Law Times

Page 4 June 16, 2014 • Law Times www.lawtimesnews.com SCC Crown discretion ruling scrutinized Lawyer concerned about prosecutors' power to invoke minimum sentences By yamri Taddese Law Times ome criminal defence lawyers are decrying a Su- preme Court of Canada decision over concerns it will shield Crown prosecutors' choice to pursue mandatory minimum sentences from scrutiny when the accused is aboriginal. In R. v. Anderson, the Supreme Court unanimously found Crown attorneys don't have to consider the R. v. Gladue principles when they prosecute aboriginal people. The Gladue principles, which deal with alternatives to in- carceration for aboriginal people, aren't protected under the Charter of Rights and Freedoms, the court found. The ruling means Crown decisions to proceed with mandatory minimums will go unchecked, something that doesn't bode well for a criminal justice system in which ab- original people are overrepresented, according to critics. "Prosecutorial discretion is fundamental to the proper administration of justice. However, the increasing number of sections of the Criminal Code that provide the Crown the power to invoke minimum penalties on conviction and thereby limit or eliminate the judge's discretion is distress- ing," says Norm Boxall, a criminal defence lawyer at Bayne Sellar Boxall in Ottawa. He adds: "When prosecutorial discretion is effectively unreviewable, the administration of justice is suscepti- ble to injustice." In Anderson, the Supreme Court reversed a decision from the Supreme Court of Newfoundland and Labrador. It dealt with a case in which the prosecutor had sought a mandatory minimum sentence of 120 days for an accused who had four prior convictions for impaired driving. The trial judge in Newfoundland denied the Crown's request for a mandatory minimum sentence after find- ing the prosecutor had neglected to consider the ac- cused's aboriginal status. The Supreme Court of Canada found otherwise. It found that while the courts must consider the Gladue prin- ciples, prosecutors don't have to do so. "The proportionality principle requires judges to con- sider systemic and background factors, including aborigi- nal status, which may bear on the culpability of the offend- er. There is no basis in law to support equating the distinct roles of the judge and the prosecutor in the sentencing pro- cess," wrote Justice Michael Moldaver. Cheryl Milne, executive director of the David Asper Centre for Constitutional Law, an intervener in the case, expressed concern at the court's finding. "I was certainly a bit disconcerted by the fact that they found the Crown decisions are not reviewable," she says. The court's decision suggests that although the Charter doesn't protect the Gladue principles, the Crown may not breach other Charter values while seeking mandatory min- imum sentences for aboriginals, says Milne. "I assume that if a Crown, in seeking a mandatory mini- mum sentence, had done something that was clearly wrong and clearly contrary to the Charter, it could be reviewable," she says. But she adds: "The problem with this is that most discrimination is not direct and overt. It's often systemic and harder to pinpoint." The David Asper centre argued that not taking into ac- count the factors under the Gladue principles is a violation of s. 15 of the Charter. Criminal defence lawyer Scott Bergman agrees that dis- crimination against aboriginal people can be subtle. But he says challenging mandatory minimum sentences as they apply to aboriginal people is a better way of addressing the issue than seeking to restrict the Crown's discretion. "The place to do this if you have a problem with the mandatory minimums in the aboriginal context is to challenge the scheme. Don't challenge the exercise of the discretion unless you can show that it's been somehow abusive," he says. "The court's role isn't to say to prosecutors how they should exercise their decisions when they are perfectly within reason and not abusive," he adds. According to Bergman, levying allegations of im- proper conduct by the Crown has always been hard to demonstrate. "It shouldn't be a finding that's made lightly and I say that not as a defence lawyer, as it would be to my advan- tage, but as an officer of the court [who wants] a proper administration of justice." Most Crowns take the aboriginal status of those they're prosecuting into account, according to Bergman. But he says: "It's too much to engrain that in a constitu- tional obligation." Jonathan Rudin, program director and founder of Aboriginal Legal Services of Toronto, says the court's ruling is frustrating in that it fails to define the scope of protections afforded to aboriginals from systemic dis- crimination. "The difficulty is that the Supreme Court has said on a number of occasions that aboriginal people face systemic discrimination in the criminal justice system, and this case doesn't really let us figure out how we're going to deal with that question," says Rudin. "To what extent does aboriginal overrepresentation [in the criminal justice system] in and of itself show discrimi- nation? In other words, the fact that aboriginals are overrep- resented, does that mean that it's always systemic discrimi- nation?" he continues. "I think that's where the next set of battlegrounds are go- ing to be," he adds. Rudin says if defence counsel want to challenge man- datory minimum sentences, they're going to have to bring a Charter challenge directly, something that's a far more daunting task. In its ruling, the court also expressed concern that open- ing these types of Crown decisions to debate would result in a barrage of judicial reviews. It would "greatly expand the scope of judicial review of discretionary decisions made by prosecutors and put at risk the adversarial nature of our criminal justice system by inviting judicial oversight of the numerous decisions that Crown prosecutors make on a daily basis," the court said. — With files from David Dias LT NEWS Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation 1FSGFDUCPVOEȕ1VCMJTIFE%FDFNCFSFBDIZFBSPOTVCTDSJQUJPOȕ0OFUJNFQVSDIBTF- .VMUJQMFDPQZEJTDPVOUTBWBJMBCMF1SJDFTTVCKFDUUPDIBOHFXJUIPVUOPUJDFUPBQQMJDBCMFUBYFTBOETIJQQJOHIBOEMJOH 0/5"3*0-"8:&3'41)0/�, 5)&.045$0.1-&5&%*3&$503:0'0/5"3*0-"8:&34-"8'*3.4+6%(&4"/%$06354 8JUINPSFUIBOQBHFTPGFTTFOUJBMMFHBMSFGFSFODFTOntario Lawyer's Phone Book JTZPVSCFTUDPOOFDUJPO UPMFHBMTFSWJDFTJO0OUBSJP4VCTDSJCFSTDBOEFQFOEPOUIFDSFEJCJMJUZBDDVSBDZBOEDVSSFODZPGUIJTEJSFDUPSZ ZFBSBGUFSZFBS More detail and a wider scope of legal contact information for Ontario than any other source: ȕ 0WFS27,000 lawyers listed ȕ 0WFS9,000 law firms and corporate offices listed ȕ 'BYBOEUFMFQIPOFOVNCFSTFNBJMBEESFTTFTPGȮDFMPDBUJPOTBOEQPTUBMDPEFT Untitled-5 1 14-02-18 10:29 AM S LSUC action group seeks access solutions By yamri Taddese Law Times n an effort the Law Society of Upper Canada's outgo- ing treasurer is touting as his legacy, the regulator has brought some 100 members of the justice sector un- der the same roof for the first time to put their heads together on the access to justice crisis. The law society's action group on access to justice creates a forum for the legal and justice sectors to foster teamwork on the access to justice front. LSUC Treasurer Thomas Conway, whose term concludes this month, says this is "without a doubt" one of his biggest accom- plishments. "Two years ago, when I was first elected, the goal I set was to define a new role for the law society in improving access to justice," says Conway. The need for a collaborative forum quickly became apparent, he adds, and the law society was in a position to facilitate it. "I am very proud to see that move from a concept to a reality," he says. Representatives from the courts, government, aca- demia, the bar, paralegal associations, and access to jus- tice groups were at the inaugural meeting and shared examples of what they can do. At the meeting, partici- pants discussed what they're already doing to share their knowledge with other justice groups and brainstormed innovative ideas to make justice more accessible. Their suggestions included creating a sort of "incubator" for lawyers building a practice to help underserved clients, coaching self-represented litigants, and setting up a "legal brokerage" to assist family law litigants at a reduced fee. Others encouraged solutions that have been on the ra- dar in Ontario, such as improving court technology, in- creasing the monetary limit for the Small Claims Court, and leveraging the skills of law students. Criminal Lawyers' Association president Anthony Moustacalis, who was at the meeting at Osgoode Hall in Toronto earlier this month, says he was happy with the range of ideas exchanged by the participants. He calls the action group "an excellent initiative by the law society." "The problems of access to justice have become so complex and diverse that there's a real need for those who deal with people who aren't represented or are marginal- ized to share information and successes and failures to know how to go forward," says Moustacalis. Collaborators will use the information they've gath- ered to press government and other agencies to work together, he notes. While some access to justice issues require funding, others are more about simplifying pro- cesses, says Moustacalis. As the effort continues, there will be metrics in place to track the success of the action group, says Conway. LT I

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