Such a waste: mandatory minimum sentences

As usual in matters of incarceration, we are a few years behind our American cousins, but still rushing headlong down the same terrible path. Is this future of the mandatory minimum sentences in our Safe Streets and Communities Act? 

Such a waste. Let the judges do their jobs. Leave them the discretion so they can apply judgment where judgment is needed.

The Economist, "Throwing Away the Key," Nov. 13, 2013

Senior Canadian lawyers call for exemptions to mandatory minimum sentences

Mandatory minimum sentences have found favour with legislators around the globe, and Canada is no exception. However, a group of senior Canadian lawyers is recommending that there be statutory exemptions to such sentences.

We are at the anniversary of new mandatory minimum prison sentences in Canada for certain crimes, including particular drug offences and gun offences. Criminal defence lawyers have long criticized mandatory minimums. Nevertheless, Canada’s Justice Minister defends the approach and is resisting calls for exemptions.

Mandatory minimum sentences are also being challenged in the courts. A British Columbia Provincial Court judge has ruled that a mandatory minimum prison term was unconstitutional in a case where a man with no criminal record was convicted of a gun offence.

Lawyers’ group criticizes mandatory minimum sentencing at meeting in Victoria

The Uniform Law Conference of Canada, a group of senior lawyers from across the country – including both criminal defence counsel and Crown prosecutors – recommended exemptions to mandatory minimum sentences at a recent meeting in Victoria, British Columbia.

The group, which argues that mandatory minimum sentences fail to allow for the proper exercise of judicial discretion, noted that unlike other Commonwealth countries, Canada does not have statutory exemptions to the minimums.  Those exemptions in other countries can be invoked to remedy the unjust application of mandatory minimums.

The Lawyers Weekly, a national newspaper serving the legal profession, reported that federal Justice Minister Peter MacKay opposes such exemptions and defends his government’s implementation of mandatory minimum sentencing for offences that are considered “abhorrent and corrosive to society.”   

British Columbia judge rules mandatory minimum sentence for gun offence unconstitutional

Mandatory minimum sentences are also a concern for some Canadian judges. A British Columbia Provincial Court judge ruled that a three-year mandatory minimum prison sentence for a gun offence violates the Canadian Charter of Rights and Freedoms, in particular the principles of fundamental justice, and the right to be free of cruel and unusual punishment. The judge found that the minimum was “harsh, or excessive, or even unfit for this individual applicant.”  The accused, who had been convicted of possession of a loaded and prohibited firearm, had no criminal record, was making child support payments, and was employed as an apprentice electrician.

More recently, a Manitoba judge also found the minimums offended the Charter of Rights for similar reasons, and also added that they offend the right to equal treatment before the law.

Anyone arrested or charged in relation to a criminal offence – including a gun or drug offence – is strongly advised to retain defence counsel. At all stages of the criminal justice process, from arrest through trial (and sentencing, where relevant), an experienced lawyer can protect the interests of the accused and mount a strong defence, based on the unique facts of the case. The existence of mandatory minimum sentences for certain offences increases the importance of securing proper legal representation.

Ann Pollak, British Columbia & Yukon Criminal Defence Lawyer

B.C. could pay millions in refunds for drunk driving fines

B.C. could pay millions in refunds for drunk driving fines

Congratulations are certainly due for Vancouver lawyer Paul Doroshenko who took on the Superintendent of Motor Vehicles and compelled the exercise of administrative discretion in the application of administrative penalties for drivers who fail or refuse roadside tests.  This will make the application of those penalties meaningful, and at least gives hope to those who have been unfairly punished.  The return of discretion enhances fairness in administrative decisions.

A solid win. Well done.  Take the rest of the weekend off.

New law for self-defence and defence of property

New Citizen’s Arrest and Self-defence Act is in effect as of Monday, March 11, 2013.  It introduces a new concept to the law in Canada:  arrest within a reasonable time.  It also aims to simplify the self-defence sections, which have given rise to some of the most mind-bending legal reasoning in Canadian law.

Prior to these amendments, the law of self-defence was a tangled bramble bush of special considerations, such as whether the accused provoked the attack, or reasonably believed his or her life was in danger, and whether the use of force was no more than necessary.  This language has been greatly simplified to consider whether the accused’s actions were “reasonable in the circumstances.”

The words defining self-defence might be simpler, but the interpretation and application of those words might prove to be just as difficult as the previous bramble bush.  Time will tell.

Until now, any private citizen had the power to arrest someone caught in the act of committing a crime in relation to the private citizen’s property, but there was no power to do so after the fact. 

In recent years some cases attracted a lot of attention because of this law.  In 2009, a Toronto storeowner pursued a shoplifter, chasing him down the street to arrest him, and was himself charged with assault and forcible confinement.  Although we have yet to see how the courts will interpret “arrest within a reasonable time,” likely that storeowner would not have been charged under the new law.

We could expect that a “reasonable time” will be longer in more remote locations, where the police response time might be expected to be longer.

Which law applies to cases that are already before the courts is a matter for the lawyers to work out.

Ann Pollak is a criminal defence lawyer in Burnaby who represents clients in Peace Country and Yukon.  www.northerndefencelaw.com

© Ann Pollak 2013