Fans of arbitrary and inflexible laws are astonished to discover that these laws are arbitrary and inflexible. What is it about the Leroy Smickle case that comes as such a surprise to those who supported the federal Conservatives’ blunderbuss anti crime bill? Zero tolerance means a defendant has no excuse. Mandatory minimums mean a judge has no sentencing options. That’s kind of the way absolutism works.
Smickle is a Toronto man who was discovered in a state of undress holding a handgun in his home when police burst in with a warrant for somebody else. A judge refused to apply the mandated minimum sentence of three years behind bars because she thought it was “unfair” and “outrageous.”
Columnist Lorne Gunter writes, “Those Canadians who favoured the get-tough law when it passed, never imagined it would be implemented so ridiculously.” That’s funny because those of us who opposed aspects of the Tories’ anti-crime initiatives were very vocal about just such a situation. Gunter is absolutely right that a kid who is asked to hold a knapsack he doesn’t know contains a gun does not deserve to be treated like a person who fired a weapon during a bank robbery. But the law was never written with such subtlety in mind.
From the start the crime debate was framed as a dispute between common sense and soft-on-crime types who want to give hardened criminals a hug and a sponge bath. Legitimate complaints from both the Opposition and the Senate were denounced as wilful, partisan obstruction. As then Liberal leader Stéphane Dion (yes these initiatives have been around Parliament that long) wryly pointed out, “Of seven major anti-crime initiatives, my party only supported five.”
The Conservatives were deaf to any criticism of their strategy which is long on jail cells and short on actual crime prevention. When they were warned by criminologists, legal advisors and even members of the Privy Council that minimum sentences and zero tolerance were already a proven failure in the United States, they pressed on. How is it they can now be gobsmacked by the kind of aberration to which those policy options naturally lead?
As Diane Crocker points out in her new book Crime in Canada, thirty years of studies and experience make it clear that “policies that increase the severity of punishment are expensive and have little effect.” Sentences don’t deter crime; the probability of being caught does.
The greatest irony in the wake of Madam Justice Anne Malloy’s defiance of parliamentary law in the Smickle case is the praise some conservatives are heaping on her. Zero tolerance and mandatory minimums were designed precisely to take discretion away from judges who are regarded by conservatives as being part of the liberal plot against a civil society. Judge-made law is viewed by this crowd as an act of sedition. Madam Justice Anne Malloy was the enemy of justice until she became its Joan of Arc.
Either a judge has discretion or they do not. You can’t think an absolutist approach on law and order is a great idea and then say “but in this case….” Unless the government amends its crime legislation there will be more and more cases like Smickle. And you can’t say we weren’t warned.
John Moore is host of Moore in the Morning on NewsTalk 1010 AM Toronto.