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opinion

David Butt is a Toronto-based criminal lawyer.

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Last week, the Supreme Court of Canada struck down another mandatory minimum sentence enacted during the poorly labelled tough-on-crime era. But this time the court did not just tinker with one sentencing provision. Instead, the court pronounced the whole mandatory minimum social experiment a failure.

With bland opaqueness typical of judicial prose, the court said mandatory minimum sentences that apply to a "broad array of circumstances … are vulnerable to constitutional challenge." This statement is a velvet-wrapped wrecking ball. Why? Because whenever Parliament writes any sentencing law, it always covers "a broad array of circumstances." For example, robbery can be committed in countless ways. But Parliament did not write countless robbery sentencing provisions. Instead, Parliament wrote just a few that apply across the spectrum of robberies. Supreme Court judges know this. So when they denounce mandatory minimums that apply across a broad array of circumstances, they really mean mandatory minimums as a concept are dead.

Eliminating mandatory minimums will bring two collateral benefits. First, negotiated settlements will increase. Negotiated settlements are better for accused persons and better for society because they bring voluntary acceptance of responsibility by wrongdoers, which enhances rehabilitative prospects, and they save public funds by reducing contested trials. Second, discretionary sentences allow judges to recalibrate penalties to reflect evolving understanding of criminal behaviour.

But, by returning to broader discretion in sentencing, the judiciary is faced with greater responsibility.

The heart of the debate around judicial sentencing discretion is trust. Do we trust judges to impose fitting sentences? The Supreme Court has now said Parliament cannot limit judges' discretion through mandatory minimums. But deference to authority is quite unfashionable these days, so just because the court says we must trust judges does not mean we should. Trust must be earned, repeatedly.

How can judges earn public trust when sentencing? By explaining their decisions in language we can all understand and evaluate. Judges must transcend a problematically resilient tradition of writing for the clique of the initiated, and write instead for the rest of us. It is a democratic moral imperative that decisions by governors be understood by the governed. Judges must embrace journalism's best practices that enlighten wide audiences on serious issues. And bad writers should not become judges: The stakes are too high.

The government has an equally important role in fostering widespread public trust in judicial sentencing by ensuring the appointments process is transparent and demonstrably apolitical. Judges occupy high public office, making decisions deeply affecting peoples' liberty and the quality of community life. Those wielding such enormous power in high public office must both deserve and be seen to deserve the post, which means open, rigorous selection processes. The current process is cultishly secretive, more closely resembling entry into a Victorian gentlemen's private club than the needs of a 21st-century democracy.

Currently, the public cannot know who applies to be a judge and cannot see applicants' qualifications as submitted. The public cannot know who sits on the provincial judicial advisory committees and cannot see them deliberating. These committees give no public reasons for approving or rejecting candidates. Their recommendations flow secretly to cabinet, which appoints judges in secret, with partisan considerations engaged despite every politician's hollow denials. It is an open secret that after a change in government, judgeship aspirants faithful to the incoming political party line up around the block. A

ll of this is wholly incompatible with responsible appointment to a non-partisan and tenured high public office. Judges are no less important public officials than members of Parliament, yet the contrast in the openness of the selection processes for each is dramatic.

Surprisingly, those appointed through this process are usually eminently qualified. But the process legitimizes disquiet about its integrity. So judges face, often wrongly, mistrust because of how they got their jobs.

The demise of mandatory minimum sentences elevates the imperative of trust in judicial decision-making. Now both the government and judges must work, each in different ways, to earn that trust.

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