LITTLE LEEWAY IN MANDATORY MINIMUMS: CROWN

Ministry Policies Provide Discretion Only in 'Exceptional Circumstances'

Mandatory sentences transfer, but do not eliminate, discretion.

Despite notable comments from the Alberta Court of Appeal last week,
that's the view of some people on the defence side of the criminal
law bar as well as those opposed to the idea of trying to crack down
on wrongdoing through harsh sentencing regimes.

They include Marc Mauer, executive director of the U.S. organization
the Sentencing Project, who made the comment about discretion before
Canada's standing committee on legal and constitutional affairs.

Mauer, of course, can speak based on his country's long experience
with sometimes-harsh mandatory minimum sentences.

As he noted in his testimony, a perhaps good example of problematic
results was the case of a 24-year-old music producer with no prior
convictions who received a 55-year sentence for three related
marijuana sales of about $350 each.

As he possessed a weapon during the sales, the court had to give the
man consecutive penalties despite the fact he didn't use or threaten
to use the weapon.

Here in Canada, lawyers are getting used to the idea of a rash of
laws that remove judicial discretion by imposing mandatory minimums
or, in the case of several serious personal injury offences,
precluding the use of conditional sentences.

Sentencing floors have been around for a long time, but with the
federal government's crackdown on crime, defence lawyers are facing
new challenges in achieving what they would argue is the fair and
just result for their clients.

Nevertheless, many counsel still feel there are options on the lines
of the argument advanced by Mauer, namely that new laws simply
transfer discretion.

In Canada's case, they believe the wiggle room rests with the Crown
in terms of how prosecutors decide to advance their case.

At the recent Criminal Lawyers' Association conference in Toronto,
Paola Konge, a Hamilton, Ont., defence counsel, outlined some of the
areas for challenging or influencing Crowns' decisions.

"Of course, what charges a defendant faces, how the Crown will
proceed, and what the Crown will accept pleas to is the subject of
Crown discretion," she wrote in a paper accompanying the session on
mandatory minimums.

"If a client is charged with an offence that carries a mandatory
minimum sentence, an important part of the representation will
probably be negotiating with the Crown. Capitalize on the weaknesses
of the case and be creative in order to avoid mandatory minimum sentences."

A key issue within the Crown's purview is whether to proceed by
either summary conviction or indictment.

"The difference can be stark; for example, a conviction for
possession of a loaded, restricted or prohibited firearm (s. 95) does
not carry a minimum sentence when the Crown proceeds summarily but
attracts a three-year minimum sentence when the Crown proceeds by
indictment," Konge wrote.

"The Crown's election is therefore particularly important in these
cases and effort should be directed to persuading the Crown as to the
mode of election based on the applicable principles."

Other options for defence lawyers include negotiating, through plea
bargain discussions, for conviction to a lesser offence for which a
mandatory minimum sentence doesn't apply.

As well, counsel can attempt to challenge what they consider to be
harsh sentences based on a number of grounds under the Charter of
Rights and Freedoms: s. 12 dealing with cruel and unusual punishment;
s. 7 related to the right to liberty and the principles of
fundamental justice; and s. 9 on the right not to be arbitrarily
detained or imprisoned.

But as Jeffrey Levy, an assistant Crown attorney with the Ministry of
the Attorney General's guns and gangs initiative, pointed out at the
CLA conference, defence lawyers will have to work pretty hard to
convince prosecutors to exercise that discretion in their favour.

He noted that in two areas he has knowledge of, guns and gangs and
certain sexual assault cases, the ministry's policy is that when
there's a reasonable prospect of conviction, assistant Crowns must
not reduce or withdraw the charge unless "exceptional circumstances"
apply. Even then, they have to get permission of their Crown attorney, he said.

As a result, if someone is facing a handful of charges related to a
gun, the Crown can't withdraw the one with a mandatory minimum.

At the same time, despite the fact that both summary conviction or
indictment are available with certain firearms offences, the Ontario
government's policy is to proceed by indictment absent, once again,
exceptional circumstances.

So for defence lawyers, that means they need to be particularly
well-prepared to make their case during meetings with the Crown, Levy said.

In fact, Levy said he has yet to be involved in a case in which he
has reduced the charges. But he noted that one matter Konge's firm
took on had the makings of a viable argument for proceeding in a
manner more favourable to the defence.

According to Konge, the case began with a domestic dispute that
resulted in a fight between a man and his wife's new boyfriend. When
the accused returned home, police arrived there to look for a knife.

But after securing a consent search, officers came across a firearm
as they looked through his possessions, resulting in a weapons charge
against the man.

It turned out, however, that he had inherited a car containing the
weapon from a relative in Florida and wasn't aware of it when he got
the vehicle. In response, the Crown agreed not to pursue the
mandatory minimum sentence, Konge notes.

But the bottom line, according to Levy, is that defence lawyers have
fewer options, something Konge says she accepts. "I think at the end
of the day, we'll be setting more trial dates," she says. "I think
that's indisputable."

"There's no downside to the client at that point," she adds. In
addition, Crowns face guidelines on what to do once someone is
convicted of an offence with a mandatory minimum.

According to Levy, the policy is to follow the Supreme Court of
Canada's line of thinking in R. v. Morrisey, in which former justice
Louise Arbour called mandatory minimums an "inflationary floor"
available in most cases only to the least serious offender.

That means, Levy said, that Crowns will likely seek a sentence beyond
the minimum depending on the circumstances.

A key question, however, involves the degree to which the courts have
the opportunity to review Crowns' exercise of their discretion.

But as Konge pointed out in her paper, the courts have so far largely
shied away from aggressive intervention on that question. Still, she
referred to a few cases that have "led some to believe that perhaps
the door is not shut as firmly as thought."

On those questions, however, Ontario judges have tended to rule that
they have little leeway. As Justice Michael Harpur of the Ontario
Court of Justice noted last month in R. v. Schwartz, "the matter is
out of my hands" on the issue of reducing a defendant's sentence
despite his view that the mandatory minimum "was a less suitable
sentence than imprisonment within the intermittent range."

The matter involved Randy Schwartz' conviction for driving with a
blood alcohol concentration of 120 milligrams of alcohol per 100
millilitres of blood.

He had other convictions related to similar offences dating back
almost 20 years, which gave the Crown the opportunity to seek a
minimum punishment of 120 days in jail rather than the intermittent
penalty of 30 to 60 days the defence was proposing.

Given the passage of time since those prior convictions and the fact
that Schwartz would lose his job and his home by going to jail, his
counsel, Richard Aitken, challenged the Crown's actions based on
Charter arguments.

But in his ruling, Harpur rejected Aitken's argument that a Crown's
decision to seek an increased penalty based on prior convictions is a
non-core prosecutorial function that's subject to review on a
standard of reasonableness.

"To so hold is to place the court in the untenable position of
second-guessing prosecutors in the making of decisions properly
falling within their powers, a supervisory role said by both the
Krieger [v. Law Society of Alberta] and [R. v.] Power decisions to be
'beyond the legitimate reach of the court.'"

As a result, Harpur said he had no choice but to impose the minimum
given that Schwartz "has not established flagrant impropriety or
abuse of process by the Crown in its decision to give notice, nor of
cruel and unusual punishment in the result."

So there doesn't appear to be much lawyers can do in such cases. Of
course, the same reasoning applies in other areas where the
government has cracked down, including its bid to restrict
conditional sentences.

In a case this year, R. v. Bankay, the Ontario Court of Appeal varied
the sentence handed down by Justice June Maresca of the Ontario Court
of Justice after a woman pleaded guilty to aggravated assault.

Maresca, the appeal court ruled, imposed "what amounted to a
disguised conditional sentence" by granting a probation order with a
term of six months of house arrest.

"It was an error of law to impose a sentence that circumvented
Parliament's decision to exclude conditional sentences for this
offence," the appeal court ruled.

As a result, people like Konge say they may have to take a longer
view to get the types of dispositions they believe are just.

"I think the bottom line is if we want to see changes to mandatory
minimum legislation, we all need to become members of a political
party that will make that happen." Changing the political climate is
something Mauer hopes will happen sooner rather than later.

"It is long past time to restore a better balance of the use of
discretion within the criminal justice system as a means of producing
more constructive sentencing outcomes," he wrote in a submission to
the parliamentary committee that noted the problems he sees with the
U.S. approach to criminal justice.

"I hope that the experience in recent decades in the United States
will prove instructive."