Mandatory Minimum Sentences:Some thoughts on their Impact

Crown/Defence ConferenceOctober 17, 2013

Winnipeg Manitoba

Introduction

• Along with those principles of sentencing set out in Criminal Code s.718-718.2- is the principles of proportionality

• recognized repeatedly by the SCC- • Constitutional aspect confirmed in R. V.

Ipeelee- proportionality has Charter s. 12 and s. 7 implications

Introduction

• “The fundamental principle of sentencing is that the sentence must be proportionate to both the gravity of the offence and the degree of responsibility of the offender...” para 36

• ” The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing — the maintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord to the various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle of proportionality. Proportionality is the sine qua non of a just sanction”- Para 37

Introduction

• MMS- prior to 2000- were relatively rare• Since then- about 50 in Criminal Code and

CDSA- firearms and sexual offences• A transfer of discretion- from a Judge

(decisions subject to review)• To a Crown Attorney- decisions not subject to

review

Some Topics for our Discussion

Can a Judge truly account for the “moral culpability” of an accused when imposing a MMS?How do Crown Counsel exercise their discretion when seeking a MMS?Should the Code include and “exceptional circumstances” clause?How do defence counsel approach the Crown and the Court re these issues?

Hot off the Presses!

• R. v. Adamo 2013 MBQB 225 -Suche J.• Offender with cognitive and mental health

issues sought an exemption form MMS for the offence per s.95(2)(a)(i)- personal circumstances personal described “At best, he can be said to have fallen through the cracks; and at worst, he is the victim of systemic failures”- para 63

New case Law

• A sentence of 3 years was considered to be “disproportionate” and “extremely harsh” given the offenders’ mental health issues

• And would be detrimental to the offenders’ rehabilitation

• MMS fails to take into account the “reduced moral blameworthiness” of this offender

• Breaches of Charter s. 7, 12 and 15 found- not saved by s. 1

• 6 month sentence imposed

Proclamation

• CDSA amendments creating mandatory minimum penalties come into force November 6, 2012.

• Criminal Code amendments reducing the availability of conditional sentences come into force November 20, 2012.

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Key Changes

• A number of Schedule III drugs have been moved to Schedule I:– All amphetamines, including ecstasy (MDMA)– Rohypnol (Flunitrazepam)– GHB

• The maximum sentence for production of marihuana has increased from 7 to 14 years.

• Many commercial drug offences now have mandatory minimum sentences.• Reduced availability of CSOs.• Mandatory minimums will apply in essentially two ways:

– By nature of the offence, or– By the presence of aggravating factors

What Has Not Changed?• Simple possession penalties remain the same.

• Special sentencing provisions for cannabis trafficking/PPT remain:– Five year less a day maximum sentence for trafficking or PPT for 3 kgs or less

of marihuana and 3 kgs or less of hashish

• Sentencing remains the same for Schedule III, IV and V drugs and for precursors in Schedule VI.– Other than changes to availability of CSOs

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5(1) Trafficking and 5(2) PPT – Mandatory Minimum Penalties

• Application of new sentences:– All Schedule I drugs (e.g. cocaine, heroin, methamphetamine, ecstasy)– Schedule II marihuana offences of more than 3 kgs; hashish of more than 3 kgs– Minimums require the presence of an aggravating factor

1 Year Minimum 2 Year MinimumThe person committed the offence for the benefit of, at the direction of, or in association with a criminal organization, The person used or threatened to use violence in committing the offence, The person carried, used or threatened to use a weapon in committing the offence, or The person was convicted of a designated substance offence, or had served a term of imprisonment for a designated substance offence, within the previous 10 years.

The person committed the offence in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of 18 years, The person committed the offence in a prison, or on its grounds, or The person used the services of a person under the age of 18 years, or involved such a person, in committing the offence.

7(1) Production Sentence Based on Aggravating Factors

• The amendments start with a minimum for most production offences which increase based on these aggravating factors:– The person used real property that belongs to a third party in committing the offence,

– The production constituted a potential security, health or safety hazard to persons under the age of 18 years who were in the location where the offence was committed or in the immediate area,

– The production constituted a potential public safety hazard in a residential area, or

– The person set or placed a trap, device or other thing that is likely to cause death or bodily harm to another person at the location where the offence was committed or in the immediate area, or permitted such a trap, device or other thing to remain or be placed in that location or area.

7(1) Production - Marihuana – Mandatory Minimum Penalties• Almost all of the production cases will have a mandatory minimum penalty now.

• Only those of 5 plants or less for personal use will not have MMP.• For production of between 6 and 201 plants, Crown must also prove the

production was for the purpose of trafficking.• Sentence based on:

– Number of plants– Possession for the purpose– Presence of aggravating factors

Marihuana Production Mandatory Minimum Penalties

Plants 6 mths 9 mths 12 mths

18 mths

24 mths

36 mths

6 to 200 and PPT

√6 to 200 and PPT and aggravating factor

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201 to 500 √201 to 500 and aggravating factor

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More than 500 √More than 500 and aggravating factor

√

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Reduction in Availability of CSOs

• Bill C-10 includes significant changes to s. 742.1 (CSOs).• Any offence punishable by a minimum term of imprisonment automatically not eligible for

CSO (742.1(b)).• Offences prosecuted by indictment and punishable by 14 years or more are no longer eligible

for a CSO (742.1(c)).• Terrorism and criminal organization offences, prosecuted by indictment, punishable by 10

years imprisonment, are not eligible for CSO (742.1(d)). • And 742.1(e) says any offence prosecuted by indictment and punishable by 10 years is not

eligible for CSO when:– Resulted in bodily harm– Involved the import, export, trafficking or production of drugs, or– Involved the use of a weapon

• Therefore, virtually all drug trafficking, production, exporting and importing will no longer be eligible for a CSO.

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Drug Offences Eligible for a CSO

• Possession• Double-doctoring• Trafficking/PPT in 3 kgs or less of cannabis (marihuana or hash)• Trafficking/PPT/Import/Export/Production:

– Schedule III Drugs (e.g. LSD, psilocybin) if Crown proceeds summarily– Schedule IV Drugs (e.g. barbiturates) and V drugs, for both summary

conviction and indictable election• Import/Export:

– Schedule V drugs for both summary and indictable election– Schedule VI (e.g. precursors) if Crown proceeds summarily

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Drug Treatment Courts• The mandatory minimum penalties do not apply if the person successfully

completes a drug treatment court program approved by the Attorney General of Canada, or attends a treatment program under section 720(2) of the Code (approved by AG of Province).

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Some Important Dates

• December 1, 1995 – first CSO• • June 16, 1997 - amendment to change CSO requirement to requirement

sentence to be consistent with principles of sentencing (s. 718)• • November 30, 2007 – amendment to restrict CSO from “serious violent

offences, defined in s. 752 • • November 20, 2012 – amendment to change CSO to restrict availability be

definition within the section• Version of section 742.1 from 1995-12-01 to 1997-06-16•

• We must face up to five sentencing truths. • • First, it is notorious amongst judges, of whom there are

now approximately 2,100 in this country at three court levels, that one of the most controversial subjects, both in theory and practical application, is sentencing.

• • That takes us to the second truth. The proposition that if

judges knew the facts of a given case, they would all agree, or substantially agree on the result, is simply not so.

Manitoba Public Prosecutions• The third truth. Judges are not the only ones who know truths

one and two, and thus judge shopping is alive and well in Canada — and fighting hard to stay that way. All lead inescapably to the fourth truth.

• Without reasonable uniformity of approach to sentencing amongst trial and appellate judges in Canada, many of the sentencing objectives and principles prescribed in the Code are not attainable. This makes the search for just sanctions at best a lottery, and at worst a myth. Pretending otherwise obscures the need for Canadian courts to do what Parliament has asked: minimize unjustified disparity in sentencing while maintaining flexibility.

Mb Prosecutions

• The final truth. If the courts do not act to vindicate the promises of the law, and public confidence diminishes, then Parliament will.

• • R.v. Arcand 2010 ABCA 363, paragraph 8

Mb Prosecutions• A relatively new phenomenon in Canadian law, the minimum

sentence is a forceful expression of governmental policy in the area of criminal law. Certain minimum sentences have been successfully challenged under s. 12 of the Charter on the basis that they constituted grossly disproportionate punishment in the circumstances of the case (R. v. Smith, [1987] 1 S.C.R. 1045 (S.C.C.); R. v. Bill (1998), 13 C.R. (5th) 125 (B.C. S.C.)), while others have been upheld (R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90 (S.C.C.)). Absent a declaration of unconstitutionality, minimum sentences must be ordered where so provided in the Code. A judge's discretion does not extend so far as to override this clear statement of legislative intent.

R. v. Nasogaluak 2010 CarswellAlta 268 (SCC) (para 45)

Mb Prosecutions• The formation of public policy is a function of Parliament. It must decide

what the aims and objectives of social policy are to be, and it must specify the means by which they will be accomplished. It is true that the enactments of Parliament must now be measured against the Charter and, where they do not come within the provisions of the Charter, they may be struck down. This step, however, must not be taken by the courts merely because a court or a judge may disagree with a parliamentary decision but only where the Charter has been violated. Parliament has the necessary resources and facilities to make a detailed inquiry into relevant considerations in forming policy. It has the capacity to make a much more extensive inquiry into matters concerning social policy than has the court.

• • R. v. Smith 1987 CarswellBC 198 (SCC) (McIntyre, J. dissenting) (Para 21)

Mb Prosecutions• In imposing a sentence of imprisonment, the judge will assess the

circumstances of the case in order to arrive at an appropriate sentence. The test for review under s. 12 of the Charter is one of gross disproportionality, because it is aimed at punishments that are more than merely excessive. We should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation, and should leave to the usual sentencing appeal process the task of reviewing the fitness of a sentence. Section 12 will only be infringed where the sentence is so unfit having regard to the offence and the offender as to be grossly disproportionate.

R. v. Smith 1987 CarswellBC 198 (SCC) (Lamer, CJC.) (Para 81)

MB Prosecutions

• The criterion of arbitrariness developed by the Supreme Court of the United States pursuant to the Eighth Amendment of their Constitution involved, for the most part, cases that dealt with the validity of the death penalty. In the United States, where criminal law is within the competence of the state legislatures and thus varies from state to state, the judiciary was concerned with possible discrepancies in the imposition of the death penalty throughout their country.

• The judges were also concerned with the fact that the law often leaves in the United States "to the uncontrolled discretion of judges or juries the determination whether defendants committing these crimes should die or be imprisoned", and that one cannot read the history of the Eighth Amendment "without realizing that the desire for equality was reflected in the ban against 'cruel and unusual punishments' contained in the Eighth Amendment": per Douglas J. in Furman v. Georgia, 408 U.S. 238 at 253 and 255, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972). This introduction of arbitrariness for the precise purpose of ensuring equality under the law, however appropriate in the United States, should not simply be transplanted into the Canadian context where the criminal law power is within the competence of the federal government and thus uniform throughout the country.

• R. v. Smith 1987 CarswellBC 198 (SCC) (Lamer, CJC.) (Para 95)

• Section 12 of the Charter provides a broad protection to Canadians against punishment which is so excessive as to outrage our society's sense of decency: Smith, supra, at p. 1072; Goltz, supra, at p. 499; R. v. Luxton, [1990] 2 S.C.R. 711 (S.C.C.), at p. 724. The court's inquiry is focussed not only on the purpose of the punishment, but also on its effect on the individual offender. Where a punishment is merely disproportionate, no remedy can be found under s. 12. Rather, the court must be satisfied that the punishment imposed is grossly disproportionate for the offender, such that Canadians would find the punishment abhorrent or intolerable. As I said in Goltz, at p. 501, "the test is not one which is quick to invalidate sentences crafted by legislators."

R. v. Morrisey 2000 CarswellNS 255 (SCC) (Gonthier, J.) (Para 26)

• While the test is one that attributes a great deal of weight to individual circumstances, it should also be stressed that in weighing the s. 12 considerations the court must also consider and defer to the valid legislative objectives underlying the criminal law responsibilities of Parliament (Goltz, supra, at p. 503). In this regard, Cory J., for the Court in Steele v. Mountain Institution, supra, at p. 1417, stated: It will only be on rare and unique occasions that a court will find a sentence so grossly disproportionate that it violates the provisions of s. 12 of the Charter. The test for determining whether a sentence is disproportionately long is very properly stringent and demanding. A lesser test would tend to trivialize the Charter. [Emphasis added.]

• R. v. Latimer 2001 CarswellSask 4 (SCC) (Para 76)

• In summary, the minimum mandatory sentence is not grossly disproportionate in this case. We cannot find that any aspect of the particular circumstances of the case or the offender diminishes the degree of criminal responsibility borne by Mr. Latimer. In addition, although not free of debate, the sentence is not out of step with valid penological goals or sentencing principles. The legislative classification and treatment of this offender meets the requisite standard of proportionality (L. (T.P.), supra, at p. 339). Where there is no violation of Mr. Latimer's s. 12 right there is no basis for granting a constitutional exemption.

R. v. Latimer 2001 CarswellSask 4 (SCC) (Para 87)

• It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.

Boucher v. R.,1954 CarswellQue 14 (SCC) (Rand, J.) (Para. 26)

• However, the repudiation of a plea agreement is not just a bare allegation. It is evidence that the Crown has gone back on its word. As everyone agrees, it is of crucial importance to the proper and fair administration of criminal justice that plea agreements be honoured. The repudiation of a plea agreement is a rare and exceptional event. In my view, evidence that a plea agreement was entered into with the Crown, and subsequently reneged by the Crown, provides the requisite evidentiary threshold to embark on a review of the decision for abuse of process. Further, to the extent that the Crown is the only party who is privy to the information, the evidentiary burden shifts to the Crown to enlighten the court on the circumstances and reasons behind its decision to resile from the agreement. That is, the Crown must explain why and how it made the decision not to honour the plea agreement. The ultimate burden of proving abuse of process remains on the applicant and, as discussed earlier, the test is a stringent one. However, if the Crown provides little or no explanation to the court, this factor should weigh heavily in favour of the applicant in successfully making out an abuse of process claim.

R. v. Nixon 2011 CarswellAlta 988 (SCC) (Cjarron, J.) (Para 63)

• As I have already noted, the common law doctrine of abuse of process has found application in a variety of different circumstances involving state conduct touching upon the integrity of the judicial system and the fairness of the individual accused's trial. For this reason, I do not think that it is helpful to speak of there being any one particular "right against abuse of process" within the Charter. Depending on the circumstances, different Charter guarantees may be engaged. For instance, where the accused claims that the Crown's conduct has prejudiced his ability to have a trial within a reasonable time, abuses may be best addressed by reference to s. 11(b) of the Charter, to which the jurisprudence of this Court has now established fairly clear guidelines (Morin, supra). Alternatively, the circumstances may indicate an infringement of the accused's right to a fair trial, embodied in ss. 7 and 11(d) of the Charter. In both of these situations, concern for the individual rights of the accused may be accompanied by concerns about the integrity of the judicial system. In addition, there is a residual category of conduct caught by s. 7 of the Charter. This residual category does not relate to conduct affecting the fairness of the trial or impairing other procedural rights enumerated in the Charter, but instead addresses the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process.

R. v. O'Connor 1995 CarswellBC 1098 (SCC) (L'Heureux-Dubé J.) (Para.73)

Saul Simmonds

Saul Simmonds

Saul Simmonds