The Lawyers Weekly - February 24, 2012

Editor’s note: This article was written shortly before the decision in R v. Smickle 2012 ONSC 602, in which Justice Anne Molloy found a three-year mandatory minimum sentence unconstitutional. See story on page 1.

With a few possible exceptions, plea bargaining is not on the table when there are mandatory minimum sentences—and there will be more of these than ever before when the federal government’s Safe Streets and Communities Act becomes law. That lack of options has criminal lawyers concerned.

“The notion of minimum sentences is bad public policy. The problems are legion,” said Robert Mulligan, a criminal lawyer with Mulligan Tam Pearson in Victoria.

One of those problems, he
said, is the concentration of
power. “Whenever you create
minimum sentences, you put too
much power in the hands of pros-
ecutors. It can be detrimental.”
Take the case of an armed rob-
bery involving two people, one of
whom carried the gun and com-
mitted the crime while the other
stood by (and perhaps even tried
to dissuade the partner in crime).
“In the old days, [the second per-
son] would clearly be charged but
the sentence would be far differ-
ent than the [robber’s], probably
probation. Under the new law,
they’re both going to get the man-
datory minimum,” said Tony Moz-
vik, a criminal lawyer with Breton
Law Group in Sydney, N.S.

Judges have little discretion when it comes to enforcing the mandatory minimums set by government. Indeed, that is their purpose. “The intent is to tie

Whenever you create minimum sentences, you put too much power in the hands of prosecutors. It can be detrimental.

“

Robert Mulligan, Mulligan Tam Pearson

judges’ hands,” Mulligan said,
adding there is a concern that
“judges are too soft.”
There are a few options lawyers
could use to avoid mandatory sen-
tencing. “A statutory mandatory
minimum sentence could be chal-
lenged under s. 12 of the Charter of
Rights and Freedoms as being
cruel and unusual punishment,”
said Mona Duckett, a criminal
lawyer with Dawson Stevens
Duckett & Shaigec Barristers in
Edmonton. The authority for this
is R. v. Smith, a 1987 decision from
the Supreme Court of Canada.

the total sentence would still equal
the mandatory minimum.”
There’s also another option for
defence lawyers: getting a
reduced charge. “Then the Crown
and the judge would have some
discretion,” Mozvik said.

When the federal government’s
omnibus crime bill becomes law,
he added, “I expect this would
become more common.”
“In the best forms of practice, a
fair, just way, you’ll have good
judgments made,” Mulligan said.
“Prosecutors will be willing to
accept a lower or other charge
because they recognize the min-
imum sentence isn’t reasonable in
these particular circumstances.”
The Victoria criminal lawyer
is concerned, however, that best
practices will not always be at
work. “If you give prosecutors the
power to proceed with a charge
that carries a minimum sentence,
parties may opt to plead guilty to
a lesser or other charge without a
minimum. From the citizen’s
point of view, they may have a
legitimate defence but they may
not want to take the chance.”
Canada’s new legal landscape
is coming closer to reality with
the passage of Bill C- 10, the Safe
Streets and Communities Act. It
has passed second reading in the
Senate and is currently before the
Standing Senate Committee on
Legal and Constitutional Affairs.

The proposed legislation introduces minimum prison sentences for a wide variety of offences, including mandatory penalties for seven existing charges related to child exploitation, which will effectively eliminate the use of conditional sentences or house arrest for any of these cases, and for serious drug offences carried out for organized crime purposes or targeting youth. n

Ethical ‘discomfort’ over nolo contendere

No contest
Continued From Page 14

pation in “the functional equivalent of a guilty plea,” with the certain knowledge that the client asserts his innocence?

And what about those actually innocent defendants who are saved from throwing in the towel in the face of a seemingly overwhelming Crown case, solely by their inability to bring themselves to plead guilty? Doesn’t the availability of “no contest” remove this important bulwark against wrongful convictions? We know from experience that the discouraged innocent can be induced even to plead guilty, let alone to refrain from contesting (see R. v.

Kumar, [2011] O.J. No. 618 (Ont. C.A.), in the context of the Dr. Charles Smith scandal). If the “no contest” approach really caught on, wouldn’t the scope for that particular type of miscarriage of justice be broadened?

It’s not as though this procedure could (or should) be prohibited, and there may indeed be the occasional case where it solves more problems than it causes. But for the most part it may be best for Her Majesty’s courts to leave it south of the border. n