Further, CAEFS notes that the effect of the mandatory minimum sentence for murder in Canada is to produce extraordinarily long sentences of incarceration, by international standards. For example, only just behind the U.S., Canada has the second longest average sentence served for first degree murder among many nations (U.S. 29 years, Canada 28.4 years, next highest is Japan at 21.5 years), and that the average sentence served among these nations is 14.3 years. The abolishment of the mandatory minimum sentence would permit Canada to move away from the U.S. and closer to its other comparators such as England (14.4 years), Australia (14.75 years), and France (15.5 years).

5. Contradictory Effects

Fifth, beyond the immediate and appalling consequences of systemic discrimination and lengthy prison sentences produced by mandatory minimum sentences, there is no hard evidence that these sentences make any positive contribution to reducing “crime”. To the contrary, in some jurisdictions, like Western Australia, it appears that the category of offence to which the mandatory minimum was attached, theft of a motor vehicle, increased by 50 % in the first year after the introduction of the new sentence (Thomson, 2000 at 4). A similar increase in the crime statistics for another category of offences, that of home burglaries, has been reported in the period immediately following enactment of the new three strikes law (Yeats, 1997).

Similarly, the U.S. studies conclude that no reduction in crime levels has been achieved by the various mandatory minimum laws in that jurisdiction (Tonry, 1995). At best, some studies indicate a short term, but no long term deterrence effect from mandatory sentencing laws (Tonry, 1995). And the cost of any reduction in crime in this regard is enormous: a Rand Corporation 1996 study indicates that California’s three strike laws requires an increase from 9-18 % of the state budget being allocated to corrections, which in turn requires a massive 40 % reduction in other social service budgets like education and health, if taxes are not to be increased (Hogg, 1999 at 263).

Mandatory minimums cannot perform the deterrence function that we aspire to here since such sentences can be avoided by different charging practices, by jury nullification, and by the parole process. For example, to the extent that members of the legal profession and public think that the mandatory minimum sentence of life imprisonment is too harsh in cases such as the Latimer decision, public debate, education, and social change can be circumvented by prosecutors who refuse to pursue charges of murder, by juries who refuse to convict, and by a parole process that responds more compassionately to certain types of prisoners.

6. Legal Constraints

Sixth, there are also legal objections to mandatory minimum sentences. As outlined in more detail in the brief presented by the National Association of Women and the Law (NAWL), they raise the spectre of Charter violations. Several Canadian academics have condemned the new mandatory minimum sentence for offences involving firearms as unconstitutional because it offends Charter guarantees such as the right to be free of “cruel and unusual punishment” (s. 12), the right to be free of a punishment that is disproportionate to one’s degree of moral culpability (s. 7), and the right to be free of arbitrary detention (s. 9) (Dumont, 1997; Manson, 1999). In addition, as the preceding analysis has demonstrated, mandatory minimum sentences also violate women’s s. 15 equality rights under the Charter because they have a disparate impact upon women, in part because the inequalities that produce women’s offending are obliterated by mandatory sentencing.