Mandatory Minimum Sentences: R. V. Latimer

The concept of minimum sentences for certain criminal charges, though always controversial, has remained a staple of Canadian Criminal Justice throughout the decades. In fact, under the current Canadian Conservative government lead by Stephan Harper, mandatory minimums are seeing an increase in popularity amongst policy makers as a response to crime. Mandatory minimums are often part of the ‘tough on crime’ ideology – which often garners public support (Borovoy). However, public opinion is largely just that – opinion, with little true knowledge of the effectiveness of mandatory minimums or their implications for ethical criminal justice operations. Within the legal and criminology fields there exists more of a critical view of mandatory minimums

based on actual evidence as opposed to personal ideology. On one hand, mandatory minimums help to establish a consensus amongst judges for sentencing. The Criminal Code of Canada outlines a multitude of goals and principles associated with sentencing; often this can lead to a disparity in sentences for similar offenses as a result of judicial discretion. However, on the other hand, although the limiting of judges’ discretion does help create a kind of continuity, the handcuffing of judges in this manner has also produced criticism. The primary issue is that mandatory minimums eliminate the potential for mitigating factors in sentencing, focusing solely on the textbook definition of the law and criminal conduct while ignoring potentially important context. This criticism may be possible to overlook if it were effective as a crime prevention method. Unfortunately, mandatory minimums and harsh sentencing in general has been proven to be a poor deterrent of criminal activity. In short, though there are potential benefits to mandatory sentencing statutes, there is much evidence to suggest that they may ultimately be unethical, due to their restricting of judicial discretion that is not balanced out by effectiveness in deterrence; it is for this reason that their use in the justice system should be limited.
On the subject of the restricting of judicial discretion, there is one case that has become the poster child for the abolishment of mandatory minimum sentences: R.

v Latimer. A farmer from the Canadian west, Robert Latimer was charged and convicted of murdering his daughter, Tracy Latimer. Given that information alone, obviously anyone would not disagree that Latimer is a murderer who deserves a harsh punishment. Under the policy of mandatory minimums, that is how it forced to be considered. However, as evidenced by the fact that the case made its way up to the Supreme Court of Canada, there were more factors at play than a simple act alone (Gabor, 2001). Tracy was severely disabled, being completely unable to function on her own, to the point of being confined to her bed and needing to be spoon fed. Latimer claimed that he did not kill his daughter out of malice, but rather out of compassion and a desire to end her suffering; needless to say her quality of life was very poor. He was convicted of second degree murder, but the unorthodox part of the trial came after that, at sentencing. While there exists some dissent as to the validity of his defence, mainly that Latimer did not do enough to prove that Tracy wanted to die or that she was in enough pain for it to be considering a compassionate act (Sampson, 2001), the judge agreed with his ‘mercy killing’ defence: Latimer was granted a rare constitutional exemption as a workaround for the mandatory minimum. Latimer received

a one year sentence as opposed to life with ten years before possibility of parole. However, this decision was overturned by the provincial court of appeals, who bound him to the mandatory minimum. This decision was later upheld by the Supreme Court (Grant, 2001).
Murder is obviously a very serious crime and therefore the Latimer case is a very extreme example, the fact that it went all the way to the Supreme Court exemplifies one of the main issues with mandatory minimums: the taking away of judges’ discretion. While cases such as Latimer’s are rare, it nevertheless is problematic that judges have no option to consider context. Consider an abusive relationship in which the husband regularly physically harms his wife. After a period of time, she decides that she cannot bear it any longer, and she plots to kill him. Any form of premeditated murder is subject to life in prison, but in a situation such as that, so long as the abused individual can show that they were in constant danger, they are arguably justified in their killing of their abuser (Gabor, 2001).
If mandatory minimums do have one place in the justice system, it is for the most severe crimes such as rape and murder. Setting aside the goal of deterrence, in accordance with the Criminal Code of Canada Section 718 Subsection A, one of the goals of sentencing is to denounce unlawful conduct. Retribution has its detractors but for crimes so severe, it is almost definitively a societal consensus that offenders to be punished for their wrongness. However, even though mandatory minimums should be preserved for said crimes, there should be exceptions given to judges to allow them to account for mitigating factors due to the fact that cases like the hypothetical above and Latimer’s exist. Such provisions in legislature are already present in other countries such as the UK. In the English Powers of Criminal Courts act of 2000, section 111(2) holds that the third conviction for domestic burglary carries a mandatory minimum of three years. However, it also states that there is an exception “[…] where the court is of the opinion that there are particular circumstances which (a) relate to any of the offenses or to the offender; and (b) would make it unjust to do so in all the circumstances” (Roberts, 2001. 308). To apply this type of policy to the previous cases, while ostensibly the accused would have to prove that their act was worthy of consideration under such a provision, just giving judges the option to sidestep mandatory minimums would be a step in the right direction.
If one were to weigh the benefits and downfalls of mandatory minimums on a utilitarian scale, it is possible that a deterrent value of mandatory minimums could justify their lack of flexibility.

Unfortunately, evidence has shown that mandatory minimums and severity of punishment as a whole is sorely ineffective as a deterrent for crime. The idea of punishment as a deterrent hinges on the perception of criminals as rational actors who, before committing a deviant act, weigh the potential costs and benefits logically (Renke, 2001). Crime is not always the product of careful reflection, many instances are snap judgements which occur too fast to consider the outcomes. In addition, deterrence assumes that criminals are aware of the law and the punishments which will come as a result of crime. As has been already mentioned, the public is largely unaware of the finer details of the criminal justice system, criminals included. To compound this issue, those who are most unaware and uneducated about the law are those of low socio-economic status, which puts them at an increased risk of offending. As Renke notes, based on a meta-analysis of other literature regarding deterrence, the perceived fairness of the law and the criminal justice system factors into whether or not policy can be a deterrent. If an individual or group believes the system to be unfairly biased against them then the authority of the law holds less deterrent weight (2001). Considering that those of low

socioeconomic status groups often find themselves the targets of institutional bias and are often uneducated on the law, it forms a type of perfect storm in regards to the lack of deterrence. Of course, the lower class are not the only class that commits crimes, but importantly the vast majority of mandatory minimums are aimed at violent and drug offenses, not white collar crime. Due to this interaction between mandatory minimums and the social reality of those who often find themselves facing that type of punishment, the deterrence value is especially low.
Why is it, then, that mandatory minimums and the idea of severe punishment as deterrence continue to be pushed into Canadian legislature despite convincing arguments against them? The answer is, of course, politics and ideology. Again, the voting public is largely less educated on the justice system, but a “tough on crime” platform is an excellent soundbite that the people will like. Politicians are afraid to challenge mandatory minimums because they don’t want to appear soft on crime (Crutcher, 2001; Doob and Cesaroni, 2001). It is very easy for tough on crime ideology to sway individuals because the incapacitating of offenders, separating them from society, inherently is associated with stopping crime. After all – it is true that an offender locked up cannot commit a crime. However, this is a very shallow approach that does nothing to combat recidivism or to deter crime from occurring in the first place. Additionally, incapacitation itself may not even be accomplished in all applicable cases because even within the justice system there may be those who think that a mandatory minimum is too severe, that it violates the principle of proportionality. As a result, police may forgo arresting an offender if they will be facing a mandatory minimum, and prosecutors may lay a lesser charge. Therefore, even the goal of putting criminals away has a weakness (Jacobs and Piquero, 2013).
Putting together all the information about mandatory minimums, the conclusion is that this type of sentencing should be limited to punishing the most severe of crimes. However, there are types of extenuating circumstances such as the case of Robert Latimer. In such cases, the retributive goals of mandatory minimums work against the application of fair justice because of their inherent inflexibility. For this reason, there should be exception provisions to allow for causes where the act in question is not considered to be as morally impermissible as the average murder case. In regards to lesser crimes, mandatory minimums have been shown to be ultimately ineffectual and often times violating proportionality. Even incapacitation, an area of crime control that mandatory sentencing presumably should succeed in, can be compromised if police or prosecutors believe that inflicting the mandatory minimum would be unfair. To top it off, contrary to popular political ideology, deterrence is not achieved through severe punishments for a multitude of factors – thus it fails what is considered to be its primary objective. As has been noted by scholars, certainty of apprehension is a more effective deterrent than severity of punishment (Jacobs and Piquero, 2013). Future endeavours into policy making could focus on making potential criminals believe they are more likely to be caught. In the meantime, the use of mandatory minimums for should be reconsidered for all by the most severe of crimes, and tweaked to allow for exceptions in extenuating circtumstances in those cases.