for years for what might amount to a licence violation, Justice David Doherty reasoned in a case involving Hussein Nur, who carried a loaded handgun outside a Toronto community centre. In theory, somebody who keeps a licenced, unloaded, safely stored handgun and ammo at their cottage when the licence requires it to be at their home would be snagged in the three-year minimum net, just as someone would be if he were on a street corner with an illegal, loaded handgun in his back pocket intending to use as he sees fit. In the case of the cottager, there would be a “cavernous disconnect” between the crime and the punishment, Doherty found.

This illustrates the risk the Conservative government runs in any bid to force judges to impose what could turn out to be grossly disproportionate mandatory minimum sentences. Stripping judges of the ability to exercise discretion and common sense, whether on gun or drunk-driving offences, can only bring the law and the justice system into disrepute.

Few Canadians, and few judges, are inclined to go easy on gun-toting criminals and drunk drivers who kill. In Nur’s case, the appeals panel ruled that he deserved three years.

But the Harper government risks offending the Charter of Rights when it seeks to tie judges’ hands with mandatory minimums. They must have at least some discretion to apply the law sensibly. If the justice minister can’t get that, he should get another job.

Source: The Toronto Star


Last updated on: 2013-11-24 | Link to this post