Pubdate: Fri, 06 Jan 2006
Source: Globe and Mail (Canada)
Section: Page A7
Copyright: 2005, The Globe and Mail Company
Contact:  http://www.globeandmail.ca/
Details: http://www.mapinc.org/media/168
Author: Richard Blackwell
Bookmark: http://www.mapinc.org/find?199 (Mandatory Minimum Sentencing)

The Election

REALITY CHECK GETTING TOUGH MAY JEOPARDIZE RIGHTS OF DEFENDANTS

The statement: "The revolving door of criminal justice of this 
current government bears significant responsibility for the tide of 
gun, drug and gang crime plaguing our cities." Stephen Harper, 
campaigning in Toronto, blames the Liberals for being soft on crime.

The message: People accused of crimes have it too easy, and 
defendants need to face tighter controls over their bail conditions, 
and tougher sentences.

The reality: Many lawyers think the rhetoric swirling around the 
election campaign could damage the rights of defendants facing 
charges in Canadian courts -- even before any laws are changed.

"There's no doubt that the rights of defendants will be seriously 
affected," said prominent criminal lawyer Edward Greenspan. In the 
current environment, he said, "there is a risk of innocent people not 
getting bail or not getting a fair trial." Politicians are looking 
for a quick fix for a problem that has been simmering for years, and 
in any event, gun violence in Canada is "much overstated," he said.

While judges have a reputation for remaining above the fray and 
applying the existing laws fairly, the intensity of debate could 
affect their decisions, said Michael Tammen, a criminal lawyer at 
Harper Grey LLP in Vancouver.

Judges will not consciously be influenced, he said, but there could 
still be an impact.

Alan Young, a professor at Osgoode Hall Law School in Toronto, agreed 
that judges could be affected by the debate, and by opinion polls 
that show many people think they are too lenient.

"With the focus right now on gun violence, most judges don't want to 
be scapegoated as being part of the problem," he said. The key 
proposals that have been floated during the election campaign are for 
an increase in mandatory minimum sentences for gun crimes, and 
changes that would require defendants in gun crimes to demonstrate 
why they should get bail -- the so-called reverse-onus provision.

Mr. Young said the reverse-onus change would have only a marginal 
impact on the rights of the accused, because it would just make it a 
little harder to get bail.

Winnipeg lawyer Saul Simmonds said very serious sentences are already 
being handed out for most gun crimes, and he described the proposals 
as a "knee-jerk reaction," even though fears are understandable.

Some lawyers support the proposed changes, however.

Michael Code, a prominent Toronto criminal lawyer, said there are 
"good policy arguments" for strengthening mandatory minimums for gun 
possession, if it is clear the accused was planning to use the gun 
for a crime. There is also some justification for broadening the 
scope of reverse-onus laws to include more gun crimes, Mr. Code said.
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MAP posted-by: Beth Wehrman