Law Times

PAGE 4 NEWS September 26, 2011 • Law timeS Lawyers gearing up for assault on omnibus bill C BY MICHAEL McKIERNAN Law Times riminal lawyers are gear- ing up for a new assault on the federal govern- ment's tough-on-crime agenda in the courts after losing the legislative battle. Justice Minister Rob Nichol- son tabled his omnibus crime bill last week in the House of Com- mons, where a Conservative ma- jority will now ensure smooth passage for a raft of criminal jus- tice reforms that had floundered in Parliament over the last five years without becoming law. A number of lawyers' groups have objected to the legislation, which includes new mandatory minimum sentences for vari- ous offences, the elimination of conditional sentences for some crimes, and harsher penalties for violent young offenders. Criminal lawyer Dirk Derstine says the government can expect a wave of constitutional chal- lenges once the measures finally receive Royal assent. "I think those challenges are inevitable," Derstine says. Derstine acted for Hussein Nur in his recent constitutional challenge of a 2008 law that boosted the mandatory min- imum sentence for possession of a loaded firearm from one year to three years. He argued it was arbitrary, constituted cruel and unusual punishment, and dis- criminated against black youth. Although Superior Court Justice Michael Code denied the challenge last month, he left the door open to the idea in remarks that the argument could stand up if a different ac- cused brought it forward. Derstine, who has taken that ruling to the Ontario Court of Appeal, says the newest batch of legislation will prompt fresh challenges. "You get problems when you attract more man- datory minimum sentences, especially towards areas where the courts and ordinary Can- adians don't believe in draconian punishments," says Derstine. "I don't think your average Canadian is going to be horri- fied by mandatory minimum sentences for pedophilic of- fences, but the marijuana con- sumption stuff is fairly ordinary. In terms of degree of moral op- probrium, this is no worse than smoking a joint, which many Canadians think should not be criminal at all. But if you and I decide we're going to grow some weed plants for the purpose of consuming them together, we're trafficking and we'd both go to jail for six months." Toronto criminal lawyer John Rosen says mandatory min- imums have traditionally been a public policy tool in cases such as murder with the aim of "stigmatizing the conduct rather than punishing the offender." "When you start adding to the list of [minimum] sentences, you start to wonder whether or not we've gone beyond a public policy of trying to stop a certain kind of conduct and we've ventured into 'I think there's going to definitely be challenges,' says Christopher Hicks. the realm of punishment pure and simple," Rosen says. He believes a new era of constitutional challenges is about to begin with more mandatory minimums in- creasing the chance that judg- es will impose sentences that are grossly disproportionate to the gravity of the offence. Rosen sees the legislation as a step backwards in light of Supreme Court decisions such as the 1987 case of R. v. Smith (Edward Dewey). In that case, the court struck down a man- datory minimum sentence of seven years for importing nar- cotics because of its potential disproportionality. Nicholson has so far held ACCESS THE LATEST RULES OF COURT FROM WHEREVER YOU ARE ONTARIO ANNUAL PRACTICE 2011-2012 THE LATE HONOURABLE JUSTICE JAMES J. 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Mobile Version includes all Rules and Case Annotations, Practice Directions and the text of several key statutes. e-Notes — FREE monthly electronic supplements containing the most recent reported and unreported cases with links to the full-text judgments, as well as legislative changes as they become available. firm despite an onslaught from organizations such as the Can- adian Bar Association. At the CBA's annual conference in Halifax last month, he defended his agenda against allegations that it removes discretion from judges. In doing so, he insisted that Parliament is entitled to set guidelines on sentencing. "I am proud today to an- nounce that our government has fulfilled its commitment to Canadians to bring forward legislation to make our streets, families, and communities saf- er," he said in a statement last week. "We campaigned on a promise to get tough on child sexual offenders, crack down on illegal drug trafficking, and improve the overall efficiency of our judicial system. Canadi- ans gave us a strong mandate to bring forward these reforms." Bill C-10, the safe streets and communities act, rolls nine separate bills from the previous session of Parliament into one. They include the old bill C-16, which would eliminate condi- tional sentences for crimes in- volving personal injury as well as a number of offences prosecuted by indictment, and the previous bill C-4, which would toughen sentences for violent and repeat young offenders and loosen the restrictions on publication of their names. It follows the passage of the government's mega-trial legisla- tion earlier this summer. Those reforms aim to speed up com- plex and expensive trials that have dragged on for years in the past. Criticism of those measures has been less intense, but Chris- topher Hicks of Hicks Adams LLP believes even they may not be immune to court challenge. The bill provides for the ap- pointment of a case management judge to narrow evidence and make rulings on pretrial issues. But Adams says the new position goes against the Supreme Court's 1993 decision in R. v. Litchfield. In that case, the top court ruled it was preferable for a trial judge to rule on pretrial issues. "I think there's going to definitely be challenges," says Hicks. "It's counterproductive to have more than one judge on a matter." But Joseph Neuberger of Neu- CANADA LAW BOOK® www.lawtimesnews.com berger Rose LLP has less confi- dence in the idea of constitution- al challenges. "It's going to take some time to study everything, and I think we live in a different climate now. Arguments to strike down mandatory minimums may not resonate with our courts the way they might have a decade or two ago." LT

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