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One of the enduring criticisms of the Parliamentary system (as opposed to, for instance, the republican system in the United States) is that it lends itself to successive terms of one-party rule. The one party in question may change between cycles, but as long as a general election produces a majority party in Parliament, that party can dictate policy and legislation no matter the level of dissatisfaction among other parties or even the public. It is said that the ultimate "check" on that use of power is the fact that there will always be another election - 5 years or less away - and that that fact constrains the ruling party from making profoundly unpopular decisions. Throughout Canada's history, there have been many examples of ways in which, despite that system, dissent and disagreement can change policy, even if it does not originate on the opposite benches of the House of Commons. A random, "top of the head" instance was the impressive mobilization of public opinion against Pierre Trudeau's White Paper that proposed effectively doing away with Indian status in Canada. Another well-studied phenomenon was the way that Canadian provinces utilized the great British North America Act ss. 91 and s. 92 litigation at the turn of the 19th century and well into the 20th. One of the best examples was the provinces' savvy use of the British Parliament as well as the Supreme Court of Canada in 1982 to fundamentally alter the way the ruling Liberals were planning to patriate Canada's Constitution. The recent furor over the Marc Nadon appointment provides another micro-example. It will be recalled that the Harper government proposed the appointment of semi-retired Justice of Appeal Marc Nadon to replace Justice Morris Fish as a Quebec appointee to the bench. That appointment was successfully challenged and Nadon, J.A. was disqualified on the basis that a sitting Federal Court judge is ineligible to fill a Quebec seat on the Court. What came afterward was as stunning as it was unprecedented. In what appears as though it may have been a deliberately leaked story, a major national newspaper reported allegations that during the appointment process, the Chief Justice of Canada may have inappropriately taken a position on the appointment of Marc Nadon and even to have lobbied against it. What followed was several weeks of back-and-forth allegations as to whether the Chief Justice had done so, or whether the allegation was in fact a "smear campaign" against her, perhaps in frustration over a series of setbacks the Court had dealt the Government. Indeed, the Canadian Bar Association came out swinging in the Chief Justice's defence. Much of this was examined in our blog post regarding the law and order agenda. Within the last week or two, however, it came to light that Nadon, J.A. was not the only Federal Court judge on the government's wish list. In fact, it appears that four of the six proposed appointees were on the list, guaranteeing that at least one would find its way to the "final" list from which the Prime Minister would choose. It now appears that it may have been the fact of having four of six on the list that prompted the Chief Justice to flag the issue. Yesterday the media reported that the scandal had finally produced some results. Government sources have now confirmed that the federal government is consulting with the government of Quebec to jointly prepare a list of candidates for the Prime Minister's review. Government sources say that this is not meant to be precedent-setting, but through the very peculiar and, some would say, poor, handling of this issue, it may be that the Harper administration has given provinces something that at least three failed attempts to amend the Constitution (Victoria in 1971, Meech Lake in 1987 and Charlottetown in 1992) could not: a direct role in appointing Supreme Court Justices, and the first real erosion of the single party rule's absolute discretion to do so. Time will tell.

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In recent posts, we have examined some of this government's tough-on-crime agenda. Over the past several years, this government has enacted important reforms to the criminal law which strengthen sentences for drug trafficking, gun possession and use, terrorism financing and the consequences of failing to win bail. Success for the government has been mixed. For example, in one recent decision, the Supreme Court of Canada upheld the "plain language" interpretation of the Truth in Sentencing Act, which abolished that the old regime of "double time" (or even more in some circumstances) for anyone charged after the changes took effect. This interpretation came as somewhat of a surprise to those at the criminal bar (both Crown and defence) who felt, and often assumed, that what the Parliament meant was that the new rules (abolishing double time and restricting enhanced credit to a maximum of 1.5:1) applied to those who committed offences after the changes, but not before.  However, the government has also suffered more than its share of setbacks, as we've shown in relation to drugs, guns and "dead time" for most offenders.  Indeed, the setbacks have been significant enough that some have postulated that the Prime Minister and Minister of Justice vented their frustration in recent veiled criticisms of the Chief Justice of Canada over whether she inappropriately "weighed in" on the controversial selection of the newest Supreme Court Justice. CTV News recently published an interesting timeline on that controversy. In the last couple of days, the media has also published some interesting insights on how the setbacks are affecting policy, and how, outside of the courtroom, the government may be trying to shape the agenda. Today, the Vancouver Sun reported that a Supreme Court of Canada decision that did not generate much media buzz when it came out, in which the Court struck down certain aspects of the federal government's tough-on-drinking-and-driving agenda, had thrown a real "monkey wrench" into the government's plans to expand the use of increased, random roadside sobriety checks using hand-held devices. As the law stands now, police are required to have a reasonable suspicion that someone is both driving AND has alcohol in his or her body before being able to demand a roadside breath sample. Not only is that the case, but a fail is not admissible against the driver in a prosecution - it can only be used to support further investigation. According to the Vancouver Sun, the government is just not sure how to react. And in another story today, the CBC reported that the government has in fact chopped the Department of Justice's research budget by a whopping twenty percent. A primary reason for the cuts was apparently that the Department was turning out research that was not "aligned with government or department [of Justice] priorities." An example? Apparently, one report found that, "many Canadians lacked confidence in the courts and prison system, but suggested it was the result of misunderstanding rather than any failures in the system, and that education could rectify the problem." Another report, "found that harsher terms for first offenders had little bearing on whether they re-offended — a finding critics held to be contrary to the government's agenda of tougher sentencing through mandatory minimums and other measures." The Department protests that the purpose of the cuts is unrelated to any sense of such dissent and insists that researchers will still be free to reach their own conclusions, but time will tell whether the research department's pre-cuts reputation for being "perceived as non-biased and ... valued for its high quality" will survive what may be the New Agenda.

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February 24, 2012 was a tough night all around. On that evening, a couple of duty officers from Alberta were traveling in eastern British Columbia when they noticed Mr. Van de Graaff, who was driving terribly.  And if there were any doubt about just how bad driving was, those doubts were dispelled by some of the video the one of those fellows took and presented to the Judge.  Here was the Judge's description: "The driving was horrible. Mr. Van de Graff drove into the oncoming lane of traffic, repeatedly, without reason. It appears to be driving that is consistent with an impaired driver. The police suspected he was an impaired driver. They were probably correct, based on the evidence that I have heard thus far." When two B.C. police were able to catch up to the situation and take over, they immediately told Mr. Van de Graaf he was under arrest and tried to take him into custody.  The bigger officer - at 6'5" and 240 lbs, had little difficulty getting control of one of Mr. Van de Graff's arm, but his partner was having trouble getting the other arm to behave.  While that second officer was telling Mr. Van de Graff what to do with his arm, Mr. Van de Graaf, according to the Judge, "while grossly impaired, non-combative, having difficulty with his balance, dazed, with his eyes half open, then started to turn to the police officer."  Bad mistake. The smaller officer intentionally struck Mr. Van de Graff right in the nose - causing injury and significant bleeding. At the trial of Mr. Van de Graff, in which he was prosecuted for impaired driving, driving with a blood alcohol level in excess of the legal limit (also known as DUI, DWI or "over 0.08") as well as dangerous driving, the Judge had heard enough.  After listening to submissions, he decided that this kind of behaviour was so out of line that to let the prosecution continue would undermine the integrity of the judicial process by offending society's sense of fairness.  He ordered an end to the prosecution, and notwithstanding how egregious Mr. Van de Graff's driving had been, including how clearly dangerous it was, the case was over. The Crown appealed and on April 11, 2014, the Supreme Court of British Columbia ruled that the Judge had not made any error.  The Crown was critical of the Judge's analytical approach, including his failure to follow more modern formulations of the rules relating to this area of the law, known as a "judicial stay of proceedings."  The Supreme Court justice rejected that argument, noting that at the trial, the Crown had not even given the Judge any cases to consider.  In any event, the Court ruled, the trial Judge may not have put the test the way it has been stated in more recent cases, but he did consider all the correct principles. The trial Judge had found that, "The integrity of the judicial system will be irreparably harmed if courts were to condone the excessive use of force by law enforcement authorities. This is one of those 'clearest of cases' and the charges are stayed," and despite the best arguments of Crown (which included that the Judge could have excluded evidence or taken the conduct into account at a sentencing), the Supreme Court justice agreed, remarking that, "Cst. Fenimore struck the respondent in the face while he was being held, already “semiconscious” and showing no aggression. Unlike McCrea [another B.C. case in which a judicial stay was found not to be appropriate], this is one of those exceptional cases where the conduct of the officers was so egregious that it would cause the community to take umbrage, so as to warrant a stay of proceeding in order to dissociate the justice system from that conduct."

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Imagine the same 7-Eleven store, in the same city, on the same night, having the same chocolate bar (let's say a Snickers) shoplifted by two different individuals within hours of one another. Call the first thief Johnny Vancouver, and call the second thief Johnny Alberta. Suppose that both Johnnies - Vancouver and Alberta - are around the same age and have the same basic background. Add to the mix that neither guy is an angel - they've each had their run-ins with the law and even some jail time for similar thefts. But by no means is either one a violent or serious criminal. Other than an annoying habit of petty theft, maybe to support a drug habit, they are otherwise harmless. Now consider this question: should they be treated the same in a sentencing, or differently? This hypothetical example is set up to be pretty straightforward. If there is a single, driving, fundamental principle of sentencing in Canada, it is called "proportionality." Similar offenders, who commit similar offences, in similar circumstances, should be treated similarly. If one Johnny is treated with extreme leniency while the other punished harshly, members of the public may begin to question whether the criminal justice system is fair. So far, nothing controversial - most people will agree. They may disagree on what the right sentence is - some believing in leniency and others believing in punishment. But without something that either makes their offences different (for example, if one of them had used violence and the other had not), or something that makes the offenders different (for example one has an unbroken record of property offences for years while the other has never done it before), basic fairness is that they should receive similar punishment. This principle was arguably upset by one of the earliest features of this Conservative government's "tough on crime" agenda. The Truth in Sentencing Act was designed to fundamentally alter the notion of "credit for time served" in criminal sentencing. For decades it had been an accepted principle that if you are arrested for an offence and end up spending time in custody before you are found guilty, then your sentence should take that "pre-trial custody" or "dead time" into account. Again, it's only fair. Still, so far, so good. Another principle that had been recognized for decades was that there were important differences between dead time and time served after sentencing. One of the most important differences is something called "remission". When a person is sentenced to prison for a crime, he is encouraged to behave well in the institution. That includes following the rules, doing as he's told and being non-violent. This makes sense for a lot of reasons. First of all, one reason people are sent to prison is to begin their rehabilitation. Prisons were called "reformatories" in the nineteenth century because it was hoped that a person's "reform" would begin there. A second reason for encouraging good behaviour is safety within the jail; safety for other inmates, and safety for the guards and other staff that have to work there. One way of encouraging "good behaviour" is to reward it with remission. For the vast majority of well-behaved prisoners, they earn one day off their sentence for every two days of good behaviour. So, if someone is sentenced to three weeks and behaves well, he will be released in two weeks; or for a sentence of twelve months, good behaviour will earn release at eight months. One of the most important differences between an actual sentence (time served after the sentencing has happened) and dead time (time served before the sentencing), is that this idea of remission does not apply to dead time and never has. If a person spends two weeks in jail and then pleads guilty, she will not get credit for three weeks, unless the Court "equalizes" it somehow. Because of this (and other reasons relating to the conditions of pre-trial centres vs. regular jails), for decades the Courts have generally not only given people credit for dead time, but have "enhanced" it in recognition of this difference. Although the ratios have varied for different reasons, it was most common for people being sentenced to receive "double credit" for "time served" or "dead time." The Truth in Sentencing Act changed that. The government enacted the law responding to what it said was widespread dissatisfaction with the "dead time" credit regime and to recognize that the public thought it was bogus. The government concluded that there were thousands of guilty people delaying their sentencing so that they could spend time in custody and then "pull the trigger" at a sentencing and get out with time served, using the "double credit" principle that had evolved. As a result, the rules changed and the new normal became an expectation that an offender being sentenced will receive credit for no more than one day credit for each day served. In certain circumstances, that can be increased, but only to one and a half days credit for each day served, and in other circumstances the "one to one" ratio is the most that a prisoner could be awarded. The burning debate (as you will see below) became the following: is the loss of remission, on its own, a legitimate "circumstance" justifying an increase? Before describing the debate, let's return to the example of Johnny and Johnny, Vancouver and Alberta to see how it is that the loss of remission could lead to a problem. Suppose each Johnny gets caught and arrested. Looking at their records for theft, police decide not to release them, and to take them to jail so that a judge can decide whether to grant them bail or not. That afternoon, they appear in Court, one after the other. Johnny Vancouver goes first. His parents come to Court and they tell the judge that they have found a great drug recovery house for him, and that they are willing to post bail in the amount of $1,000 to guarantee his good behaviour - if he screws up, they lose their money. The judge agrees to let him out and off he goes. Johnny Alberta's parents are not there. He does not live anywhere near the Court - in fact, he lives in Edmonton. He was just in B.C. for the weekend. The judge concludes that if he lets Johnny Alberta out, Johnny may skip town and never come back. Because of that - and nothing else - the judge orders Johnny Alberta detained. It's not that Johnny Vancouver's theft is any different; remember - same store, same night, same type of candy. It's also not that Johnny Alberta is any worse of an offender than Johnny Vancouver - it's just that one lives nearby and has family support, and the other is further from home. Fast forward two months later and the same judge has the same two Johnnies back. They have both decided that the evidence is overwhelming and that they cannot beat the charge. Both want to plead guilty. Because the prosecutor is fair, he comes up with the same sentence for both - 60 days in jail. Because the judge is fair, he agrees that this is appropriate, so that's the sentence each Johnny gets. Coincidentally, it's been exactly 60 days since the fateful night when this all happened. Johnny Alberta is sentenced to 60 days; he has served 60 days; he gets credit for 60 days; and out he goes. Johnny Vancouver hasn't spent any time in jail yet (apart from that first night), so when he is sentenced to 60 days, in he goes. But because Johnny Vancouver's time is "post-trial", and because he behaves himself in custody (as Johnny Alberta did), he walks out of jail after 40 days, because he earned that remission. Johnny Alberta, who did the same crime and was sentenced to the same time; who behaved just as well in jail as Johnny Vancouver did, had to do 60 days. Is that fair? Surprisingly, this issue has generated a lot of controversy in the Courts. Many trial courts, particularly in British Columbia, saw the changes in the legislation as a clear indication from Parliament that the system has been overhauled, and unless an accused person can show that his or her conditions in pre-trial custody were truly horrendous, then the presumption should be that, at best, an offender in Johnny Alberta's position can expect is one day credit for each day spent in custody. That view was not universal, however. In three separate judgments from the Courts of Appeal for Manitoba, Nova Scotia and Ontario (each province's highest court), the Courts disagreed. Largely citing the problem identified in this blog post, they decided that Parliament had not drafted the law the way others thought. They determined that the loss of remission alone can justify awarding enhanced credit. It did not matter that that might mean that the vast majority of offenders would thereby likely get enhanced credit. On the basis of simple interpretation of the statute, they ruled, that was the law. And in one interesting and very recent ruling, the Territorial Court for the Northwest Territories held that they system was so unfair that it was unconstitutional, particularly in that it implicitly pressured people into not exercising their right to a bail hearing, for fear that they would be detained for a reason falling within one of the narrow exceptions that deprives people of even an opportunity to apply for 1.5 credit. That judge struck the law down. The lone notable standout was the Court of Appeal for British Columbia. In a "split" decision in which two judges sided with the Government and one wanted to follow the other Courts, that Court ruled that Parliament had intended a major change, and that that major change meant that the vast majority of "Johnny Albertas" were out of luck, unless they could point to something over and above the loss of remission. Earlier this morning, the debate was settled (at least for now) by a unanimous decision of the Supreme Court of Canada upholding the Ontario Court of Appeal, and implicitly rejecting the position of the B.C. Court. In doing so, the Supreme Court squarely addressed the Jonny Vancouver / Johnny Alberta disparity and found that it created unequal and disparate sentences that offend the proportionality principle identified above as being central to sentencing in Canada. The Court found that it is difficult to see how different, or disparate, sentences can be "proportionate to the gravity of the offence and the degree of responsibility of the offender" when the length of incarceration is also a product of the offender's ability to obtain bail, which is frequently dependent on things that have nothing to do with the offence or the offender's degree of responsibility. Using an example that goes beyond the geographical example I've used in this blog, the Court pointed out that Aboriginal people (or, arguably even just the poor) are more likely to be denied bail. Indeed, the statistics bear that out, and the result is that such members of the community consistently get longer, harsher sentences, not because of the wrongfulness of what they did, but because of their isolation and inability to pay. These observations are important, because they engage more fundamental principles that underlie our legal system, as opposed to dry, easy-to-amend statutory interpretation issues (not unlike what the Court did in the Nadon Reference). For that reason, it may be more difficult for the Government to find a way around the Court's decision. The decision, from our country's highest court, strikes another blow at the Conservative government's policy of toughness on drugs, guns and terrorism. It will be interesting to see if there is a legislative response to get around it.

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In a pair of decisions originating in British Columbia, the Supreme Court of Canada has handed down two important decisions affecting the rights of prisoners in Canada. In the first case, Attorney General of Canada v. Whaling, the Court considered whether the government’s retroactive abolishment of what many called “early parole” was fair to inmates who had been sentenced before the changes were made, given that the new law applied to them. As noted elsewhere within this blog, the Conservative government’s law and order agenda has begun producing some “push-back” from the Courts, now that cases have begun working their way through the system.  We have seen that with drugs, guns and arguably anti-terrorism legislation. In Whaling, the Court considered the situation for people who were sentenced before Parliament abolished what some had thought was a generous early parole system in Canada, who were losing the opportunity to apply for early parole constituted a punishment because the government decided to make the changes retroactive.  The Court compared their situations to those of people who were before a judge who decided to impose a longer period of parole ineligibility due either to their personal circumstances or to those of the offence. The Court found that there is an important difference between someone who a judge decides deserves a longer period of ineligibility, and the three prisoners in the Whaling case.  In their situation, they were losing a right to apply for parole without having their individual circumstances – whether personally or relating to the  offence - taken into account.  Although the Court confirmed Parliament’s right to make changes to the parole system, it also found that in some cases – like this one – making such changes retroactive may “trigger” constitutional scrutiny.  In this case, the Court found that the change constituted an additional punishment not contemplated by their sentencing judges, and thus was “double punishment.” Because of that, the Court found that the retroactive regime would not apply to them. In Mission Institution v. Khela, the Court considered the complaints of Mr. Khela, serving a life sentence for first degree murder.  After an investigation, Mr. Khela was implicated in a plot to stab an inmate at Mission Institution.  Mission Institution is a medium security facility, whereas Kent is maximum.  Mr. Khela had done his first three years at Kent before being reclassified. After Mr. Khela’s name surfaced in the stabbing investigation, the warden of Mission Institution conducted an emergency reclassification and Mr. Khela was on his way back to Kent.  The difficulty is that the warden did not disclose to Mr. Khela all of the information upon which she had made that decision, and did not summarize what was being withheld. Although an important focus of the Khela case was whether the correct jurisdiction to hear such challenges – Supreme Court, Federal Court or both – the case also stands as a strong declaration for procedural fairness.  Decisions to reclassify, particularly from medium to maximum security institutions, require that the decision-maker give the prisoner all the information that was considered in the making of the decision, or at least to summarize it, and do so within a reasonable time before the final decision is made.  Here, the warden had considered information never provided to Mr. Khela, and the decision to withhold information was never explained or justified.  As a result, Mr. Khela was deprived of an opportunity to answer the case against him – a breach of an important principle of natural justice.  As a result, the Court found the decision was procedurally unfair and was ultimately unlawful.  The Court upheld the original writ of habeas corpus and confirmed that Mr. Khela was to be returned to Mission Institution.

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The legal and political worlds were set abuzz late last week with the release of the much-anticipated decision of the Supreme Court of Canada in the case officially called Reference Re Supreme Court Act ss. 5 and 6, but known to most as the Nadon Reference.  The case required the Court to consider the validity of the federal government’s appointment of the Honourable Marc Nadon to the country’s highest court. Justice Nadon was, at the time, a semi-retired judge of the Federal Court of Appeal, and the government appointed him to replace the retiring criminal justice giant Morris Fish, who retired from the Court in the summer of 2013.  The Supreme Court of Canada is composed of nine justices, of whom three are traditionally appointed from either the Quebec legal profession or the Quebec Courts.  At the time of his appointment, Nadon, J. was neither a member of the Quebec legal profession (a lawyer), nor of Quebec’s courts.  This was the focus of the challenge. The challenge was started by a prominent Toronto immigration lawyer who, ironically enough, went to the Federal Court (one step below the very Court from which Nadon, J. was appointed), seeking an Order preventing the appointment.  The argument was that even though Nadon, J. had been a Quebec lawyer for many years before going to the Federal Court, he could not go to the Supreme Court of Canada from the Federal Court system if he were to go as a Quebec appointment. There has been much speculation as to why the government appointed Nadon, J. in the first place.  According to many, he was not only not on the short list, but was not even on the “long list” of those generally expected to get the nod.  There is a consensus among many, however, that it was Nadon, J.’s spirited dissent supporting the federal government's refusal to repatriate Canadian Al Qaeda  member Omar Khadr to Canada from Guantanamo Bay that caught the government’s favour. It cannot be forgotten that this government has supported tightened and toughened criminal justice laws relating not only to drugs, but also to firearms, and of course international terrorism.  Perhaps the Prime Minister felt that Nadon, J. would bring deference to government, and not challenge, in his opinions at the high court. Whatever the various motivations, the case was watched carefully, and by many.  Some were interested in the politics and what it means for the Court.  Others were interested in the law. The Court’s decision, shared by six of the seven judges who heard the case, was that the appointment was invalid.  It was not just because the government had gone about the process in the technically problematic fashion of appointing someone who did not meet the eligibility criteria on the face of the Supreme Court Act.  If that were the only reason, then without doubt, the government could just change the Supreme Court Act and try again.  What matters about the case is that the Court recognized that the spirit of the law requiring that Quebec appointments come from a pool of either Quebec judges or Quebec lawyers means something. Canada is a country of numerous legal systems.  Some call it inter-normativity.  Others describe it as multiple legal streams flowing into one “legal river”.  The Court held that the integrity of one of the most important streams, the civil law, as well as the legitimacy of the Court in the eyes of many in the country’s most populous province, Quebec, required that the government follow the basic expectation that the Quebec contingent on the Court be from Quebec, in terms of legal tradition and not just last name. So, what does this mean for the criminal law?  We cannot know yet what will be the “ins and outs” for future challenges to, say, antiterrorism laws, or whether the the next appointment will be any less deferential than this one may have been.  What strikes me, however, is two things.  First, the Court struck a blow for judicial independence.  It is the Court’s place to interpret law, and when the government tries to change the fundamental law of the nation – the Constitution – without going through the peculiar super-majorities that that requires, the Court has shown it will stand up and draw the line.  For criminal accused, who are typically the most feared and least supported, this is an extremely important – even vital – attribute of the legal system.  Indeed, the golden thread of the criminal law, which is the presumption of innocence, depends for its very breath, on a judiciary that is not afraid to stand up to the state. The second observation is this: unlike in many titanic constitutional struggles over the years, this case was not a battle of the federal government versus a huge corporation or against a competing provincial government.  This was not even the Crown versus an accused in the well-understood forum of the criminal trial. What this was, was a creative and fearless lawyer who thought something was wrong, and he stood up to fight it.  Had he not done so, Nadon, J. would be a Justice of Canada’s highest Court.  This writer does not know what that would have meant and what his legacy would have been, but knows that what happened means at least this: our legal system still not only allows, but creates great open space for, creative, courageous and independent lawyers to bring truth to power, and to win.  As a result, the Nadon Reference means, to me at least, that the Courts and the legal profession are both independent.  Hear hear.

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In the last blog post, we examined the case of Joseph Lloyd, a small-time dealer of cocaine, methamphetamine and heroin in the downtown eastside who was able to persuade the Court that the recent changes to the Controlled Drugs and Substances Act, which provide for mandatory minimum jail sentences for certain drug offenders (including, in his case, repeat-sellers of certain hard drugs) provided for penalties that are so harsh that they can be described as being “abhorrent”, “intolerable”, “grossly disproportionate” and “cruel and unusual.” There is ample evidence that the trend is not limited to the downtown eastside, and not just to the drug world. Consider the case of 29-year old Glenn Sheck, whose night started with a visit to an Earl’s Restaurant just outside White Rock.  He was carrying a Louis Vuitton bag but did not realize that he was under close police surveillance.  Sitting in the restaurant alone, he looked up to see police members quietly ask him to come with them.  Once outside, he was arrested and searched.  In the Louis Vuitton police found some serious firepower: a 9 millimeter Glock handgun equipped with ten rounds in the clip. Mr. Sheck was found guilty of the unlawful possession of a loaded, prohibited firearm, and the Crown, having proceeded against him under new mandatory minimum penalties in the Criminal Code, sought a three-year sentence, despite the fact that he was before the Court with no criminal record.  As a result, Mr. Sheck asked the Court to strike down the law and sentence him under the old rules, in which there was no mandatory minimum. The judge agreed that a three year sentence would be excessive and harsh for Mr. Sheck, but at the same time, noted that Mr. Sheck's case was a very serious one, having brought a loaded handgun that was easily and readily accessible into a busy restaurant.  Although a three year sentence for a first-time offender in these circumstances would be excessive and harsh, the judge found that such a sentence would not rise to the level of being what the Canadian Charter of Rights and Freedoms calls “cruel and unusual punishment.” However, just as in the case of Mr. Lloyd in the downtown eastside, Mr. Sheck had other hypothetical scenarios to present to the Court.  And he was successful. In the Sheck case, the reasonable hypothetical was was a young, foolish person who has a loaded restricted firearm in circumstances that look very serious at first blush, but after learning more context, there is in fact less danger and menace than at first suspected.  Mr. Sheck's "reasonable hypothetical" was actually drawn from a an actual case of police bursting into a man’s bedroom to find him holding the firearm and a camera.  He was posing and trying to look tough. Though the gun was loaded and was dangerous, the situation was more foolish and less dangerous than it first appeared, especially well into the case, when more about the young man was known.  However, the judge in Sheck asked himself what would happen in a case where, based on the early appearance of the case, the Crown chose to to proceed against an individual under what is called the “indictable” process.  When the Crown proceeds “indictably” or “by indictment”, the mandatory minimum penalty for a conviction jumps from 1 year in less serious cases to 3 years, no matter what the actual circumstances.  In such a case, a judge, even if he or she heard all of the evidence and knew that the context made the case more foolish than dangerous, would nevertheless have no authority to drop the sentence from a 3 year minimum to a 1 year minimum on the basis that while the case may have looked more serious at the beginning, it turned out to be much less so, once all the evidence was in. On the basis of that analysis, the judge struck down the law and went to find that the s. 1 “saving” provisions could not rescue the law from itself. Finally, lest anyone wonder whether this trend is limited to a couple of provincial court judges in downtown Vancouver, it seems the movement is much wider.  The most notable of all of the cases is the one of R. v. Nur, a decision of the Ontario Court of Appeal released at the end of 2013. In Nur, the Court struck down the threee year mandatory minimum.  That is now the law in Ontario, but because that Court is considered by many to be one of, if not the, leading appeals court (below the Supreme Court of Canada) on criminal matters, it is sure to be considered as persuasive throughout Canada.  Moreover, in Nur, the Court sat as a panel of five justices instead of the usual three which lends added gravity and weight to the Court’s decision.  Finally, the decision for the Court was written by Mr. Justice Doherty, one of the most prominent and well-respected criminal judges in a generation. Although Nur was decided less than four months ago, it has been followed by at least four courts in three different jurisdictions.  Whether it remains the law may soon be clear – the Crown appealed it to the Supreme Court of Canada, which has yet to decide whether it will hear the appeal.

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As part of its ongoing effort to "toughen" the criminal law in Canada, and in a nod to the American experience, the Canadian government under the Prime Minister has been stiffening the penalties for a whole range of criminal offences.  The most prominent of those are the mandatory minimum sentences for certain drug trafficking offences, as well as those for certain firearms offences. One example of the new minimums for drug trafficking snared Joseph Lloyd, a resident of Vancouver's Downtown Lower Eastside who admitted to being addicted to crack cocaine, methamphetamine and heroin.  On March 22, 2013, police arrested Mr. Lloyd for possessing a knife in violation of a probation order.  He had been released from prison after serving a sentence for possessing methamphetamine with an intention to traffic (or give, sell, distribute or share) in it.  When he was searched in March, police found sufficient quantities of cocaine, methamphetamine and heroin to lay another set of criminal charges against him - for possessing those drugs for the purposes of trafficking in them. Mr. Lloyd lost his trial and the consequences were potentially very significant.  Because of his previous conviction for a drug trafficking-type offence, he was subject to an automatic, minimum sentence of one year in jail.  In fact, the Crown was seeking two years in jail.  Although Mr. Lloyd lost his trial, he scored a big victory at the sentencing, in convincing the sentencing judge that although a one year sentence would not be a grossly disproportionate for what he had done, the fact that it was a minimum for everyone, made the law creating the minimum not only unconstitutional but invalid across the board. The way he did so was to create a hypothetical scenario of an addicted, downtown east side drug user with a criminal record for trafficking offences, possessing a small amount of a serious drug to share with a spouse or friend.  The judge accepted that this scenario, though hypothetical, was in no way far-fetched and in fact happens daily in the very neighbourhood where Mr. Lloyd lived. Because a one year sentence for such a person is so grossly disproportionate that Canadians would find it abhorrent or intolerable, the judge found that it violated s. 12 of the Canadian Charter of Rights and Freedoms, which provides a guarantee against cruel and unusual punishment.  As a result, he struck the law down, and in a supplementary ruling, he found that s. 1 of the Charter, which can justify otherwise unconstitutional laws, did not "save" this mandatory minimum sentence. Mr. Lloyd's case was just the latest, and a very local, example of what might be a growing judicial trend against mandatory minimum penalties.  More in the next post.

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Whether to Say No to the Blow - If You're Gonna Do It, Prepare to Defend It   On a cold February evening in Williams Lake, Grant Goleski had the start of a bad night. He was pulled over by a member of the RCMP who said that he had watched Mr. Goleski cruise through two stop signs without stopping as well as drive his truck 25 km / hour over the speed limit. The same officer said he smelled liquor on Mr. Goleski's breath and demanded a breath sample, which Mr. Goleski failed. Back at the detachment, upset because he thought the officer had lied about the two "blown" stop signs, Mr. Goleski, who had agreed to give "breathalyzer" samples to pin down his exact blood alcohol level or "BAC", abruptly refused. At his trial he said it was because the officer would falsify the paperwork. Mr. Goleski lost his trial, but he won his appeal. The issue was, when someone refuses to give a sample of his breath, which you may only do if you have a "reasonable excuse", who has to prove that the excuse was reasonable - the person who refused? Or the Crown? The trial judge thought it was the person who refused. The appeal judge (http://canlii.ca/t/fm85j) disagreed, following a decision from Saskatchewan's highest court (http://canlii.ca/t/5g0t). On March 3, 2014, the highest court in the Province of British Columbia weighed in: trial judge - right, appeal judge and Saskatchewan Court of Appeal - wrong. In R. v. Goleski (http://www.courts.gov.bc.ca/jdb-txt/CA/14/00/2014BCCA0080.htm) the B.C. Court of Appeal ruled that in impaired driving cases, just like in tobacco manufacturing cases, importing controlled drugs cases, and many, many like them, if someone does something that is generally against the law, and wants the benefit of an excuse, then he or she will bear the burden of proving they had that right.  

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