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Sex assaults, big frauds, drug offences likely to end up with jail time

|Written By Kirsten McMahon - Law Times

When seeking a conditional sentence for yourclient, it's important, say members of the defence bar, to take a principledapproach.

Photo: Kirsten McMahon.  Gilbert Labine says there's been a lot of public pressure on the judiciary to stay away from conditional sentence orders.
Photo: Kirsten McMahon. Gilbert Labine says there's been a lot of public pressure on the judiciary to stay away from conditional sentence orders.
"Keeping your client out of jail" was the topic of just one of the seminars at the recent Criminal Lawyers Association's fall conference, where members of the defence bar got together in Toronto to discuss sentencing approaches.

"There has been, as you probably all are aware, public pressure not only from police associations, special interest groups, and certainly the media with an editorial in The Globe and Mail a couple of weeks ago criticizing the judiciary for imposing conditional sentence orders," said the chair of the panel, Thunder Bay, Ont., lawyer Gilbert Labine.

"So there's increasing pressure on judges not to listen to our demands to impose these kinds of conditional sanctions."

This was witnessed most recently with the conditional sentence handed down to Paul Coffin, the first person convicted for his part in the federal sponsorship scandal. The Montreal advertising executive pleaded guilty in May 2005 to defrauding the federal government of $1.55 million.

A Quebec Superior Court judge handed him a community sentence of two years less a day last month, plus a weeknight curfew of 9 p.m. Coffin has also repaid $1 million of the defrauded money and has begun speaking to students at several universities on business ethics.

The sentence Coffin received was considered by some to be too lenient. The Crown is appealing.

Justice Minister Irwin Cotler introduced legislation last week that would restrict the use of conditional sentences for all forms of sexual assault, organized crime, and any serious or violent individual case where the need to condemn the act takes priority over other sentencing objectives.

According to the Criminal Code, any sentence that is less than two years and not imposed for an offence carrying a mandatory minimum can be served under conditions in the community, as long as there is no danger to the public.

However, lawyers on the panel say you will have a much harder time getting conditional sentences for certain offences than others.

"With respect to grow operations, my experience is that it depends largely on the size of the operation," said Lee Baig, another Thunder Bay lawyer. "If you've 12 plants growing in your backyard you could easily qualify for a conditional sentence. If you have 20,000 plants growing in an old brewery somewhere, you might have a little trouble."

With respect to offences involving cocaine, Baig said, defence will have a lot of trouble getting any consideration at all for conditional sentences, unless it's a small amount and there are some features about the tender that are very good. For example, the accused has a job, a family to support, or an illness that requires constant attention.

"So far, for the harder drugs you're going to have a lot of trouble," he said. "It's assumed that these drugs are going to destroy the fabric of our society."

For offences involving fraud and breach of trust, as in Coffin's case, it can also be tricky to seek a conditional sentence.

First, said Brian Greenspan of Greenspan Humphrey Lavine, greed-related crimes are one of the only areas where incarceration seems to be an effective deterrent. Second, it's hard to convince a judge or the public that the offender relaxing by a pool for a couple of months, even under house arrest, is being punished.

"That's the type of area where you will see a rejection, and when you see large-scale frauds of first offenders, people in the business community who would otherwise under every other category qualify for conditional sentencing," Greenspan said.

The breach of trust factor of large-scale fraud is also an aggravating factor.

"There's no question that breach of trust is an articulated aggravating factor, so you've got a codification of breach of trust being an aggravated factor," Greenspan said. "Unless it can be tempered in some way by some mitigating feature of that aggravating factor, you're going to be in some difficulty in terms of attempting to bring in a principled approach of a non-custodial sentence."

Sexual assaults are also a delicate area, said Thunder Bay Crown attorney Daniel Mitchell. While the Crown has its practice memoranda on sentencing that encourage Crown counsel to make the most effective use possible of all of the provisions in the Criminal Code, the Crown policy does ground itself in the need for deterring and denunciating with respect to sexual assaults, especially those involving children or that cause psychological or physical harm to the victim.

"Conditional sentence orders have been granted in cases involving some historical sexual offences where the offender was in a rather compromised state of health, also somebody who was youthful and the intrusiveness was not extensive at all," he said. "However, the more intrusive and the more prolonged, the less likely a conditional sentence order would be appropriate."

Greenspan said just because judges have the option of applying the principle of restraint doesn't mean that defence should go after conditional sentences every time.

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