Pubdate: Mon, 13 Dec 2010
Source: Law Times (Canada)
Copyright: 2010 Canadian Lawyer Magazine Inc.
Author: Glenn Kauth
Cited: The Sentencing Project
Bookmark: (Mandatory Minimum Sentencing)


Ministry Policies Provide Discretion Only in 'Exceptional Circumstances'

Mandatory sentences transfer, but do not eliminate, discretion.

Despite notable comments from the Alberta Court of Appeal last week, 
that's the view of some people on the defence side of the criminal 
law bar as well as those opposed to the idea of trying to crack down 
on wrongdoing through harsh sentencing regimes.

They include Marc Mauer, executive director of the U.S. organization 
the Sentencing Project, who made the comment about discretion before 
Canada's standing committee on legal and constitutional affairs.

Mauer, of course, can speak based on his country's long experience 
with sometimes-harsh mandatory minimum sentences.

As he noted in his testimony, a perhaps good example of problematic 
results was the case of a 24-year-old music producer with no prior 
convictions who received a 55-year sentence for three related 
marijuana sales of about $350 each.

As he possessed a weapon during the sales, the court had to give the 
man consecutive penalties despite the fact he didn't use or threaten 
to use the weapon.

Here in Canada, lawyers are getting used to the idea of a rash of 
laws that remove judicial discretion by imposing mandatory minimums 
or, in the case of several serious personal injury offences, 
precluding the use of conditional sentences.

Sentencing floors have been around for a long time, but with the 
federal government's crackdown on crime, defence lawyers are facing 
new challenges in achieving what they would argue is the fair and 
just result for their clients.

Nevertheless, many counsel still feel there are options on the lines 
of the argument advanced by Mauer, namely that new laws simply 
transfer discretion.

In Canada's case, they believe the wiggle room rests with the Crown 
in terms of how prosecutors decide to advance their case.

At the recent Criminal Lawyers' Association conference in Toronto, 
Paola Konge, a Hamilton, Ont., defence counsel, outlined some of the 
areas for challenging or influencing Crowns' decisions.

"Of course, what charges a defendant faces, how the Crown will 
proceed, and what the Crown will accept pleas to is the subject of 
Crown discretion," she wrote in a paper accompanying the session on 
mandatory minimums.

"If a client is charged with an offence that carries a mandatory 
minimum sentence, an important part of the representation will 
probably be negotiating with the Crown. Capitalize on the weaknesses 
of the case and be creative in order to avoid mandatory minimum sentences."

A key issue within the Crown's purview is whether to proceed by 
either summary conviction or indictment.

"The difference can be stark; for example, a conviction for 
possession of a loaded, restricted or prohibited firearm (s. 95) does 
not carry a minimum sentence when the Crown proceeds summarily but 
attracts a three-year minimum sentence when the Crown proceeds by 
indictment," Konge wrote.

"The Crown's election is therefore particularly important in these 
cases and effort should be directed to persuading the Crown as to the 
mode of election based on the applicable principles."

Other options for defence lawyers include negotiating, through plea 
bargain discussions, for conviction to a lesser offence for which a 
mandatory minimum sentence doesn't apply.

As well, counsel can attempt to challenge what they consider to be 
harsh sentences based on a number of grounds under the Charter of 
Rights and Freedoms: s. 12 dealing with cruel and unusual punishment; 
s. 7 related to the right to liberty and the principles of 
fundamental justice; and s. 9 on the right not to be arbitrarily 
detained or imprisoned.

But as Jeffrey Levy, an assistant Crown attorney with the Ministry of 
the Attorney General's guns and gangs initiative, pointed out at the 
CLA conference, defence lawyers will have to work pretty hard to 
convince prosecutors to exercise that discretion in their favour.

He noted that in two areas he has knowledge of, guns and gangs and 
certain sexual assault cases, the ministry's policy is that when 
there's a reasonable prospect of conviction, assistant Crowns must 
not reduce or withdraw the charge unless "exceptional circumstances" 
apply. Even then, they have to get permission of their Crown attorney, he said.

As a result, if someone is facing a handful of charges related to a 
gun, the Crown can't withdraw the one with a mandatory minimum.

At the same time, despite the fact that both summary conviction or 
indictment are available with certain firearms offences, the Ontario 
government's policy is to proceed by indictment absent, once again, 
exceptional circumstances.

So for defence lawyers, that means they need to be particularly 
well-prepared to make their case during meetings with the Crown, Levy said.

In fact, Levy said he has yet to be involved in a case in which he 
has reduced the charges. But he noted that one matter Konge's firm 
took on had the makings of a viable argument for proceeding in a 
manner more favourable to the defence.

According to Konge, the case began with a domestic dispute that 
resulted in a fight between a man and his wife's new boyfriend. When 
the accused returned home, police arrived there to look for a knife.

But after securing a consent search, officers came across a firearm 
as they looked through his possessions, resulting in a weapons charge 
against the man.

It turned out, however, that he had inherited a car containing the 
weapon from a relative in Florida and wasn't aware of it when he got 
the vehicle. In response, the Crown agreed not to pursue the 
mandatory minimum sentence, Konge notes.

But the bottom line, according to Levy, is that defence lawyers have 
fewer options, something Konge says she accepts. "I think at the end 
of the day, we'll be setting more trial dates," she says. "I think 
that's indisputable."

"There's no downside to the client at that point," she adds. In 
addition, Crowns face guidelines on what to do once someone is 
convicted of an offence with a mandatory minimum.

According to Levy, the policy is to follow the Supreme Court of 
Canada's line of thinking in R. v. Morrisey, in which former justice 
Louise Arbour called mandatory minimums an "inflationary floor" 
available in most cases only to the least serious offender.

That means, Levy said, that Crowns will likely seek a sentence beyond 
the minimum depending on the circumstances.

A key question, however, involves the degree to which the courts have 
the opportunity to review Crowns' exercise of their discretion.

But as Konge pointed out in her paper, the courts have so far largely 
shied away from aggressive intervention on that question. Still, she 
referred to a few cases that have "led some to believe that perhaps 
the door is not shut as firmly as thought."

On those questions, however, Ontario judges have tended to rule that 
they have little leeway. As Justice Michael Harpur of the Ontario 
Court of Justice noted last month in R. v. Schwartz, "the matter is 
out of my hands" on the issue of reducing a defendant's sentence 
despite his view that the mandatory minimum "was a less suitable 
sentence than imprisonment within the intermittent range."

The matter involved Randy Schwartz' conviction for driving with a 
blood alcohol concentration of 120 milligrams of alcohol per 100 
millilitres of blood.

He had other convictions related to similar offences dating back 
almost 20 years, which gave the Crown the opportunity to seek a 
minimum punishment of 120 days in jail rather than the intermittent 
penalty of 30 to 60 days the defence was proposing.

Given the passage of time since those prior convictions and the fact 
that Schwartz would lose his job and his home by going to jail, his 
counsel, Richard Aitken, challenged the Crown's actions based on 
Charter arguments.

But in his ruling, Harpur rejected Aitken's argument that a Crown's 
decision to seek an increased penalty based on prior convictions is a 
non-core prosecutorial function that's subject to review on a 
standard of reasonableness.

"To so hold is to place the court in the untenable position of 
second-guessing prosecutors in the making of decisions properly 
falling within their powers, a supervisory role said by both the 
Krieger [v. Law Society of Alberta] and [R. v.] Power decisions to be 
'beyond the legitimate reach of the court.'"

As a result, Harpur said he had no choice but to impose the minimum 
given that Schwartz "has not established flagrant impropriety or 
abuse of process by the Crown in its decision to give notice, nor of 
cruel and unusual punishment in the result."

So there doesn't appear to be much lawyers can do in such cases. Of 
course, the same reasoning applies in other areas where the 
government has cracked down, including its bid to restrict 
conditional sentences.

In a case this year, R. v. Bankay, the Ontario Court of Appeal varied 
the sentence handed down by Justice June Maresca of the Ontario Court 
of Justice after a woman pleaded guilty to aggravated assault.

Maresca, the appeal court ruled, imposed "what amounted to a 
disguised conditional sentence" by granting a probation order with a 
term of six months of house arrest.

"It was an error of law to impose a sentence that circumvented 
Parliament's decision to exclude conditional sentences for this 
offence," the appeal court ruled.

As a result, people like Konge say they may have to take a longer 
view to get the types of dispositions they believe are just.

"I think the bottom line is if we want to see changes to mandatory 
minimum legislation, we all need to become members of a political 
party that will make that happen." Changing the political climate is 
something Mauer hopes will happen sooner rather than later.

"It is long past time to restore a better balance of the use of 
discretion within the criminal justice system as a means of producing 
more constructive sentencing outcomes," he wrote in a submission to 
the parliamentary committee that noted the problems he sees with the 
U.S. approach to criminal justice.

"I hope that the experience in recent decades in the United States 
will prove instructive."  
- ---
MAP posted-by: Richard Lake