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Mandatory Minimums: Recalibrating sentencing initiatives in Canada

Mandatory Minimums: Recalibrating sentencing initiatives in Canada

Systemic racism is alive and well in the Canadian judicial system. A refreshed approach to sentencing is long over due.


Bill C-5 seeks to do just that – by repealing Mandatory Minimum Penalties (“MMP”) for 14 offences in the Criminal Code, and all six MMP’s in the Controlled Drug and Substances Act. Statistics demonstrate that MMP’s disproportionately effect Canadians of color – specifically, Indigenous and Black Canadians.

Two important factors to consider:

Overincarceration rates

Data on this issue was collected by the Government of Canada for the periods of 2007-2008 and 2016-2017. The information compiled desmonsrates that Indigenous and Black offenders were most likely to be admitted to the Federal correctional system for an offence attached to a mandatory minimum sentence.

Judicial discretion in sentencing

Mandatory minimum penalties eliminate a Judge’s ability to sentence an offender while considering their unique circumstances. In cases where a mandatory minimum punishment is the best an Accused can hope for, there is little reason for the Accused to make any meaningful effort to mitigate the damage. When a custodial sentence is imminent, the feeling of having “nothing left to lose” can take over. Any incentive for an Accused to plead guilty to an offence carrying an MMP, when their efforts for rehabilitation have no influence on the Judge’s ability to impose a just and fair sentence.

 

 

 

 

 

 

Reforms to the MMP provisions of the Criminal Code and CDSA are specific to the following offences:

Criminal Code:

1. Using a firearm or imitation firearm in commission of offence (two separate offences)
2. Possession of firearm or weapon knowing its possession is unauthorized (two separate offences)
3. Possession of prohibited or restricted firearm with ammunition
4. Possession of weapon obtained by commission of offence
5. Weapons trafficking (excluding firearms and ammunition)
6. Possession for purpose of weapons trafficking (excluding firearms and ammunition)
7. Importing or exporting knowing it is unauthorized
8. Discharging firearm with intent
9. Discharging firearm — recklessness
10. Robbery with a firearm
11. Extortion with a firearm
12. Selling, etc., of tobacco products and raw leaf tobacco

Controlled Drugs and Substances Act:

 1. Trafficking or possession for the purpose of trafficking (two separate offences)
2. Importing and exporting or possession for the purpose of exporting (two separate offences)
3. Production of substance Schedule I or II (two offence)

Mandatory Minimum Punishments will remain in effect within the Criminal Code for other offences to which MMP’s apply.

It is important to note that the Judge can still impose a period of incarceration for any of the offences mentioned above – they simply will no longer be bound by legislation to impose a specific period of jail.

As we’ve seen with other aspects of Canadian criminal law, a “one size fits all” approach is rarely just. Sadly, these legislative amendments will do nothing to address the current rate of overincarceration of Indigenous and Black Canadians. For them, it is too little, too late.

If you have been charged with a criminal offence, it is important that you speak to experienced defence counsel without delay. Our office skillfully handles both summary and indictable offences, ranging from assault, mischief, criminal harassment and impaired driving, to sexual assault, murder, robbery, unlawful confinement, and everything in between. We are licensed to practice in British Columbia, and work in the Lower Mainland and Greater Vancouver Area including, but not limited to Richmond, Vancouver, Surrey, Ladner, Burnaby, Port Coquitlam, New Westminster and Langley, and in the Fraser Valley, including, but not limited to Abbotsford , Chilliwack, Hope, Mission and Agassiz. We are also licensed to practice in the Yukon Territory and frequently accept clients in Whitehorse, Dawson City, Old Crow, Mayo, Haines Junction, and Faro. 

In it for the long haul: COVID-19 & your IRP

A Vancouver man suffering from long haul COVID-19 symptoms was successful in the judicial review of his 90-day Immediate Roadside Prohibition (“IRP”) after arguing that the Adjudicator breached his right to procedural fairness in his original review to RoadSafety BC.

On February 11, 2021, Peter Ronald Gibson was issued an IRP after the police officer alleged he refused to provide a sample. Mr. Gibson made 7 attempts into the Approved Screening Device, none of which successfully yielded a suitable sample. As a result, his vehicle was impounded for 30 days, and he was prohibited from driving for 90 days.

Mr. Gibson sought a review of his IRP to RoadSafety BC, delegate of the Superintendent of Motor Vehicles on the basis that he had a reasonable excuse for failing to provide a breath sample. In Mr. Gibson’s original review, he provided evidence in the form of his Affidavit. He also provided a letter from his physician that confirmed his diagnosis – he was suffering from long term symptoms as a result of COVID-19, including shortness of breath on exertion.

The letter reads:

“His physical examination shows evidence of post-viral reactive airways with sever forced expiratory wheeze. He has been given prescriptions for Flovent and Salbutamol inhalers today. This could contribute to his difficulty performing breathalyzer test during recent traffic stop”

The Adjudicator at RoadSafety BC rejected the letter from Mr. Gibson’s physician, stating that there was no evidence that the physician was aware of the “minimum flow rate (of breath)” required to provide a sample. Mr. Gibson also provided his own Affidavit, which confirmed that he had been referred for treatment, which included CT scans and chest x-rays, among other diagnostic tests.

Keep in mind that the role of the Adjudicator is to analyze whether Mr. Gibson had a reasonable excuse for failing to provide a sample. The analysis is done through review of the Report to Superintendent and all included materials, and also through review of all materials provided by the Applicant (in this case, Mr. Gibson). The Adjudicator may also rely on the Operator’s manual for the Alco-Sensor FST (the Approved Screening Device), which includes information such as proper operating temperature of the device, screen codes, and procedural standards.

Ultimately, the Adjudicator determined that Mr. Gibson’s version of events lacked credibility, and that his physician did not provide sufficient evidence that his medical condition would have prevented him from providing a suitable sample into the Alco-Sensor FST. In doing so, they advanced their interpretation of the testing requirements within the Operator’s manual – specifically, the wording used to describe the necessary airflow required to provide a sample:

“The Alco-Sensor FST has an automatic sampling system designed to ensure that a sample of deep lung air is obtained and analyzed. In order to trigger automatic sampling the subject must blow with a minimum flow rate, must produce a minimum breath volume, and blow for a minimum duration…”

 On judicial review, Supreme Court Justice Tammen took issue with the Adjudicator’s interpretation of this issue. The Judge dissected the Adjudicator’s analysis and concluded that despite quoting the appropriate resource, the manual itself provided no information to estimate the “minimum” flow rate required.

Through the Adjudicator’s analysis, Justice Tammen determined that they had relied on information (relating to the required flow rate of a sample) that was not available to the Petitioner (or his physician) at the outset of his review with RoadSafety BC. This breached the Petitioner’s right to procedural fairness.

Justice Tammen directed that the Adjudicator’s decision confirming the IRP of the Petitioner be set aside, and that the matter be remitted to RoadSafety BC for a new hearing.

This case demonstrates a significant flaw in the IRP regime – that is, a blurring of the lines between adjudication and medical expertise. While adjudicators may have specialized knowledge of certain issues due to continued exposure via their employment, the boundaries in their role must be respected and enforced.

If you have received an Immediate Roadside Prohibition, an Administrative Driving Prohibition, or have been charged with Impaired Operation of a Conveyance, contact an experienced criminal lawyer at Tarnow Criminal Law as soon as possible. Our office is located in the heart of Richmond, only 20 minutes from downtown Vancouver on the Canada Line, and within 10 minutes of Vancouver International Airport (“YVR”).

Our firm is also licensed to work in the Yukon Territory, where the 90-day review process for impaired driving is an entirely different process. If you are facing impaired driving charges in the Yukon, contact our office as soon as possible for a consultation.

 

 

 

 

It is what it is…or is it?

The internet is a precarious place. We buy, we sell, we talk – and we post. And while that’s all fine and good, it isn’t without consequence. Facebook launched in 2004, and since that time Canadian Courts have addressed and analyzed evidence obtained through Facebook and other social media platforms.


Recently, in a 2-1 decision, in R. v. Martin, 2021 NLCA 1, the Newfoundland and Labrador Court of Appeal overturned a lower court’s decision deeming Facebook screenshots as inadmissible. In a 30 page decision, the Court of Appeal explained how the Provincial Court Judge (“PCJ”) had erred in their analysis of the rules of authentication in relation to the proposed electronic evidence.

The case involves allegations that the Accused, Mr. E. Martin, made threats against the Royal Newfoundland Constabulary (police), via pictures and written communication on Facebook. He was charged with being in possession of a knife for a purpose dangerous to the public peace, being in possession of a rifle for a purpose dangerous to the public peace, and uttering a threat to members of the Royal Newfoundland Constabulary.

The police had attended Mr. Martin’s residence one evening to follow up on a domestic disturbance complaint. The investigation went no further than a brief attendance at the Accused’s residence, which resulted in no further action being taken.

The investigation with respect to the charges in this case began when the police received an anonymous tip that the Accused had posted several pictures on Facebook indicating he planned to harm police.

It was the evening following their first visit to Mr. Martin’s residence that the police received the anonymous tip that indicated he had posted a menacing caption, directed at police, combined with photos that included firearms. The police again attended Mr. Martin’s residence, but were clearly not welcomed. They returned to the detachment and tried to view Mr. Martin’s Facebook page, but were unable to view any content. The police then contacted the anonymous tipster to ask if they would email pictures of the postings, which they did. In total, six screen shots were forwarded. The “screenshots” depicted an individual in various poses, kneeling with and holding various firearms that included a rifle and a long gun. The words “Ed’s Post” and “Ed Martin added 4 new photos” appeared as “banners” over the photos, in the typical Facebook font and symbolism.

These screenshots were at the centre of the Crown’s firearms and threats charges against the Accused. A Voir Dire was held to determine the admissibility of the screen shots. Ultimately, the PCJ declined to admit the photos as evidence, reasoning that these items had failed to be authenticated. The PCJ opined that since the anonymous tipster had not been called to give evidence, no one could testify that the screenshots were not altered or changed in anyway. The Court went further to say that there had been nothing to substantiate that the Accused even had a Facebook account, and even if they did, there was no way to determine conclusively that the Accused had been the one to author the posts depicted in the screenshots.

The Accused was convicted of being in possession of a knife for a dangerous purpose (which was found on him at the time of his arrest) but was acquitted on the charges of being in possession of a rifle for a dangerous purpose to the public peace, and uttering a threat to members of the Royal Newfoundland Constabulary. The Crown appealed the PCJ’s decision to rule the screenshots inadmissible – which brings us to the Court of Appeal’s analysis of the issue.

The Court of Appeal was thorough and careful to reiterate its explanation of a key component in their analysis: the threshold for admissibility of authenticated electronic documents under the Canada Evidence Act is low, and can be established by both direct and secondary evidence. The proposed electronic evidence must be capable of supporting a finding that the evidence sought to be admitted is what it purports to be.

The Crown submitted that the PCJ had been erroneous in ruling that the screenshots were not authenticated by the evidence adduced at Trial. At the Voir Dire, 10 witnesses, all police officers, were called including the officer who began the investigation and obtained the screenshots. This police officer testified that he was very familiar with the layout of Facebook, and the screenshots were consistent with what he knows of Facebook. While not accepted by the PCJ as an acceptable form of authentication, the Court of Appeal disagreed and suggested that the officer’s testimony was evidence that the screenshots were authentic. Further, the police officer testified about identifying striking similarities between what they saw when they were in attendance at the Accused’s home – clothing, personal items, layout of the residence – that mirrored what they had seen in two of the screenshots. The Court of Appeal found that this information aided in the authentication of the screenshots, and determined that it was not necessary to have the anonymous tipster’s testimony verifying their authenticity. No evidence to the contrary was introduced by the Defence.

The Court of Appeal stressed that authenticity does not determine authorship – meaning that although the evidence is admissible, it is not determinative of who actually authored the post. As a result of their analysis, the Crown’s appeal was allowed and the case was returned back to Provincial Court for further proceedings. As is standard practice, the Court of Appeal did not comment on what probative value the evidence may have.

The introduction of digital evidence in criminal proceedings will continue to create a myriad of issues for the courts to determine. The Charter was not written with these intricacies in mind – and the responsibility lays not only with the courts, but in the hands of criminal lawyers across the country. If your case involves digital evidence (social media postings, text messages, etc.) it is imperative that you contact experienced and seasoned counsel without delay. We are licensed to practice in British Columbia, the Yukon Territory and the Northwest Territories. 

Prosecuting hate in Canada: Why, How, and When

Section 2 of the Canadian Charter of Rights and Freedoms grants all Canadians the fundamental right of freedom of expression – but as one young man in Markham, Ontario learned this week, the Charter also permits the enforcement of reasonable limits on expression.

 


18 year old Tristan Stronach, a grade 12 student, was charged under section 372(2) of the Criminal Code – making indecent communications – after his instructor had to conclude an online lesson after Stronach allegedly made racist remarks about the black community. The nature of the alleged comments, while not described specifically, has caused some to ask: why isn’t he being charged with a hate crime?

The answer is: because there is no specific “hate crime” offence in the Criminal Code.

Section 372(2) of the Criminal Code reads as follows:

Indecent communications

(2) Everyone commits an offence who, with intent to alarm or annoy a person, makes an indecent communication to that person or to any other person by a means of telecommunication.

“But what about hate speech?”

Section 319(1) of the Criminal Code reads as follows:

Public incitement of hatred

319 (1) Everyone who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of:

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or

(b) an offence punishable on summary conviction.

 Wilful promotion of hatred

(2) Everyone who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or

(b) an offence punishable on summary conviction.

While it has been made clear that the allegations relate to racist comments towards a single identifiable group – the black community – charges under this section were likely not approved because the evidence is unable to support a conviction. The comments were not made in a “public” place, and while they were made in the virtual presence of a group of individuals, they did not promote hatred – i.e.,  the comments weren’t made in such a way that they would result in other individuals following suit and creating a breach of the peace as a result.

Notwithstanding the above, if the accused is convicted of making indecent communications, the court will consider to what degree bias, prejudice, or hate played a role. These are aggravating factors that could result in a harsher sentence. Through this legislative structure, these aggravating factors can be considered for a variety of offences – assault, theft, murder, and so on.

As Canadians, we are very fortunate to live in a country that allows us to speak, move, and exist freely – but cases like this are a reminder that equality reigns supreme.

6 Years Later

It has been six years since Matthew de Grood was charged with the murders of five young people at a house party in Calgary, Alberta, and four years since he was found to be Not Criminally Responsible for those offences.

It was concluded that de Grood was suffering from delusions, attributed to undiagnosed schizophrenia, when he caused the deaths of five schoolmates from a local university. He has been in a secure psychiatric facility ever since.

As we have discussed in previous posts, a finding of NCR is neither a determination of guilt, nor an acquittal. It is the beginning of alternative proceedings, which ultimately seek to determine if/when an Accused person can be released back into the community. Like all individuals found NCR, de Grood is required to appear before the Review Board to assess his progress, and to evaluate what freedoms, if any, he may be granted as a result of said progress.

Back in 2016, the Crown suggested it would be making an Application to seek a “High Risk NCR” designation for de Grood. Had this designation been imposed, his appearance before the Review Board would have been extended to take place every three years instead of annually. However – it appears that the Application was never made. This was likely due to the fact that the relevant legislation – the Not Criminally Responsible Reform Act – did not go into force until July 11, 2014, nearly 3 months after the offences took place. As such, the law could not be retroactively applied to de Grood’s case.

At his recent hearing, de Grood’s counsel spoke of the progress he has made during his time at the psychiatric facility. He has been afforded the opportunity to spend the night at his parent’s home on several occasions, taking hospital transportation to and from medical appointments, and volunteering with Meals on Wheels. His counsel submits that de Grood should be granted an absolute discharge due, in part, to the progress he has made with his mental health issues, including being cooperative with taking his medication – and recognizing the devastating consequences that would come as a result of not taking it. He has also demonstrated a high level of remorse for his actions.

Defence counsel further acknowledged that de Grood’s case is extremely high profile. There are concerns regarding the public’s reaction to seeing him on public transit, and how he may face serious adversity in transitioning to a group home.  

The Review Board reserved its decision, and accordingly, de Grood remains in a psychiatric facility with heavy restrictions on his freedoms.