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Report urging ‘safety valve’ likely tough sell with MacKay

Justice minister cool to allowing judges leeway in ‘substantial and compelling circumstances’

By Cristin Schmitz

August 30 2013 issue

Eric Gottardi, seen above in downtown Victoria, B.C., is the chair of the Canadian Bar Association’s national criminal justice section and a member of the Uniform Law Conference of Canada working group on a statutory exemption for mandatory minimum penalties. [Photo by Diana Nethercott for The Lawyers Weekly]
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A prestigious group composed mostly of senior Crowns and justice policy officials has created a blueprint for adding a statutory safety valve to Canada’s fast-growing regime of mandatory minimum penalties (MMPs).

But Justice Minister Peter MacKay told The Lawyers Weekly he doesn’t agree with the group, known as the Uniform Law Conference of Canada, about the merits of creating general statutory exemptions that would empower trial judges to grant relief from most of Canada’s 66 MMPs by reducing sentences in “substantial and compelling circumstances.”

“I’m not in favour of general exemptions,” the new justice minister responded, when asked to comment after his speech to the Canadian Bar Association’s conference here Aug. 19.

“I think that the mandatory minimums that are in place now are a reflection of the harm done to society, and the need to reflect that in sentences,” the former Nova Scotia Crown attorney explained. “And the issue of deterrence is one that people sometimes don’t want to talk about, but general and specific deterrence, I can assure you, [are] applied every day in courtrooms across the country, and mandatory minimums help in that regard, in my view.”

Alluding to the Obama administration’s recent announcement that the U.S. is backing away from MMPs (see related story, p. 4), MacKay stressed that the MMPs in the Criminal Code and Controlled Drugs and Substances Act (CDSA) do not compare in scope and severity to the numerous lengthy MMPs south of the border.
“What we have done is to continue the practice of putting in place mandatory minimums for violent offences, and offences that society has really highlighted as abhorrent and corrosive to society,” MacKay said.

However, the ULCC’s recently adopted, but as-yet unpublished report on “Statutory Exemptions to Mandatory Minimum Penalties” — obtained by The Lawyers Weekly — points out that Canada has more MMPs than England and Wales, South Africa, Australia and New Zealand. Canada also stands alone in not having a comprehensive statutory exemption provision enabling trial judges to adjust sentences downward where the MMPs would be clearly unjust (the only exception for adults is a recently enacted CDSA exemption if an offender successfully completes an addiction program administered by a drug treatment court).

That comparative harshness and perceived unfairness prompted the CBA in 2011 to introduce a resolution calling on the ULCC to create a working group to examine the issue of statutory exemptions to MMPs.

The ULCC is highly influential. Its work is done by delegates appointed by its member governments, and the criminal section recommends changes to federal criminal legislation based on identified deficiencies, defects or gaps in the existing law, or based on problems created by judicial interpretation of existing law.

The resulting report from the working group — co-authored by two defence counsel and a dozen highly-placed Crowns and criminal justice policy officials from B.C., Alberta, Saskatchewan, Manitoba, Ontario, Quebec, Justice Canada, and the Public Prosecution Service of Canada — was accepted Aug. 15 by a substantial majority of delegates at the annual closed-door meeting of the ULCC’s criminal law section in Victoria, B.C.

Underpinned by Fraser Valley University Professor Yvon Dandurand’s comparative research and analysis of MMP exemptions elsewhere in the world, the working group’s report concludes that a workable and constitutional approach to MMPs that would also be in line with existing sentencing principles would give judges discretion to depart from MMPs if they find “substantial and compelling circumstances” (except in murder, and possibly impaired driving cases).

Given the political sensitivities, the ULCC report highlights the advantages of creating a generalized exemption to MMPs, but does not purport to tell the federal government that it should create such an exemption.

“The report itself doesn’t advocate for, or recommend that, Canada should have [an exemption],” explained working group member Eric Gottardi, who also chairs the CBA’s national criminal justice section. “But it does a lot of legwork for the government, if the government were to decide Canada should have one.”

The CBA vigorously opposes MMPs as counterproductive, but “coming from the working group’s perspective…we understand that they are here, and that they’re probably here to stay for a long time,” Gottardi said.

Whether to have MMPs, or craft an exemption, are political and policy decisions for the federal government to make, he added. “If they want to stick with that, they can. I think the American experience shows that that approach is not going to work long term. But in the short term I think we would want to count ourselves in the same company as other common law countries like Britain and the [United] States, and Australia and New Zealand…who have a similar regime, but they allow a safety valve, they allow for factual outliers where a particular injustice might arise, especially in a country where its aboriginal population is hugely and unfairly represented in the prison system.”

The working group examined nine types of exemption schemes used elsewhere, but ultimately favoured the “substantial and compelling circumstances” standard which would permit the individual circumstances of the offender and offence to be considered.

Such an exemption would apply only in exceptional cases. The bar is higher than the “demonstrably unfit” threshold required to succeed in ordinary sentence appeals, but lower than the “cruel and unusual punishment” prerequisite for Charter relief.

The working group recommends that if an exemption is enacted, it should include a non-exhaustive list of factors to guide trial courts and promote a uniform approach. These factors would include: the offender’s age, health and mental capacity (taking account of cognitive deficiencies caused by Fetal Alcohol Spectrum Disorder or a brain injury, but not voluntarily induced drug or alcohol intoxication); whether the offender used, or threatened, violence; whether the offence resulted in death or serious bodily injury; whether a firearm or other dangerous weapon was used; and whether the offender played a peripheral or minor role in the offence. The list also includes a basket clause for “any other factor or constellation of factors” that might give rise to substantial and compelling circumstances justifying a downward sentencing departure.

The working group also recommends that sentencing judges should be required to give reasons when applying the exemption. Moreover, to promote a consistent approach, judicial interpretations and applications of an exemption should be considered questions of law, thus enabling appellate courts to step in and provide clear guidance.

The working group strongly recommends that it should be up to the trial judge to decide how much to reduce the sentence, although at least one member expressed the opinion that an exemption should still result in jail time, even if only briefly.

The group also unanimously recommends that the MMP for murder should not qualify for any exemption. Its members divided over, and therefore left open, whether impaired driving offences should also be carved out.

Queen’s University criminal law professor Don Stuart said the ULCC’s report, if ever implemented, might soften the application of MMPs.

“It’s better than what we’ve got,” he conceded. “But my preferred [route] would be for the Supreme Court to stand up and say…‘We’ve got a doctrine of cruel and unusual punishment, and for all offences other than murder, to assume that parliamentarians can declare in advance a mandatory minimum, usually jail, without any consideration of the circumstances, is unconstitutional.’”

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