Law Times

PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor .................. Glenn Kauth Associate Editor ..........Tim Shufelt Staff Writer ............. Robert Todd Copy Editor ......... Heather Gardiner CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Account Co-ordinator .... Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta Sales Co-ordinator ......... Sandy Shutt ©Law Times Inc. 2010 All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times Inc. disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Editorial Obiter Good news on legal aid despite lingering questions L ast week's news that Ontario's criminal defence lawyers were ending the legal aid boycott of the most serious cases was a welcome development. Already, people accused of murder were finding it nearly impossible to find a lawyer. While the boycott initially involved the most senior defence coun- sel, junior lawyers soon joined in as well. As a result, threats to expand the protest to other levels of court and less serious cases meant the justice system could eas- ily have ground to a halt. The Criminal Lawyers' Association that spearheaded the boycott is cer- tainly heralding last week's deal with the Ontario government as a victory. Given that the tariff boost is only five per cent annually after years of minimal or no increases, that might not quite be the case. But precisely because successive governments have dragged their heels on the issue for so long, the hike in the hourly rate is significant. In particular, the fact that the rate for the most seri- ous cases is going up even more over the next five years — by 66 per cent — should help resolve long-standing complaints that criminal lawyers were essentially working for free on complex files that took large amounts of unpaid hours. So it's good news that Ontarians will be able to find a lawyer again and that defence counsel have made gains in their bid for resources that in some measure approach those available to Crown prosecutors. Of course, ques- tions remain. How, for example, will the government pay for the tariff increase? Will it, for example, take away money from other parts of Legal Aid Ontario's budget? Does the pay boost mean some aspects of the so-called "legal aid trans- formation" promised at the time of Sep- tember's $150-million funding increase won't happen? Attorney General Chris Bentley says that's not the case. But besides those questions, it's unclear whether the latest increase will be enough to entice senior lawyers to take on the most serious cases again. While raising the tariff for those matters will help, a key complaint from lawyers is that LAO limits the number of hours they can bill. So while it's fine to make a reasonable rate for billable time, the unpaid extra hours they put in order to competently defend someone accused of a serious crime is an impedi- ment to taking on those cases. But in the end, the CLA showed real progress in unifying the defence bar on the issue. Given the gravity of the criminal matters at stake, it wasn't easy for many lawyers to turn away accused people looking for help. In the meantime, fears that the public would turn against lawyers already making what appears to be a generous $97 per hour didn't materialize, a fact that's a testament to how obvious the dis- parity between the resources afforded the Crown and those provided to the defence has become. Finally, then, the government has acknowledged in a meaningful way what the rest of us have known for years: real access to justice requires a fully funded legal aid system. Let's hope that as the details of the deal reached last week take shape, we see progress on that front. — Glenn Kauth ed firearm is now three years if the Crown proceeds by indict- ment. That's for a first offence. For a second or subsequent conviction, the minimum pen- alty is now five years. It can be enough to have the ammuni- tion nearby. The changes raise a number T of issues that are expected to come up in Charter of Rights and Freedoms challenges to strike down s. 95(2) of the Criminal Code. Does the penalty amount to cruel and unusual punishment? The stiff sentences bring to mind the old seven-year mini- mum sentence for importing narcotics. In R. v. Smith, the Supreme Court of Canada struck down the seven-year penalty because of its gross disproportionateness. Now, offenders merely possessing a loaded firearm, whether or not Minimum penalties bound to spark Charter challenges A Criminal he minimum penalty for possessing a loaded restricted or prohibit- they have a long or a short criminal record, can receive a prison sentence. The gun could be in a closet or in a shed behind the cottage, but the penalty is the same. Criteria that normally apply at sentencing are poten- tially irrelevant. The fact that someone is a first-time offender, for example, may have no bear- ing. A person with a previous conviction for the same offence would receive a five-year mini- mum sentence, which is poten- tially disproportionate to the degree of culpability. In Smith, the top court held that, in determining whether a penalty is grossly dispropor- tionate and violates s. 12 of the Charter, judges must consider the gravity of the offence, the offender's personal character- istics, and the circumstances of the case to determine the appropriate range of sentences. In the wake of Smith, the government amended the law to Mind By Rosalind Conway eliminate the minimum penalty for importing restricted drugs. It changed the Criminal Code and codified sentencing princi- ples to have judges take mitigat- ing factors, especially aboriginal status, into consideration. How do these criteria fit in when the base penalty exceeds what may be objectively reasonable? The reasonable limits provi- sion in the Charter didn't save the seven-year minimum in the Smith case. Arguably, the war on guns and efforts to get tough on crime are no reason to send everyone charged under s. 95 straight to the penitentiary. Another difficulty that exists with s. 95 is that it gives the Crown making the election www.lawtimesnews.com the discretion to impose a three- or five-year minimum sentence. There is no mini- mum penalty if the Crown proceeds by summary convic- tion; in fact, there is a maxi- mum penalty of one year in jail. The maximum summary conviction penalty is in itself proof of how disproportionate the minimum indictable penal- ties are. The indictable penal- ties remove discretion from the judge who would otherwise be crafting the appropriate sen- tence for the accused. Effectively giving the Crown the power to determine the sen- tence seems to grant a unique, unnecessary, and extraordinary power that could possibly lead to an abuse of process. Can we not trust that judges will come to the proper conclusion on sentencing? Is it constitutional to permit the Crown to deter- mine the lower end of the range of sentence, especially when it starts with a jail term? FEBRUARY 1, 2010 / LAW TIMES Law Times Inc. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com President: Stuart J. Morrison Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. lawtimes@clbmedia.ca CIRCULATIONS & SUBSCRIPTIONS $141.75 per year in Canada (GST incl., GST Reg. #R121351134) and US$266.25 for foreign addresses. Single copies are $3.55 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Kristen Schulz-Lacey at: kschulz-lacey@clbmedia.ca or Tel: 905-713-4355 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 klorimer@clbmedia.ca, Kimberlee Pascoe at 905-713-4342 kpascoe@clbmedia. ca, or Kathy Liotta at 905-713-4340 kliotta@ clbmedia.ca or Sandy Shutt at 905-713-4337 sshutt@clbmedia.ca Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. As Crown discretion is largely not subject to review, a sig- nificant measure of what would otherwise be up to the judge now falls to prosecutors. The near impossibility of challenging the exercise of that discretion is another reason to argue the new law is unconstitutional. Minimum penalties, ironi- cally, conflict with the principles Parliament has established for sentencing. Under s. 718.1, for example, the sentence is to be proportionate to the gravity of the crime and the degree of the offender's responsibility. How is it possible, then, to reconcile s. 718.1 with the new penalties in s. 95? It reminds me of some- thing my uncle, Jon Cohen, used to say: "I am not entirely sure that you have thought this all the way through." LT Rosalind Conway is a certified specialist in criminal litigation. She can be reached at rosalind. conway@magma.ca.

• Cover
• Boycott Ends
• Judicial Retirement
• Focus On Family Law/Trusts and Estates