Ottawa – In its intervention before the Supreme Court of Canada in the appeal of R. v. Nur, the Canadian Bar Association (CBA) argues that judges should be able to consider less extreme measures than mandatory minimum sentences (MMS), and calls for the implementation of a so-called “safety valve.”
“The CBA favours a less rigid approach to sentencing than MMS provide – one in which alternatives can be considered to ensure a just result in the individual situation,” says Eric Gottardi, Chair of the CBA’s Criminal Justice Section and pro bono legal counsel in the intervention.
In its factum, the CBA says that MMS have a profound effect on both the fairness of our criminal justice system and society as a whole. “They have a disproportionate impact on persons who are already significantly overrepresented in our prisons, including those with serious mental illness and FASD, or certain populations, like Aboriginal people,” says Eric Gottardi.
The CBA further argues that judicial independence must be retained. “As Canadians, we rely on judges to impose a just sentence after hearing all the facts in the individual case and about the individual offender,” says Eric Gottardi.
The CBA has historically opposed MMS. In a 2011 resolution on Justice in Sentencing, the CBA called for a “safety valve” for offences other than murder. In this instance a safety valve refers to the idea of creating exceptions within the law “where injustice could result by the imposition of a mandatory minimum sentence.” CBA notes that countries similar to Canada that use MMS have implemented some form of safety valve.
The appeal was heard at the Supreme Court of Canada on November 7.
The CBA is dedicated to supporting the rule of law, improvements in the law, and the administration of justice. Some 37,000 lawyers, law teachers, and law students from across Canada are members.