Straight Talk
LORRIE GOLDSTEIN - Mandatory three-year minimum sentence sounds worse than it is

Credits: REUTERS/JIM URQUHART

LORRIE GOLDSTEIN | QMI AGENCY

TORONTO - It's like something out of Alice in Wonderland.

While three boys, aged 15, 15 and nine have been shot to death in the GTA in recent weeks, the big court battle looming in Ontario is over whether Ottawa's legislation imposing a mandatory, three-year minimum sentence for possessing a loaded, prohibited firearm is constitutional.

All the usual suspects, including a couple of Ontario judges, defence lawyers, soft-on-crime academics, prisoners' rights and civil liberties groups, have declared the federal Conservatives' mandatory minimum legislation unconstitutional, unfair, cruel, abhorrent, outrageous and intolerable.

Never mind that, as Sun Media's legal affairs analyst Alan Shanoff has pointed out, this so-called three-year mandatory minimum sentence is subject to parole.

That means that a first-time offender will typically be out on parole in a year, day parole six months before that.

Never mind that the law gives Crowns the option of seeking a minimum sentence of one year (translation, four months in prison) if they believe three years (translation, one year in prison) is too harsh.

Later this month, the Ontario Court of Appeal will consider whether the federal Tory legislation passed in 2008, establishing the three-year mandatory minimum, is constitutional.

The court will rule on the issue after assessing half-a-dozen cases where the law has been applied, including two where judges refused to invoke the three-year mandatory minimum.

They argued it was unconstitutionally harsh and imposed lesser sentences.

In one of those cases, police burst in on a 27-year-old man, dressed in his underwear, who was waving around his cousin's loaded handgun while taking pictures of himself to post on Facebook.

In the other, a 21-year-old cocaine dealer offered to sell a gun to an undercover cop, although he apparently didn't actually have a gun to sell.

In the real world, a three-year "mandatory" sentence (translation, one year in prison) for either of these geniuses might, one hopes, have drilled some sense into them.

On the other hand, let's not kid the troops.

Obviously, a three-year mandatory minimum sentence (translation, one year in prison) isn't going to stop hard-core criminals from gunning people down on our streets.

And the reason isn't that these sentences are too harsh.

It's that they're too lenient once gutted by parole, a problem that isn't confined to sentencing for gun crimes.

For example, someone sentenced to nine years in prison for manslaughter or sexual assault is typically out on parole in three years, and out on day passes within 18 months.

That's justice? It's certainly not justice for the victims.

One of the things we should be doing in the media whenever judges hand down a sentence in the criminal courts is to explain what that sentence means in terms of actual time to be served in prison, assuming the normal rules of parole apply.

That's what makes this ongoing controversy over the Tories' "mandatory three-year minimum sentence" for illegal possession of a loaded, prohibited gun such a farce.

The farce is that we're debating a fantasy - one that critics of the law carefully avoid discussing, for obvious reasons - which is that the vast majority of people sentenced under it aren't going to spend anywhere near three years in prison.

Ultimately, the constitutionality of the Tories' mandatory minimum legislation will be decided by the Supreme Court of Canada.

But until it gets there, let's not pretend that first-time offenders under this law are being jailed for three years. In the real world, they're back walking among us long before that.

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