Canada’s new mandatory minimum sentences for drug offenders are based on “very bad criminal law policy” and constitute a threat to public health as well as the concept of judicial proportionality, former Supreme Court of Canada Justice Louise Arbour says.
The law should, and almost certainly will, face a justifiable constitutional challenge, Arbour adds of the omnibus crime legislation, Bill C-10, which received royal assent in March (www.parl.gc.ca/HousePublications/Publication.aspx?Docid=5465759&file=4).
Forcing judges to impose minimum sentences for drug offences endangers the legal precept of proportionality, under which judges must tailor the level of punishment to the severity of the crime, adds the former United Nations high commissioner for human rights and former chief prosecutor of the International Criminal Tribunals for Rwanda and the former Yugoslavia.
“Each case is very contextual,” argues Arbour, who served on the Supreme Court from 1999–2004 and is currently president and CEO of the International Crisis Group, a nonprofit organization which advises governments on means of avoiding armed conflicts. “Some people commit crimes under tremendous pressure. … A smart sentencing policy leaves it to judges to decide.”
Arbour also warns that the stiffened laws — particularly for relatively petty cannabis offences — may backfire by generating disrespect for drug control measures and promoting noncompliance. “When the laws are too harsh it’s like a river hits the wall,” she says.
When it comes to cannabis, Canadian legislation has long suffered from a “disconnect” with social realities, as polls show the vast majority of Canadians support decriminalization of marijuana, while legislators seem bent on introducing laws to prohibit its use, says Arbour, who in 2003 wrote a dissenting Supreme Court opinion that argued imprisonment for marijuana use is not justified on the grounds that it constitutes a risk to public health, as the harm caused is only to the user, not others (http://scc.lexum.org/en/2003/2003scc74/2003scc74.html).
– Read the entire article at Canadian Medical Association Journal.