Mandatory Minimum Sentences:
Some thoughts on their Impact
Crown/Defence Conference
October 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.
8
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
9
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
10
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
The person committed the offence for the benefit of, at the
direction of, or in association with a criminal organization,
2 Year Minimum
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 used or threatened to use violence in committing the
offence,
The person committed the offence in a prison, or on its grounds, or
The person carried, used or threatened to use a weapon in
committing the offence, or
The person used the services of a person under the age of 18
years, or involved such a person, in committing the offence.
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.
11
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)allProduction
- Marihuana
Mandatory
Minimum minimum
Penalties
• Almost
of the production
cases–will
have a mandatory
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 to 200 and
PPT
6 to 200 and
PPT and
aggravating
factor
201 to 500
6 mths
√
9 mths
12 mths
18 mths
24 mths
36 mths
√
√
201 to 500 and
aggravating
factor
More than 500
√
√
More than 500
and aggravating
factor
√
14
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.
15
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
16
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).
17
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)
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