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Judges best able to decide sentences

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The Criminal Code of Canada is filled with provisions that limit the discretion of trial judges in the imposition of sentences. For example, the penalty for first-degree murder is life imprisonment with no eligibility for parole for 25 years. That is the minimum sentence, but it is also the maximum sentence. On the other hand, the maximum penalty for manslaughter is life imprisonment, but there is no minimum. Therefore, the trial judge has complete discretion in imposing a fit sentence for manslaughter.

The Conservative government of Steven Harper embarked on a concerted campaign to increase the sentences for a wide range of crimes. Some members of the public applauded the "get tough on crime" initiative, while others were and are of the view mandatory minimum sentences are both regressive and costly. I think it can be fairly said a majority of members of the judiciary are of the latter opinion -- feeling they are better able to fashion an appropriate sentence, taking into account the gravity of the offence and the circumstances of the accused.

Not surprisingly, some judges have found a way to reclaim their discretionary powers. It is by declaring the minimum sentence legislation to be unconstitutional and therefore invalid. Such efforts are becoming more common, and in the last year two judges of the Court of Queens Bench in Manitoba joined the chorus.

Both of the Manitoba cases deal with the minimum sentence to be imposed for illegal possession of a handgun, with readily accessible ammunition, which was three years for a first offence.

The first decision was by Justice Colleen Suche, which dealt with the accused, Mario Adamo, and was handed down on Sept. 23, 2013. He was convicted and faced the minimum sentence under the legislation passed in 2008 of three years imprisonment. The argument was whether the sentence offended Adamo's rights under Sec. 12 of the Charter of Rights and Freedoms, which, among other things, prohibits the imposition of "cruel and unusual... punishment." There were other claims of potential breaches of Sec. 15 and Sec.7 of the Charter of Rights and Freedoms, but for the purposes of this article we need not look beyond Sec. 12.

The circumstances of the offence were far from serious. Adamo resided with his elderly mother. The Winnipeg Police Service had been informed he was in unlawful possession of a handgun and ammunition. On executing a search warrant, police found the gun and ammunition behind a panelled wall of a shed in the backyard.

The accused was 39 years of age. His gang involvement ended 10 years earlier when he was badly beaten with a baseball bat by two members of the Hells Angels. The beating resulted in extensive brain damage, resulting in impaired memory, impulse control and judgment. Medical evidence established he suffered significant intellectual impairment, along with paranoid ideas and illusions -- matters well beyond the ability of his mother to provide appropriate care. Given his medical condition and the treatment regime in which he was now engaged, Justice Suche concluded a normal sentence without regard to the new minimum sentence would have been six months imprisonment followed by a period of probation.

Justice Suche then considered whether the imposition of the three-year minimum was "grossly disproportionate," which is the test that must be met before declaring the legislation invalid. Justice Suche went through the appropriate analysis and concluded the minimum sentence does indeed violate Sec. 12 of the charter and is therefore invalid.

I do not do justice to the decision of Justice John Menzies, one of the Queen's Bench judges in Brandon, by stating that 10 days after the Adamo decision, he delivered a judgment to similar effect in the case of R v. McMillan. The crime was different. The accused was charged with "discharging a firearm knowing that... another person was in that place." The minimum sentence for this offence by virtue of the "get tough on crime" program of the federal government was four years imprisonment.

The 21-year-old accused had been the victim of very serious bullying as a result of an earlier incident. The accused, armed with a 22-calibre rifle, took six shots at the house where one of his tormentors resided. His stated objective was to stop the continuance of the bullying. No one was injured, but there were two people in the house when the shots were fired.

The accused had encountered no problems while on bail before trial. He was employed and had family support. Justice Menzies found the bullying was the major cause of the accused's illegal behaviour, and to impose the minimum four-year sentence would constitute a grossly disproportionate sentence. Instead, a sentence of one year, plus two years of supervised probation, was imposed.

Both of these cases are now under appeal by the Attorney General of Manitoba, and rightly so. When provisions in the Criminal Code are set aside, the attorney general is duty bound to appeal the decisions to the Appeal Court level and perhaps to the Supreme Court of Canada. There are already cases from other provinces heading in that direction. In Ontario, a series of six cases were recently considered by the Court of Appeal. In all of the cases, a trial judge had struck down one of the newly minted minimum sentences, and the accused had received lesser punishment. The Crown appealed. Essentially, the Court of Appeal concluded the minimum-sentence provisions operated fairly in all of the cases before the court, and thus the statuary minimums were imposed. But even so, taking a critical view of the minimum sentence for possession of a firearm with available ammunition, the court held it to be unconstitutional.

In other words, while the applicable minimum sentence was not grossly disproportionate in any of the six cases, the court concluded it would be so in hypothetical circumstances. One judge referred to this instance: John Snobelen, a former Ontario cabinet minister, had a licensed gun on a ranch in Oklahoma. When his ranch was sold, someone shipped the gun to his home in Ontario. After a domestic tiff, he was charged with possession of a restricted firearm with readily available ammunition. In proceeding before the advent of a minimum sentence of three years, when Snobelen pleaded guilty the judge granted an absolute discharge. His offence was technical only. The judge wrote there could be a "cavernous disconnect" between the severity of the offence and the sentence.

No doubt the Ontario Appeal Court decision will be on its way to the Supreme Court. If possible, the Manitoba cases should be argued at the same time. That could be done if the Manitoba Court of Appeal deals with the Manitoba cases expeditiously, or if the Appeal Court is bypassed by a per saltum order. The chances of the decisions surviving at the Supreme Court level would be greater if the issues are real rather than hypothetical. It would be too easy for the Supreme Court to strike down the Ontario court's declaration of invalidity on the grounds it is purely academic. But it would be much more likely for the Supreme Court to conclude a three-year sentence for Adamo constitutes cruel and unusual punishment under the charter of rights.

Whatever the eventual outcome of these cases, one can predict that across the country judges of provincial and federal criminal courts will continue to seek justification for avoiding the imposition of minimum sentences. Judges are not pleased their traditional discretionary powers have been usurped by Parliament. Judges believe they are better able to achieve a just outcome by considering the gravity of the offence and the circumstances of the offender, rather than applying a preordained, mandated minimum created by government for partisan political purposes.

Charles Huband is a retired Appeal Court judge and past leader of the Manitoba Liberal Party.

Republished from the Winnipeg Free Press print edition January 13, 2014 A9

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