Criminal lawyers are gearing up for a new assault on the federal government’s tough-on-crime agenda in the courts after losing the legislative battle.
Justice Minister Rob Nicholson tabled his omnibus crime bill last week in the House of Commons, where a Conservative majority will now ensure smooth passage for a raft of criminal justice reforms that had floundered in Parliament over the last five years without becoming law.
A number of lawyers’ groups have objected to the legislation, which includes new mandatory minimum sentences for various offences, the elimination of conditional sentences for some crimes, and harsher penalties for violent young offenders.
Criminal lawyer Dirk Derstine says the government can expect a wave of constitutional challenges once the measures finally receive Royal assent.
“I think those challenges are inevitable,” Derstine says.
Derstine acted for Hussein Nur in his recent constitutional challenge of a 2008 law that boosted the mandatory minimum sentence for possession of a loaded firearm from one year to three years. He argued it was arbitrary, constituted cruel and unusual punishment, and discriminated against black youth.
Although Superior Court Justice Michael Code denied the challenge last month, he left the door open to the idea in remarks that the argument could stand up if a different accused brought it forward.
Derstine, who has taken that ruling to the Ontario Court of Appeal, says the newest batch of legislation will prompt fresh challenges.
“You get problems when you attract more mandatory minimum sentences, especially towards areas where the courts and ordinary Canadians don’t believe in draconian
punishments,” says Derstine.
“I don’t think your average Canadian is going to be horrified by mandatory minimum sentences for pedophilic offences, but the marijuana consumption stuff is fairly ordinary.
In terms of degree of moral opprobrium, this is no worse than smoking a joint, which many Canadians think should not be criminal at all. But if you and I decide we’re going to grow some weed plants for the purpose of consuming them together, we’re trafficking and we’d both go to jail for six months.”
Toronto criminal lawyer John Rosen says mandatory minimums have traditionally been a public policy tool in cases such as murder with the aim of “stigmatizing the conduct rather than punishing the offender.”
“When you start adding to the list of [minimum] sentences, you start to wonder whether or not we’ve gone beyond a public policy of trying to stop a certain kind of conduct and we’ve ventured into the realm of punishment pure and simple,” Rosen says.
He believes a new era of constitutional challenges is about to begin with more mandatory minimums increasing the chance that judges will impose sentences that are grossly disproportionate to the gravity of the offence.
Rosen sees the legislation as a step backwards in light of Supreme Court decisions such as the 1987 case of R. v. Smith (Edward Dewey). In that case, the court struck down a mandatory minimum sentence of seven years for importing narcotics because of its potential disproportionality.
Nicholson has so far held firm despite an onslaught from organizations such as the Canadian Bar Association.
At the CBA’s annual conference in Halifax last month, he defended his agenda against allegations that it removes discretion from judges. In doing so, he insisted that Parliament is entitled to set guidelines on sentencing.
“I am proud today to announce that our government has fulfilled its commitment to Canadians to bring forward legislation to make our streets, families, and communities safer,” he said in a statement last week.
“We campaigned on a promise to get tough on child sexual offenders, crack down on illegal drug trafficking, and improve the overall efficiency of our judicial system. Canadians gave us a strong mandate to bring forward these reforms.”
Bill C-10, the safe streets and communities act, rolls nine separate bills from the previous session of Parliament into one.
They include the old bill C-16, which would eliminate conditional sentences for crimes involving personal injury as well as a number of offences prosecuted by indictment, and the previous bill C-4, which would toughen sentences for violent and repeat young offenders and loosen the restrictions on publication of their names.
It follows the passage of the government’s mega-trial legislation earlier this summer. Those reforms aim to speed up complex and expensive trials that have dragged on for years in the past.
Criticism of those measures has been less intense, but Christopher Hicks of Hicks Adams LLP believes even they may not be immune to court challenge.
The bill provides for the appointment of a case management judge to narrow evidence and make rulings on pretrial issues. But Adams says the new position goes against the Supreme Court’s 1993 decision in R. v. Litchfield. In that case, the top court ruled it was preferable for a trial judge to rule on pretrial issues.
“I think there’s going to definitely be challenges,” says Hicks. “It’s counterproductive to have more than one judge on a matter.”
But Joseph Neuberger of Neuberger Rose LLP has less confidence in the idea of constitutional challenges. “It’s going to take some time to study everything, and I think we live in a different climate now.
Arguments to strike down mandatory minimums may not resonate with our courts the way they might have a decade or two ago.”