Law Times

Law Times • sepTember 22, 2014 Page 3 www.lawtimesnews.com more crime bill scrutiny to follow pretrial credit ruling Crown lawyers critical of judges' use of 'reasonable hypothetical' analysis By shaNNON Kari For Law Times n the wake of the Ontario Court of Appeal's move to strike down another one of the Conservative government's Criminal Code amendments this month, yet more criminal provi- sions will be coming under scru- tiny in an upcoming case on the constitutionality of mandatory minimum firearm provisions. The provisions of the Truth in Sentencing Act and the penalties for illegal firearm possession are just two examples of a growing number of challenges under the Charter of Rights and Freedoms to crime laws enacted by Prime Minister Stephen Harper's gov- ernment. The most recent example was a decision issued Sept. 10 by the Ontario Court of Appeal that struck down a section of the Truth in Sentencing Act that precluded pretrial credit of up to 1.5 days for every day spent in remand cus- tody if the court had denied the offender bail primarily because of a previous conviction. Ontario Chief Justice George Strathy concluded the provision had the effect of putting a key part of the sentencing determination in the hands of the justice of the peace at a bail hearing and not with the trial judge. The restric- tion subjected "identically placed offenders to different periods of incarceration, depending on whether they are able to obtain bail, for reasons that are irrel- evant to sentencing," wrote Stra- thy in R v. Safarzadeh-Markhali, with justices Marc Rosenberg and David Watt concurring. Pretrial custody doesn't count toward parole eligibility and the court noted "the greater the time spent in pre-trial custody the greater the disparity will be" between two individuals who re- ceive the same sentence but with only one having been out on bail. Safarzadeh-Markhali and other recent examples of the courts striking down laws aren't examples of judicial activism, says Michael Dineen, a Toronto de- fence lawyer and partner at Dawe Dineen. "We do not have a radical bench, especially at the appellate level. What we have seen is a rash of Charter non-compliant legisla- tion," he says. The decision in Safarzadeh- Markhali comes months after the Supreme Court rejected the Crown's argument that excep- tional circumstances were neces- sary to grant enhanced credit for pretrial custody. In that case, the Supreme Court upheld the findings of the Court of Appeal and this fall the top court will also be reviewing two other decisions that struck down two of the mandatory minimum sentences related to the sections of the Criminal Code dealing with illegal fire- arm possession. In R. v. Nur and R. v. Charles, the Court of Appeal ruled that the mandatory three-year mini- mum sentence (if the Crown proceeds by indictment) for a first offence and five years for a subsequent one, was contrary to the prohibition against cruel and unusual punishment. Using a "reasonable hypothet- ical" analysis, appeal court Jus- tice David Doherty concluded in Nur that a registered gun owner with an unloaded weapon stored in an unauthorized residence, with ammunition nearby, would be subject to a minimum three- year sentence if the Crown pro- ceeded by indictment (there's a one-year maximum if the Crown proceeded summarily). In the Supreme Court ap- peals of the two cases scheduled for early November, the pro- vincial and federal Crowns are sharply critical of the reasonable hypothetical analysis. It's time to revisit the legal framework first used by the Supreme Court in 1987, argue Riun Shandler and Andreea Ba- iasu, both lawyers for the Min- istry of the Attorney General. "The reasonable hypothetical methodology is difficult to ap- ply, produces unpredictable re- sults, and ultimately allows for the constitutionality of legisla- tion to be determined by con- structing hypothetical scenarios with no basis in evidence," they stated in written arguments. Nancy Dennison and Richard Kramer, representing the attor- ney general of Canada, argue that "deference to legislative choice in sentencing" is necessary and that a sentence must be "grossly disproportionate" to violate the cruel and unusual punishment protections of the Charter. Dineen, who's representing Sidney Charles at the Supreme Court, says the reasonable hypo- thetical analysis is necessary when there are "special circumstances" in which a mandatory minimum isn't appropriate. In Nur, the Court of Appeal cit- ed the 2008 case of former Ontario cabinet minister John Snobelen, who had inadvertently brought back a handgun legally registered in the United States. The Crown proceeded summarily and he re- ceived an absolute discharge. Dineen says the existing laws "place all of the discretion in the hands of the Crown and not the court." Crown attorneys very rarely proceed summarily in Ontario when it comes to firearm of- fences. A 12-month conditional sentence imposed in 2011 on the son of a Toronto police of- ficer is one of the only reported cases where the Crown didn't proceed under the section with the three-year minimum for an illegal handgun. Dirk Derstine, of Derstine Penman in Toronto and counsel for Hussein Nur, says the time to determine an appropriate sen- tence is after a trial and not when police lay the charge. "The gate- keeping should not be at the front end," says Derstine. LT NEWS Introducing the new CriminalSource ™ on WestlawNext ® Canada. Nothing else compares. The new CriminalSource™ is home to Canada's largest collection of case law, annotations, and commentary from criminal law experts – all presented to you in every search. 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Watch a demo at westlawnextcanada.com/criminalsource Call 1-866-609-5811 00223AX-A46861 I The reasonable hypothetical methodology is difficult to apply, produces unpredictable results, and ultimately allows for the constitutionality of legislation to be determined by constructing hypothetical scenarios with no basis in evidence.

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