Anthony Moustacalis

Bill C-10 contains 5 parts that incorporate 9 earlier bills from the previous Parliamentary session.

These nine specific parts include:1. Victims of Terrorism Act and 2. Amendments to the Criminal Code re Sexual

Offences against Children3. Amendments to CDSA 4. Amendments to Criminal Code re conditional

sentences5. Amendments to Corrections and Conditional release

Act6. Amendments to Criminal Records Act (pardons)7. Amendments to the International Transfer of

Offenders Act8. Amendments to the Youth Criminal Justice Act9. Amendments to the Immigration and Refugee

Protection Act

Has been to expand mandatory minimumsReduce conditional sentencesAlter parole eligibilityRemove Pardons and lengthen time for

“Record Suspension” eligibilityReduce accountability of Minister in Transfer

of Offender cases

Many of these amendments raise constitutional issuesUse of mandatory minimums is being litigated

now with six cases before the Court of Appeal

Three things to note

Pre-trial custody can reduce a mandatory minimum  R. v. Wust, 2000 SCC 18, [2000] 

R. v. Nasogaluak, [2010] 1 S.C.R. 206. In exceptional circumstances a charter remedy may be appropriate, but rare

[55] Thus, a sentencing judge may take into account police violence or other state misconduct while crafting a fit and proportionate sentence, without requiring the offender to prove that the incidents complained of amount to a Charter breach.  Provided the interests at stake can properly be considered by the court while acting within the sentencing regime in the Criminal Code, there is simply no need to turn to the Charter for a remedy.  However, if a Charter breach has already been alleged and established, a trial judge should not be prevented from reducing the sentence accordingly, so long as the incidents giving rise to the breach are relevant to the usual sentencing regime.  Of course, as we shall see, as a general rule, a court cannot reduce a sentence below a mandatory minimum or order a reduced sentence that is not provided for by statute.  That said, circumstances of a Charter breach or other instances of state misconduct, in exceptional circumstances, do allow a court to derogate from the usual rules to which its decisions are subject.

 

“I do not foreclose, but do not need to address in this case, the possibility that, in some exceptional cases, sentence reduction outside statutory limits, under s. 24(1) of the Charter, may be the sole effective remedy for some particularly egregious form of misconduct by state agents in relation to the offence and to the offender. In that case, the validity of the law would not be at stake, the sole concern being the specific conduct of those state agents.”

In the end, the court held that the trial judge could not go below the mandatory minimum sentence of a fine (and licence suspension) for the impaired. The circumstances (beating, resulting in broken ribs and punctured lung, not sending to hospital right away ) did not warrant a 24 (1) remedy.

Proportionality of sentencing is a principle of “constitutional weight”This is important, potentially, on the fight

against conditional sentences, because it may be argued that if proportionality is now a principle of fundamental justice, the mandatory sentence does not need to be cruel and unusual to be unconstitutional

To find a mandatory minimum sentence unconstitutional court must determine if the sentence is “cruel or unusual” under section 12.

R. v. Smith(1987) Cruel and unusual is a compendious

expression of a norm Meets test if sentence is grossly

disproportionate such that the punishment prescribed is so excessive as to outrage standards of decency

Merely disproportionate or excessive sentences do not meet the test, and are for appellate fitness review.

McIntyre J. held that even if punishment is proportionate to the offence it will be cruel and unusual if it is imposed arbitrarily, unevenly and without reason upon some people and not others

Also permitted an accused standing to challenge constitutionality even if his facts do not support the claim (Smith court upheld 8 years but declared sentence unconstitutional)

Smith also held that law can be cruel or unusual and unconstitutional because of its purpose or its effect

Eg treatment of prisoners, how solitary is imposed, location of prisons

Majority also found could be saved under section 1 analysis becomes analysis if state goal or objective is of sufficient importance to warrant overriding a Charter right and does it meet the minimum impairment part of Oakes proportionality test.

Rcmp officer shot and killed a detainee, and was convicted of manslaughter

236 a minimum 4 years. Judge gave constitutional exemption and imposed conditional sentence.

Scc clarified no constitutional exemptions and 4 years ok.

R. v. Goltz, (1991) minimum 7 days for driving while prohibited by BC Motor Vehicle act upheld by SCC (6-3)

R. v. Morrisey (2000) Four years for crim neg cause death with firearm ok per SCC

Court of Appeal has reserved on six cases:

R v. Leroy Smickle Smickle was posing for a photo with a loaded handgun in his cousin's house when

police burst in with a search warrant for the cousin, who they believed had illegal firearms. He was convicted of possession of a prohibited firearm, but the judge ruled that it would be cruel and unusual to send the first-time offender to prison for a "very foolish" act for three years.

R v. Hussein Nur Nur pleaded guilty to possession of a loaded prohibited firearm. The judge ruled that

if the mandatory minimum did not exist, he would sentence Nur to 2 1/2 years, so the three-year mandatory minimum was not grossly disproportionate. The judge did raise several scenarios in which the mandatory minimum would be inappropriate. Nur challenged the law on the basis that the two-year gap between the maximum summary conviction sentence and the minimum on an indictable offence was arbitrary and contrary to the Charter. The judge agreed, but dismissed the challenge on a technicality.

R v. Frank Meszaros Meszaros used a loaded shotgun to threaten two people who were fishing in his

private trout pond. He was convicted of assault and using a firearm in the commission of an indictable offence. Meszaros challenged the one-year mandatory minimum sentence as violating the Charter, but the judge dismissed it.

R v. Matthew Rocheleau Rocheleau was convicted of robbery with a firearm, along with a slew of

other offences. He argued it's unconstitutional that mandatory minimum sentences for robbery with a firearm and using a firearm while committing an indictable offence must be served consecutively. The judge upheld the mandatory minimum.

R v. Ian Chambers Chambers was convicted of possession of a restricted firearm. Since he

had previous gun possession convictions, the mandatory minimum sentence was five years. Chambers was sentenced to six years, but his lawyer argued that the mandatory minimum serves as an "inflationary floor" and Chambers deserves at most four-year sentence.

R v. Sidney Charles Charles pleaded guilty to several firearm offences after a loaded gun was

found in his bedroom at a rooming house. He was subject to the five-year mandatory minimum sentence for a second offence, but he challenged the law about what constitutes an earlier offence. The judge found there was no Charter breach.

(Summary from CBC website: http://www.cbc.ca/news/politics/story/2013/02/19/pol-cp-mandatory-minimums-ontario-court.html)

May be struck down as being cruel or unusual

Next battleground may be section 15 and section 7 and 12 –do these provisions disproportionately affect Aboriginals, the Mentally Ill or other groups?See submission by David Asper Centre on Bill

C-10