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Top court recommends ‘safety valves’
By Cristin Schmitz
April 29 2016 issue

The Supreme Court’s invalidation of two excessively punitive and overbroad Harper government sentencing initiatives will trigger court action, and ramp up pressure on Parliament to legislate a general “safety valve” enabling judges to impose lesser sentences in cases where mandatory minimum penalties create injustice, lawyers predict.

“Together the two decisions speak to the importance of discretion in sentencing judges to fashion fit and proportionate sentences and ensure that sentences do not fall afoul of the requirements of the Constitution,” said Jill Presser of Toronto’s Presser Barristers, counsel for the successful Ontario respondent, Hamidreza Safarzadeh-Markhali.

Counsel say Chief Justice Beverley McLachlin’s April 15 judgments in separate cases from Ontario and British Columbia are the top court’s most explicit warning yet that stringent mandatory sentencing measures going well beyond what’s necessary to achieve Parliament’s aims are apt to be struck down as a violation of the Charter’s s. 7 guarantee of fundamental justice or s. 12 prohibition against cruel and unusual punishment, or both.

It also marks the first time that the Supreme Court has advised Parliament that creating a judicial safety valve could help to make otherwise dubious mandatory minimum sentences constitutionally compliant.

Both the Uniform Law Conference (composed mostly of Crowns and senior justice officials) and the Canadian Bar Association have asked the government to do so, but the idea was flatly rejected three years ago by then Justice Minister Peter MacKay.

The top court split 6-3 to restore a British Columbia trial decision, and affirm 9-0 an Ontario Court of Appeal ruling, that respectively struck down a one-year mandatory minimum sentence for possession of drugs for trafficking and a Criminal Code restriction on credit judges can give to offenders for the time spent in pre-sentence custody.

“The reality is this: mandatory minimum sentences that, as here, apply to offences that can be committed in various ways, under a broad array of circumstances and by a wide range of people are vulnerable to constitutional challenge,” the chief justice explained in R. v. Lloyd [2016] SCC 13.

“This is because such laws will almost inevitably include an acceptable reasonable hypothetical for which the mandatory minimum will be found unconstitutional. If Parliament hopes to sustain mandatory minimum penalties for offences that cast a wide net, it should consider narrowing their reach so that they only catch offenders that merit the mandatory minimum sentences,” she advised. “Another solution would be for Parliament to build a safety valve that would allow judges to exempt outliers for whom the mandatory minimum will constitute cruel and unusual punishment. Residual judicial discretion for exceptional cases is a technique widely used to avoid injustice and constitutional infirmity in other countries.”

The past-chair of the CBA’s national criminal justice section, Eric Gottardi of Vancouver’s Peck and Company, urged the federal Liberal government to move on the top court’s endorsement of judicial safety valves by enacting, as its own, former Liberal Justice Minister Irwin Cotler’s private member’s Bill C-669 (which died on the order paper last year). The proposed Judicial Independence Act would allow judges to vary mandated sentences, such as mandatory minimums, when doing so is deemed “just and reasonable.” But judges would also have to provide written reasons when derogating from the prescribed sentence.

“My message to the government would be, your own former minister had the perfect answer right there,” Gottardi told The Lawyers Weekly. “Just revive the bill, and put that through, and you’ll have a fix…you’ll have a really workable solution for judges going forward.”

In a statement, Justice Minister Jody Wilson-Raybould said all mandatory minimum penalties are being examined as part of her “broad review of the changes in our criminal justice system and sentencing reforms over the past decade as well as …our litigation strategy. It is important to ensure that all of our laws, including [mandatory minimum penalties], are effective in meeting their objectives, promote public security and are consistent with our constitutionally protected rights. The government supports the use of mandatory minimum penalties for the most serious crimes, and crucially, only where they are consistent with the Charter.”

Laura Track, staff counsel with the intervener B.C. Civil Liberties Association (BCCLA), suggested that “after Lloyd, most, if not all, of the mandatory minimum sentences remaining on the books are vulnerable to constitutional challenge.”

However, the chief justice dashed the hopes of the BCCLA and others who have long argued that the top court should adopt a more “robust” view of the guarantee of fundamental justice in s. 7 of the Charter by enabling that section to be used to challenge sentences that are disproportionate to the seriousness of the offence and its circumstances. They have urged that the principle of proportionality in sentencing — i.e. that the judge should impose a fit sentence having regard to all relevant factors — is a principle of fundamental justice under s. 7. But that proposition was firmly rejected by Chief Justice McLachlin who called proportionality in sentencing “an admirable guide” for judges but “not an overarching constitutional principle that allows judges to subvert the norms of punishment enacted by Parliament.”

The chief justice reaffirmed, instead, that overly severe sentences can only be successfully attacked when they meet the established, and more stringent, standard of gross disproportionality — thus amounting to cruel and unusual punishment banned by s. 12 of the Charter.

In the court’s unanimous ruling in Safarzadeh-Markhali, Chief Justice McLachlin struck down s. 719(3.1) of the Criminal Code (part of the Conservative government’s signature Truth in Sentencing Act), which barred judges from giving enhanced credit of 1.5 days per one day spent in pre-sentence custody (rather than on a 1:1 basis), where an accused was denied bail primarily because of his or her prior criminal record: R. v. Safarzadeh-Markhali [2016] SCC 14.

The chief justice ruled that a blanket denial of enhanced credit due to prior convictions violates the Charter’s s. 7 guarantee of fundamental justice because it catches people in ways that have nothing to do with the provision’s purpose, which aimed to enhance public safety and security. Nor could the court uphold the infringement under s. 1 of the Charter, as reasonable and demonstrably justified in a free and democratic society, since it unnecessarily deprives of liberty those offenders who have neither committed violent offences, nor present a risk to public safety, she held.

Presser predicted Safarzadeh-Markhali “will result in shorter sentences for thousands of people across the country by a factor of up to years going forward. It may also result in a number of sentence appeals where accused persons who did not get credit at a rate of 1.5:1, by operation of the provision that has now been struck down, seek appellate review and appellate orders for enhanced credit.”

Moreover, she suggested that those serving unconstitutional sentences under the invalidated law, whose appeal period is over, can apply for an extension of time to file their notice of appeal. “I think that legislation that is unconstitutional is always unconstitutional, and always has been unconstitutional — the Charter is always speaking,” she explained by e-mail.

Presser also predicted the imminent demise of the other Conservative era prohibition on enhanced credit for pre-sentence custody, which kicks in when bail is denied because of previous bail breaches. The Ontario Court of Appeal is hearing two cases involving attacks on the constitutionality of that provision — which was previously upheld by the B.C. Court of Appeal.

In Lloyd, the judges split 6-3 (Justices Richard Wagner, Clement Gascon, and Russell Brown dissenting) to strike down, as a violation of s. 7 of the Charter, the one-year mandatory minimum sentence in s. 5(3)(a)(i)(D) of the Controlled Drugs and Substances Act for possessing, for the purposes of trafficking, a Schedule 1 or 2 drug (including cannabis) in circumstances where the offender has been convicted in the previous 10 years of any drug offence (except possession).

The chief justice held that the impugned provision not only catches the serious drug trafficking that is its proper aim, but also conduct that is much less blameworthy — rendering it constitutionally vulnerable.

“At one end of the range of conduct caught by the mandatory minimum sentence provision stands a professional drug dealer who engages in the business of dangerous drugs for profit, who is in possession of a large amount of drugs, and who has been convicted many times for similar offences,” she wrote.

“At the other end of the range stands the addict who is charged for sharing a small amount of drugs with a friend or spouse, and finds herself sentenced to a year in prison because of a single conviction for sharing marijuana in a social occasion nine years before. Most Canadians would be shocked to find that such a person could be sent to prison for one year.”

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