Law Times

lAw Times • April 30, 2012 Binnie shows why judges need some discretion T COMMENT Solomon of Power & Politics chose to inter- view one of the great legal minds of our age, Ian Binnie, the former Supreme Court justice who has retired from the bench but not from the law. Binnie could have gone back to his bee farm but instead chose to return to the legal scene in Toronto. Solomon treated Binnie with the respect that three decades in the law have earned him. In return, Binnie had much to say on the cur- rent practice of law and the justice system. It' Rights and Freedoms to the selection of judges to the most interesting issue of all: his views on mandatory minimum jail sentences, a major preoccupation for the federal government. It was refreshing to hear arguments for and against mandatory minimums from a great legal mind rather than from ideologically ten- ured politicians dumping on each other. Binnie offered a welcome departure from He covered everything from the Charter of s case. our steady diet of wing-nut conservatives who want to put as many people as possible in jail for as long as they can. They base their think- ing on imagining the most disgusting case possible — never the least troubling matters societal interests. As former Supreme Court justice John T here was a rewarding inter- view on the CBC the other day. Instead of three politicians sitting on stools yelling at each other, Evan nor the ones with the most extenu- ating circumstances — and then come out with what they believe is suitable punishment for the worst criminals out there. They then make the case fit the mandatory punish- ment they've laid down. The latest move from the gov- erning Conservatives mandatory jail terms for teenagers caught growing six or more mari- juana plants in their mothers' base- ments. It' lays down Richard Cleroux judges are prepared to talk publicly about the law. We have retirement to thank for that in Binnie' s not that often that Supreme Court about the value of mandatory jail terms was surprising. In his view, there' lem" with mandatory minimum sentences. Binnie explained that, "going back to the Binnie's answer to Solomon's question s really "no prob- s all in Bill C-10. 18th century, there was a mandatory mini- mum for treason." "Judges are quite happy to have guidance from Parliament as to the input from the pub- lic," he said. But he then added a proviso about the public' Parliament "as to the relative seriousness of the offence and the need for deterrents balanced against rehabilitation." There you have the whole picture. It wasn't s input through their members of exactly a one-line answer. Binnie was thinking about the Graham James case in which the former hockey coach got only two years, much to the general pub- lic' several years ago and possibly ruining their fine careers. The Hill defence of Binnie to have the ability for a judge to be able to say, 'Let the punishment fit the crime. there's no moral justification for over-punish- ment just as there's no moral justification for ' Otherwise, under-punishment." What a beautifully simple logic. Binnie shoots down the hardliners with a one-liner of his own: too much punishment is as morally unjustified as too little punishment. But what about the mandatory minimum jail sentences? Binnie comes back: "The range between a " highly flexible sentencing system at one end and strict mandatory minimums at the other leaves a lot of scope which is partially filled by sentencing guidelines in the Criminal Code. How do we get minds like Binnie's in this s outrage, for molesting two young players country? What did we do to deserve him? Why aren't we making more use of him? Solomon is polite to Binnie but still asks Charter s. 11(b) shouldn't apply to speeding offences he s. 11(b) right under the Charter of Rights and Freedoms to be tried within a reasonable time is an impor- tant safeguard to protect significant Social Justice Sopinka stated in R. v. Morin: "The right to security of the person is protected in s. 11(b) by seeking to minimize the anxiety, concern, and stigma of exposure to criminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pretrial incarceration and restrictive bail conditions. . . . The right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh. Society as a whole has an interest in seeing that the least fortunate of its citizens who are accused of crimes are treated humanely and fairly. In this respect, trials held promptly enjoy the confidence of the public." But how do these societal interests apply in speed- ing and other minor traffic or regulatory offences? How should we apply s. 11(b) to such offences? That' tion the Court of Appeal for Ontario will be grappling with in a matter involving the City of Toronto against Richard Hariraj and Isidro Andrade at some point this year or in 2013. Hariraj received a speeding ticket on March 12, 2009. He s the ques- filed a notice of intention to appear for trial within a week of having received the ticket but officials didn't issue and mail the notice of trial date until May 20, 2009. A trial date was set for Feb. 16, 2010, a fact that led the justice of the peace to issue a stay after remarking that such a "fairly simple" matter ought to have been "done within six months," although he then revised that to "no more than nine months." Andrade received a ticket for obstruct plate and unrea- The court viewed the institutional delays of nine and 10 months for the two cases as unreason- able and in weighing the competing interests concluded that "the interest of the defendants and society in a prompt societal interest in bringing the accused persons to trial. trial outweighs the vincial court judges taking the Charter seriously. Most people don't venture before more senior judges and it' It's good to see justices of the peace and pro- " Alan Shanoff Charter? Are they learning disrespect for the Charter after seeing it used for such trifling matters? Are they learning disrespect for our laws? The Highway Traffic Act is an important piece of rience for them to observe the application of the Charter in the junior courts. But what is it that people in these courts are learning about the s surely an important learning expe- legislation governing motorists' use of the roads and highways. But many offences are of a minor nature with no risk of any restriction on liberty and little prospect of degradation of the evidence let alone any potential anxiety or stigma from exposure to the proceedings. The offences can hardly be described as criminal or penal in nature. They're minor and don't merit the same applica- tion of Charter rights as do more significant offences where prosecution can lead to anxiety and stigma. As stated by former Supreme Court justice Peter Cory in R. v. Wholesale Travel Group Inc., "a Charter right may have different scope and implications in a regulatory context than in a truly criminal one. posed in its August 2011 report on the modernization of the Provincial Offences Act, there' sonable noise, two minor Highway Traffic Act offences, on July 4, 2008. He filed a notice of intention to appear for trial on Aug. 1. But officials didn't issue and mail the notice until Nov. 3 with a trial date set for July 2, 2009. Again, a justice of the peace issued a stay after remarking that "anything past 10 months is certainly too long to be waiting to be dealt with." In both cases, the prosecutor argued the court should deduct two months from the period of delay as represent- ing a reasonable intake period. But the remaining delay was deemed unreasonable. Both cases were the subject of an unsuccessful appeal to the Ontario Court of Justice. certain offences, such as speeding, should be subject to an administrative monetary penalty system instead of being handled by summary conviction courts. I' Further, as the Law Commission of Ontario has pro- s a good argument that " tion of s. 11(b) of the Charter to that exception as well. Common sense and an application of the principles LT d add the applica- of proportionality dictate that s. 11(b) shouldn't apply to speeding or similar regulatory offences. To apply it with all of its rigour to such offences will only generate derision for our supreme law. Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is ashanoff@ gmail.com. www.lawtimesnews.com tough questions such as whether manda- tory minimum jail terms shackle judges. of intense public interest. "The problem is the judges are dealing with a very specific fact sit- uation," he said. "Quite often, what they know about a case is a great deal more than what is printed or reported in the news media. So the public is dealing with half a deck of cards." For Binnie, it comes down to a very simple principle: "You have the judges in cases comes to the "There is a spectrum," said Binnie, who noted the importance of heeding judges who are closest to the facts of the case, have the best knowledge of the law, and should have the discretion to hand out sentences using the guidelines set down by Parliament. In his view, Parliament and Canadians have made a deal that he feels is working. "When Canada did away with the death penalty, there was a parliamentary agree- ment that a mandatory minimum would be imposed. All right, we will do away with the death penalty, but there will be a mandatory minimum of 25 years without parole for first-degree murder. The price will be life imprisonment." There are occasionally problems with mandatory minimums, even for murder. He cited the case of Robert Latimer, the man who asphyxiated his daughter because he wanted to put her out of her pain. Latimer received a 10-year jail sentence. It' discretion by judges and the inflexibility of mandatory minimum sentences for murder?" Binnie asks Solomon, who' "Where do you draw the line between open s still controversial. answer that question than any of us. Thankfully, we have judges such as Binnie s no more able to to do that kind of search for the appropriate sentence rather than leaving it up to inflex- ible ideologues to decide for us. LT Richard Cleroux is a freelance reporter and col- umnist on Parliament Hill. His e-mail address is richardcleroux@rogers.com. u Letter TO THE EDITOR LETTERS.indd 1 TIME TO CHANGE LSUC NAME I applaud the efforts of the lawyers in the Department of Justice to formally raise the issue of changing the name of the Law Society of Upper Canada to reflect a modern one (see "Should LSUC change its name?" on April 23). On April 25, I raised the issue of amending the current motion so that the updated name could be something like the Ontario Lawyer and Paralegal Regulatory Authority. I agree with those who say this deserves careful consid- eration. But in my experience, every effort I have made to have the issue properly addressed by the LSUC has been stonewalled. You have to wonder if the lawyers and elite folks who oppose the change want to identify with Upper Canada College or some other private school. I first raised the issue of changing the name of the LSUC 3/1/12 4:39 PM PAGE 7 with former attorney general Ian Scott in 1986 when I was a law student. He sympathized but shrugged his shoulders and said to take it up with the LSUC. Then I raised it with Scott and management at the Ministry of the Attorney General in 1988 when I was an articling student with the policy development branch that was responsible for drafting amendments to the Law Society Act. In September 1989, I raised the issue with then-LSUC treasurer Allan Rock. There were about 500 students in the room at the time and I was loudly booed by most of them. I discussed the issue of an LSUC name change with classes I taught on law at York University between 1991 and 2009. Then in 2011, I taught students in the busi- ness law and paralegal programs at Humber College who complained about the name. Last year during the 2011 bencher election campaign, I made the issue a prominent part of my platform. As someone who has fought for social justice, I think that language is extremely important. Feminists have pointed this out for decades. As I point out to my daughters, change happens slowly and incrementally. Pay equity was important as a phrase in 1986 when Ontario' Act was passed even though in practice true fairness still has not been realized in many private-sector workplaces. Still, we would not have come as far without the act. In all my teaching and work, I stress the importance of history and tradition. But when does the tradition become absurd? I did not win a position at Convocation. But I think it is time for a change. David McRobert Peterborough, Ont. s Pay Equity

• Cover