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Changes fetter judicial discretion: lawyers

|Written By Kirsten McMahon - Law Times

Ina move that some defence lawyers say is unnecessary and fetters judicialdiscretion, Justice Minister Irwin Cotler introduced legislation that willrestrict the use of conditional sentences.

(Photo: Jennifer Buter)  The whole announcement on changes to conditional sentencing seems like an exercise in public relations, says John A. McMunagle.
(Photo: Jennifer Buter) The whole announcement on changes to conditional sentencing seems like an exercise in public relations, says John A. McMunagle.
The bill, said Cotler late last month, is to better protect Canadians, building on recent legislation on human trafficking, protection of children, and the DNA databank.

"In particular, this new legislation would further extend our child protection laws by removing conditional sentences as an option for offenders who sexually assault children — thus reflecting the serious harm caused by such offences," he said.

Currently, a conditional sentence can be imposed if the sentence is less than two years, there's no mandatory minimum sentence, and the court is satisfied the community would not be in danger.

The reforms would create a presumption preventing courts from using conditional sentences in cases of:

· serious personal injury offences as defined in the Criminal Code, such as sexual assault;
· terrorist activities;
· organized-crime-related offences;
· and any other offence that is so serious that the need to condemn the act takes precedence over any other sentencing objective.

Judges would be required to explain in writing any exceptional circumstances that led them to believe it would be best to use a conditional sentence in such cases.

"These reforms will strengthen public confidence in the conditional sentence and in the administration of justice," said Cotler. "At the same time, they are consistent with Canada's balanced approach to sentencing, with harsh penalties for high-risk offenders and the use of community-based approaches for those who commit less serious crimes."

This legislation is contrary to what the Supreme Court of Canada said in 2000's R. v. Proulx and the whole announcement seems like an exercise in public relations, says criminal defence lawyer John A. McMunagle, of McCann Law Offices in Ottawa.

"Proulx, as I recall, says there are no restrictions on the availability of a conditional sentence save and except for what's in the legislation," he says.

"Quite frankly, stop placating the special interest groups. It's insulting to the judges in the courts to even make this proposal because it's not a problem. I don't understand, the government always seems to react to things and I have never been a proponent of postage-stamp criminal justice policy work or band-aid criminal justice policy work," McMunagle says.

"Let's not artificially hamstring the courts by saying you can't do it for this, this, this, and this. If it meets the legislative requirements and the judicial requirements, then impose it."

Louise A. Botham, president of the Criminal Lawyers' Association, says she is concerned about any attempt to impede judicial discretion.

"It seems to me that we need to have enough faith in our judiciary to assume that they're going to impose the sentences that are appropriate for the offender and the offence," she says.

"When they don't do that, we have appellate courts that can review that, so I don't like to see a development where that's taken away from the judiciary and it's legislated by Parliament. That's my concern."

Botham says there is a misapprehension on the part of the public that somehow conditional sentences are easy to get or that they don't constitute an appropriate punishment, which she doesn't think is a fair assessment.

According to statistics from the Department of Justice for 2003-ཀ, conditional sentences were only used in 4.6 per cent of all Criminal Code offences and 6.3 per cent of cases involving crimes against the person.

McMunagle says conditional sentences can be an effective tool, albeit one that can sometimes be abused by defence counsel. He says the defence bar should take some responsibility for the issue percolating to the national agenda and be mindful not to abuse conditional sentences.

"Have faith in our courts and our judges who are doing an absolutely outstanding job in weeding out those rare cases where the defence lawyer should never have asked for a conditional sentence, and I have

complete faith in our judges that they will not grant a conditional sentence when it's not appropriate," he says. "If they do, then the Crown can appeal, just like if the defence believes in their heart of hearts that this should have been a conditional sentence, they can appeal and get a higher court's view of the world."

Both McMunagle and Botham say they would need to read the proposed legislation in detail, but at first glance the restriction for conditional sentences in "all forms of sexual assault" seems to be a very broad category.

"Sexual assault runs the gamut from grabbing someone's ass all the way up to something horrible and violent and tragic," says McMunagle. "I think we have to make a distinction between the gamut of various sexual assault. I don't think you can just blanketly say, 'No, it's not available.'"

"That's a pretty broad offence," says Botham. "Maybe it's more carefully delineated in the legislation but that's a pretty broad situation. There are some convictions for sexual offences where a suspended sentence is found to be appropriate, so if you can give a suspended sentence why can't you give a conditional sentence, which is a more significant penalty?"

Botham says by introducing more mandatory sentencing requirements, the individual circumstances of the offender and offence are ignored, "and it really ties judges' hands. I think that's a bigger concern."

"I think we have to trust, to have some faith in our judges that they have some notion of how cases such as Proulx have been interpreted by the Court of Appeal and have an appreciation of the context in which those conditional sentences are imposed," she says.

McMunagle says political interests should play no part in sentencing.

"The bottom line is it's unnecessary meddling and I just see it, frankly, as an exercise in placating special interest groups, which is unfortunately what's been driving criminal justice policy for way too long."

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