Rights Review and the Institutional Roles in Sentencing: A Study of Harper-Era Mandatory Minimum Sentences

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Dell, Brendan

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University of Guelph

Abstract

During the Harper-era (2006 to 2015), the federal government actively pursued a policy agenda focused on tough on crime criminal justice policy. Much of the Harper government’s criminal justice policy focused on sentencing, including the introduction of new and increasing of existing mandatory minimum sentences (MMS). Sentencing policy is unique as it brings together Parliament’s constitutional jurisdiction over sentencing, judicial discretion in sentencing those convicted of crimes, and the standards of Charter-protected legal rights of the criminal defendant. Existing literature on MMS criticizes these sentencing provisions for being vulnerable to Charter challenges, particularly under s. 12 of the Charter. Through the analysis of the parliamentary debates and committee hearings of the policymaking process for Harper government enacted MMS, and the subsequent legal decisions of these provisions being challenged in court on Charter standards, this study examines the role that the Charter played in the policymaking process of Harper government enacted MMS, how these policies have fared in Canadian courts, and the institutional roles in sentencing. This project finds that Parliament’s role in rights review is weak due to the strength of the executive. Additionally, courts have found these laws unconstitutional at a significantly higher rate than previous decades. Finally, despite the distinctive roles each institution has in sentencing, the results indicate a lack of respect for these roles from the legislature and the judiciary.

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Keywords

Charter rights, Mandatory minimum sentences, Harper government, Sentencing, Rights review, Courts and legislature

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