Most theories of justice hold to the proportionate principle. Even if you believe that the punishment should be severe you likely believe that one sort of offence should be dealt with more harshly than another. This difference in response is generally explained with a claim that the one offense is worse than the other; it is either worst in the sense of morality or damage that is done (not necessarily unrelated issues). Setting a more severe punishment for one offense over another is thus a declaration of values and which values hold precedent.
Considering this, I am truly baffled by the Conservative’s crime bill which establishes a higher mandatory minimum for marijuana production than sexual assault against a child. Could the Conservative government really be saying that they think stopping people from enjoying something they disapprove of is a higher value than protecting children against rape? I don’t believe that they do, but for some reason they are behaving as if they did.
Justice Minister Rob Nicholson was asked to clarify the reasoning behind the mandatory minimums by the Senate Committee that is reviewing the legislation. I think his answers clear something up for me.
As Senate hearings on Bill C-10 opened last week on Parliament Hill, the first question Nicholson faced at the committee hearing concerned the disparity between minimum sentences for pot growers and pedophiles."What's the underlying principle that determines the length of those mandatory minimums?" asked Liberal Sen. Joan Fraser.Nicholson did not provide a direct response."It's important to point out that there's a wide range of discretion that is given to the court to have a look at this, to gauge the seriousness of the individual crime — and again, all of these are despicable," said the minister.
I would like to point out that this bill specifically takes away some of the court’s discretion, but that is a digression. The main problem with his response is that it isn’t actually an answer. If there is some sort of principle behind the setting of the mandatory minimums than why doesn’t the government explain it?
Fraser pressed him on whether there exists "a formula, a grid, a set of guidelines to establish what mandatory minimums would be appropriate in different circumstances?"
"It seems to me that any sexual offence against a child is more serious than growing six pot plants," added Fraser.
Again, rather than responding directly, Nicholson told Fraser that drug traffickers are "people who are in the business of destroying other people's lives — and I think we send a very clear message that this will not be tolerated."
I guess claiming that marijuana producers are “in the business of destroying other people’s lives” is an argument for prohibition, but it isn’t an argument for treating them more harshly than pedophiles. Sure if you don’t think they should be tolerated you should send a clear message to that effect. Why do you also have to send a message that says that sexually assaulting a child is not as bad?
I think the truth is that the reason Mr. Nicholson didn’t answer Sen. Fraser’s question is because if he did the Conservatives would look ridiculous (more so than now?). There is no formula, grid, or set of guidelines that led the Conservatives to establish these particular timeframes for the mandatory minimums. They are just making it up without study or reflection and that isn't they way good policy is made.