Law Times

Law Times • December 13, 2010 An online resource 1.800.263.3269 Focus On CRIMINAL LAW Little leeway in mandatory minimums: Crown Ministry policies provide discretion only in 'exceptional circumstances' BY GLENN KAUTH Law Times M andatory sentences trans- fer, 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 wrongdo- ing through harsh sentencing regimes. Th ey include Marc Mauer, executive director of the U.S. organization the Sentencing Project, who made the comment about discretion before Can- ada's standing committee on legal and constitutional aff airs. Mauer, of course, can speak based on his country's long experience with sometimes-harsh mandatory mini- mum 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 mari- juana sales of about $350 each. As he possessed a weapon during the sales, the court had to give the man consecu- tive penalties despite the fact he didn't use or threaten to use the weapon. Here in Canada, lawyers are get- ting used to the idea of a rash of laws that remove judicial discretion by im- posing mandatory minimums or, in the case of several serious personal injury of- fences, precluding the use of conditional sentences. Sentencing fl oors have been around for a long time, but with the fed- eral 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 argu- ment 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 pros- ecutors decide to advance their case. At the recent Criminal Lawyers' Association con- ference in Toronto, Paola Konge, a Hamil- ton, Ont., defence counsel, outlined some of the areas for challenging or infl uenc- ing Crowns' decisions. "Of course, what charges a defendant faces, how the Crown will proceed, and what the Crown will ac- cept pleas to is the subject of Crown discre- tion," she wrote in a paper accompanying the session on mandatory minimums. "If a client is charged with an off ence that car- ries 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 manda- tory minimum sentences." A key issue within the Crown's purview is whether to proceed by either summary conviction or indictment. "Th e diff erence The bottom line is that defence counsel have fewer options for challenging mandatory minimums, says Jeffrey Levy. can be stark; for example, a conviction for possession of a loaded, restricted or pro- hibited fi rearm (s. 95) does not carry a minimum sentence when the Crown pro- ceeds summarily but attracts a three-year minimum sentence when the Crown pro- ceeds by indictment," Konge wrote. "Th e Crown's election is therefore particularly important in these cases and eff ort should be directed to persuading the Crown as to the mode of election based on the ap- plicable principles." Other options for defence lawyers in- clude negotiating, through plea bargain discussions, for conviction to a lesser of- fence 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 un- usual punishment; s. 7 related to the right to liberty and the principles of fundamen- tal justice; and s. 9 on the right not to be arbitrarily detained or imprisoned. But as Jeff rey 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 cer- tain sexual assault cases, the ministry's poli- cy is that when there's a reasonable prospect of conviction, assistant Crowns must not reduce or withdraw the charge unless "ex- ceptional circumstances" apply. Even then, they have to get permission of their Crown attorney, he said. As a result, if someone is facing a hand- ful 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 fi re- arms off ences, 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 in- volved in a case in which he has reduced the charges. But he noted that one mat- ter Konge's fi rm 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 fi ght between a man and his wife's new boy- friend. When the accused returned home, police arrived there to look for a knife. But after securing a consent search, offi - cers came across a fi rearm as they looked through his possessions, resulting in a weapons charge against the man. It turned out, however, that he had in- herited 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 manda- tory minimum sentence, Konge notes. But the bottom line, according to Levy, is that defence lawyers have fewer options, something Konge says she ac- cepts. "I think at the end of the day, we'll www.lawtimesnews.com be setting more trial dates," she says. "I think that's indisputable." "Th ere's no downside to the client at that point," she adds. In addition, Crowns face guide- lines on what to do once someone is convicted of an off ence with a man- datory 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 man- datory minimums an "infl ationary fl oor" available in most cases only to the least serious off ender. Th at means, Levy said, that Crowns will likely seek a sentence beyond the minimum depending on the cir- cumstances. 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 fi rmly as thought." On those questions, however, Ontario judges have tended to rule that they have little leeway. As Jus- tice 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 defen- dant's sentence despite his view that the mandatory minimum "was a less suitable sentence than imprisonment within the intermittent range." Th e matter involved Randy Schwartz' conviction for driving with a blood alco- hol concentration of 120 milligrams of alcohol per 100 millilitres of blood. He had other convictions related to similar off ences 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 pen- alty of 30 to 60 days the defence was pro- posing. 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 Ait- ken, challenged the Crown's actions based on Charter arguments. But in his ruling, Harpur rejected Ait- ken's argument that a Crown's decision to seek an increased penalty based on prior convictions is a non-core prosecuto- rial function that's subject to review on a standard of reasonableness. "To so hold is to place the court in the untenable posi- tion of second-guessing prosecutors in the making of decisions properly falling with- in 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 See Time, page 10 PAGE 9 Photo: Phil Brown

• Cover
• Western Union
• To Plead Or Not
• Focus On Criminal Law