Pubdate: Mon, 19 Dec 2011
Source: Globe and Mail (Canada)
Copyright: 2011 The Globe and Mail Company
Author: Kim Mackrael
Bookmark: (Mandatory Minimum Sentencing)


The federal government is anticipating a constitutional challenge 
over the mandatory minimum sentences it plans to impose as part of 
the omnibus crime bill, documents obtained by The Globe and Mail suggest.

A piece of the legislation will require judges to issue minimum 
sentences for some drug-related offences, a change that is expected 
to dramatically increase the number of people in provincial and 
federal prisons.

The change will also ratchet up pressure on the country's courts, as 
people who might otherwise plead guilty instead choose a trial to try 
to avoid the mandated time behind bars.

Documents tabled in Parliament by Justice Minister Rob Nicholson and 
Public Safety Minister Vic Toews earlier this year suggest that 
between 80 and 90 per cent of people who would have pleaded guilty to 
"serious drug offences" in the past would opt for a trial instead.

The documents refer to Bill S-10, legislation aimed at toughening 
sentences for drug offenders that was eventually bundled into the 
omnibus crime bill this fall.

"These developments would likely result in more and longer trials, 
increased complexity and increased costs for prosecutions," the 
documents state.

Jamie Chaffe, president of the Canadian Association of Crown Counsel, 
said the added pressure of the omnibus bill will come on the heels of 
previous justice legislation that is already straining the system.

"[The system] was struggling at best, and in many places across the 
country it is at a point of crisis," Mr. Chaffe said, adding the 
increased workload could result in more people having their charges 
stayed if it takes too long for their cases to go to trial.

"If the criminal justice system is not funded sufficiently to support 
the legislation, we can expect serious public safety consequences," he said.

An estimated 53 new employees would be required to handle the 
increased case load at the federal level, according to the government 
documents, at an added cost of $35.5-million over five years.

The documents also note that the mandatory minimum sentences for drug 
offences could face legal challenges once they become law. "It is 
expected that there will be constitutional challenges to these 
amendments," the documents state.

Bill Trudell, head of the Canadian Council of Criminal Defence 
Lawyers, said that if the mandatory minimum sentences are applied to 
people with mental illnesses or drug addictions, lawyers are likely 
to raise charter challenges.

"That's a scenario that will emerge but will emerge on case-by-case 
basis," he said.

A spokeswoman for Mr. Nicholson said the government isn't worried 
about a legal challenge. "Department of Justice officials always 
ensure that our legislation is drafted in a manner which will 
withstand constitutional scrutiny," Julie Di Mambro wrote in an 
e-mail on Monday.

She added the prosecution costs, as estimated by the federal 
documents, are included in an estimate of the bill's total cost to 
the federal government, which officials have pegged at $78.6-million 
over five years.

A Senate committee will begin its examination of the nine-part 
legislation in February, and Conservatives have said they hope the 
bill will pass in March of 2012. 
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