How Should I Decide Whether I Should Plead Guilty?

New novel by a Toronto criminal defence lawyer.

Most people who are charged with an offence in Canada plead guilty. Not the vast majority like in the United States where it's commonly suggested that 90% of those charged plead guilty - perhaps because of the massive penalties they risk in going to trial rather than agreeing to a reasonable negotiated sentence on a plea. In Canada, the rule of thumb is that you should get about a 1/3 sentence discount on an early guilty plea - though sometimes you can do a lot better than that, like completely avoiding a criminal record through receiving an absolute or conditional discharge,as compared to receiving a fine (and a record) after trial. And sometimes you don't do better at all. 

When I was serving as a Federal Crown Prosecutor, how good of a deal I wound up offering an accused on a plea would depend on lots of factors, like how strong I believed my evidence was, whether there were technical problems with the case like a potentially illegal search or inadmissible statement, and what I thought of the future prospects of the accused for staying out of trouble. Sometimes, how effective a negotiator the defence lawyer was could play a significant role.

Now that I'm an Ontario criminal defence lawyer myself, I view Crown-defence negotiations as a very important part of developing a solid defence. I only undertake them after a careful review of all the evidence and other materials in a case, so that I understand a case's strengths and weakness from both the Crown and defence perspective. Since relationship building is the key to any successful negotiation, ideally I will have an already established rapport with the prosecutor, or will be able to build such a rapport as I demonstrate my complete understanding of the facts and law in a case. These negotiations can have a significant pay off even after trial, as they can limit the maximum penalty a prosecutor will seek at trial (as well as providing a better deal on an early plea), narrow the contested issues at trial, and occasionally convince the prosecutor to completely drop all charges because of all the factual and legal problems with a case. How should you decide whether to plead out?

1. Did you really commit the offence you are charged with? Note this question isn't asking if you did anything of a questionable nature, but rather did you do what they claim you did - including whether you intended to do it if that's an essential element of the office. If you're innocent, you shouldn't be pleading guilty. And you shouldn't be thinking that just because you've been charged with an offence, "the system" will inevitably find you to be guilty of it. When I was serving as a Federal Crown Prosecutor, I would from time to time be given files where the accused really was innocent; I did the only thing ethically possible - I dropped the charges. But prosecutors need to be very sure of your innocence before they will do that - thus the importance of negotiations through your defence counsel.

2. What kind of penalty can you expect after trial, compared to what can be negotiated for an early plea? Sometimes you can get a great deal for an early plea, other times the deal offered may be no better than you would receive after trial so that there really isn't a lot of risk in taking the case to trial. I highly suggest retaining a criminal lawyer to negotiate on your behalf; the cost may be fairly reasonable, those lawyers know how much offences are really worth in terms of penalty where you've been charged (the practical tariffs vary a lot across Canada even for identical offences), and they've built relationships with the prosecutors through which they can best plead your case. Certainly it's possible to see what you can get by yourself without a lawyer, but it will be almost impossible to tell whether it's a good deal or not.

Do be aware that the judge always has the last say, so just because the Crown and defence agreed on a deal doesn't mean the judge has to accept it. But it's also true that if the Crown and defence don't agree and go in on an open submission where each pitch to the court what they respectively believe the penalty should be, the judge might pick the defence position if it's the most reasonable.

3. What kind of consequences are you trying to avoid? If you're trying to avoid any type of criminal record because you don't already have one, and all the prosecutor will offer is resolution outcomes that lead to you getting stuck with a record, then taking the case to trial may maximize your chances of avoiding a record - although you could still pitch the judge on that result on a plea, even if the prosecutor disagrees with you. If you're trying to avoid a lengthy jail sentence, again the position of the prosecutor on a plea will drive your decision; if the prosecutor demands lots of jail even on a plea - and in fact that seems a likely outcome upon conviction - you might be best off going to trial and trying for an acquittal.

4. Can you financially afford to go to trial? If you are planning to hire a lawyer anyway to review your case and conduct negotiations with the prosecution, you'll find that taking a case to trial will not massively increase your costs assuming your matter is not extremely complex. Most trials can be finished in about a day or less of court time. Most lawyers will require at least a day of their time - spread over a few weeks or months - to review your case, consult with you, and conduct negotiations with the prosecution. So yes, going to trial might double your legal fees, but it will only be if you are charged with a very serious offence with a complex set of facts that going to trial could be a few times more expensive than negotiating a plea.


5. Are you trying to avoid publicity by not going to trial? While it's true that sensational facts will generate some trial publicity in the media, those same facts are going to generate the same publicity on a guilty plea. The publicity might be more limited in time if you plead guilty quickly and the sentencing happens right away, but the mere lack of a trial won't wipe out the potential for public attention. Because there are now so many stories competing for the media's attention, unless you're already a famous public figure or are alleged to have committed a truly heinous or bizarre act your criminal charges are unlikely to attract media notice. If you are in a larger city, there will probably be nothing in the press. If you're in a small town with a police files page in the local paper there could potentially be a two or three line write up, but sometimes your name won't even be used. Pleading guilty isn't a good way to avoid publicity.

6. Do you just want to put it all behind you and get on with your life? I personally think this is a pretty good read to plead guilty, but only if you really are guilty and are able to negotiate a reasonable sentencing deal.

The lesson here is don't let your plea be driven by misassumptions. Hire a criminal defence lawyer to negotiate for you, or at least explore all your options including pinning down an exact sentence on a plea, before you make up your mind on what to do. 

Yes; No; Maybe: Three Responses to Use When Stopped by Police

Police stop 210 km/hr race involving Ferrari 599 GTB. Photo credit: www.wordcarfans.com.

Sooner or later, regardless of how "law abiding" we might thinking of ourselves, we're all going to get stopped by the police. Usually it's going to be when we're driving a vehicle. Occasionally it might be when we're walking in a certain kind of neighbourhood or passing through a border crossing. Some of us might be stopped more often than others.

As a white boy from the burbs, I used to think of the so-called offence of "driving while black" (DWB) to be a fantasy. That is, until I became a Federal Prosecutor and saw the results start to pass through my courtroom. One of my Federal Prosecution Service colleagues - now a judge - who happened to be black, and who could afford to drive nice cars, really tilted my worldview when he told me about all the times he'd been pulled over on the highway by the police. One officer was so embarrassed to find out he was a prosecutor on his way to court, he gave him a lights flashing and sirens wailing escort the rest of the way.

But enough talk of racial profiling - though I should mention it usually isn't even a conscious thing, it's something we all have to work at so that conscious reason prevails over sub-conscious feeling - on to my three police stop answer tips of the day.

I spend a fair bit of my time as a Cornwall criminal lawyer and Brockville criminal lawyer (and sometimes in two satellite courts as a Morrisburg criminal lawyer and Alexandria criminal lawyer). For those of you not familiar with Eastern Ontario, and who like to play with Google Maps, you can check out the 401 Highway blacktop ribbon the stretches between those outposts of civilization and concentrations of Tim Hortons. It's the busiest highway in Canada, and its drivers have various ways of attracting the attention of Her Majesty's law enforcement personnel - most notably by demonstrating considerable excess where the posted speed limit is concerned.

When you're stopped there - or anywhere - you need to know what to say.

"Yes."
"No."
"Maybe."

Got that? Those are the three answers you need to remember to the following questions you might get asked when the police stop you.

Question #1: "Can you give me some identification? Tell me who you are, and where you live?"

Answer #1: "Yes," or "Yes, officer" if you prefer. 

If you're driving a vehicle, you don't have any legal choice on this one. If you're a passenger, a pedestrian, or found somewhere else, I concede this one could be legally arguable, but do you really want to wind up detained while the police figure our who you are? I recommend you always identify yourself.

And do not give a false name or address. I continue to be amazed by the number of people who do this, and wind up criminally charged with obstructing justice - a very serious offence, often more serious than the original offence the police were investigating. If you really, really don't want to give the police your name (and you aren't driving anything), then say nothing - but don't lie. You might wind up detained, but you shouldn't get charged over saying nothing.

Question #2: "Do you consent to my searching your car/truck/trunk/backpack/apartment/house?"

Answer #2: "No."  

This answer is a little trickier than the first answer, because you need to watch for what form the question is posed in. If you get the more common form of the question: "Do you mind if I take a look in your car/truck/trunk/backpack/apartment/house?" then the necessary answer transforms itself into "Yes, I do mind."

Never consent to a search. Whether it's requested as part of a casual conversation with police, or through the police producing a formal Consent to Search form that you are asked to sign, just say no.  For those who are really interested in all the legal problems involved in consent searches, check out chapter 6 of my books The Investigator's Legal Handbook or Le manuel juridique de l'enquêteur, available in public, university and college libraries throughout Canada, and in a few university libraries in the U.S.

However, never try to physically stop the police from conducting a search. They might in fact have valid authority to search you (if they have arrrested you), parts of your car (if they have seized it - though the law here gets a bit complicated), or your residence (with a search warrant, or rarely with exigent circumstances like when responding to a 911 call). Plus, like giving a false name when answering question #1, you're likely to wind up getting charged with obstructing justice if you try to stop a police search - even an illegal one. Leave it to your lawyer to argue the merits of the search at trial if the police find anything.

Question #3: "Do you mind answering a few questions?"

Answer #3: "Maybe." 

The reason this one is the trickiest question of all is that sometimes, in response to regulatory requirements governing things like automobile insurance or a hunting licence or an environmental permit or when driving through a border crossing, you may be obligated to provide some information beyond your identity. There can be some very negative consequences from completely refusing to cooperate.

You might also be obliged to take a sobriety test if you are in control of a vehicle.  It's usually best to go along with demands for sobriety tests, since refusing is a serious offence itself, the officers need some basis to ask you for the test in the first place, and your lawyer can fight at trial over whether you should have been asked in the first place.

One possible response is to ask in response: "Do I have a choice about answering the questions? Must I answer them? Why are you asking them? Why do you need to know?" You might not get a clear answer, but if the answer is "No, you don't need to answer" then that would settle it.

If you think the situation is serious, you could say "I'd like to talk to my lawyer before answering." Be aware that while the police need to give you the opportunity to call your lawyer, the courts have held that they don't have to stop attempting to get answers from you while you await a call back from your lawyer.

If in doubt, the best response to Question #3 is to say nothing, and call a lawyer, but don't completely rule out answering questions in the future - which could be many hours in the future - depending on the legal advice you receive. Generally, the police cannot force you to answer any questions for a criminal investigation, but might be able to demand administrative information from you for certain regulated activities - thus the importance of knowing why they're asking.

I know this #3 answer isn't very clean or easy to apply. This is why people get themselves in trouble with the police and other law enforcement authorities by usually saying too much, but sometimes saying too little. It's also why we lawyers are able to earn a living. Give me a call

Three Things You Need to Know About Criminal Law in Canada

Photo source credit: lucywho.com

"In the criminal justice system, the people are represented by two separate yet equally important groups: the police who investigate crime and the district attorneys who prosecute the offenders. These are their stories."

- Opening narration to every Law and Order episode, as spoken by Steven Zirnkilton. 

From all the talk of criminal law in the movies, on television and within those always salacious crime thriller novels, you'd think we'd all know lots about criminal law. Lots more, in fact, than for any other area of law. How many movies have you heard of with the compelling title: "Property Law"? Or how about a t.v. show called "Torts and Contracts"? Don't really grab you, do they?

I think we can certainly learn something from movies, t.v. and novels about crimes and the people who commit them. Sometimes we learn a bit about the "justice system" - although that most sonorous of Law and Order voice overs conveniently omits any reference to the defence bar of which I'm a member. But learn about the criminal law? 

The problem is that the criminal law - like all other types of law - is an intangible. The ghost in the machine. Nothing to look at. Nothing to touch. Just a blanket of nothingness which envelopes us, supposedly keeping us all safe and dealing with those who transgress society's norms. Movies, t.v. and books can show the crimes. They can show the criminals. Occasionally they can give glimpses of the larger justice system. But what of the criminal law is there to show?

Notwithstanding this failure of popular culture to educate - as shocking of a conclusion as this may be to all of my readers - if we're ever on the receiving end of the justice system, be it for traffic offences or bank robbery, understanding what exactly this criminal law thing is becomes very important. The challenge is that it's become one of THE most complicated areas of the law. 

Now I know that might be said about a lot of legal areas, but the majority of cases that drag through the courts tend to be the criminal ones - in part because the courts are the only ones who can pass final judgment on the guilt or innocence of an accused, and also because the government bears most criminal justice costs (unlike civil justice where the parties usually pay their own costs). That in turn produces a whole lot of criminal case law where judges are rendering decisions on everything from the validity of search warrants to how two words buried in the middle of a Criminal Code thousands of pages long should be interpreted. Likewise, Parliament loves constantly creating new criminal offences, tinkering with old ones, enacting modified criminal court procedures, and generally trying to show the public that it takes crime seriously, which creates a whole lot of criminal legislation. Parliament tends not to worry as much about whether the public thinks it takes property law seriously. 

The good news is that there are a few easy to understand and easy to remember principles of the criminal law that have been longstanding constants, regardless of all that criminal case law and legislation that has been cluttering the legal landscape lately. Today I offer you three of those principles. In future posts, I'll give you a few more. 

1. Ignorance of the law is neither a defence nor an excuse. What this principle means for you is that if you have any doubts over whether something you are about to do is legal, you should always check the state of the law with at least an appropriate government official and perhaps with a lawyer before acting. Otherwise, you act at your own peril and risk being convicted of an offence. This rule applies equally to new changes in the law, very complex laws, or very obscure laws.

2. You are presumed to intend the logical consequences of your voluntary actions. Therefore, if you choose to hit someone and that person dies, you could be found guilty of manslaughter or murder - not just assault - depending on your original intention in striking the blow. 

3. Exercising due diligence in order to avoid contravening the law is a defence in most regulatory offence matters. Your conduct will be assessed against what the reasonable person would have done in your situation. This means that driving with a speedometer you knew to be broken will not usually work as a speeding defence, but having your engine race uncontrollably despite your best efforts to stop your vehicle might be a defence.  

Stay tuned for next time, when I'll share three things you should know about the criminal law if you're stopped by the police. 

Why Immigrants Need Your Help

TN Castel Felice, the immigrant ship which brought my parents to Canada. Photo credit: Reuben Goossens. 

I'm the child of immigrants. Their taking a chance on Canada worked out well for them, and it worked out very well for me. Within a couple of days of getting off the boat which had whisked them from Scotland - I'm not that old, but they did manage to come over on one of the last immigrant ships (better luggage allowance than on a plane, they told me) - they had nice place to stay, a car, and most importantly decent jobs. But the facts that they were white, native English speakers, and British subjects of the "right" kind certainly made things easier for them.

Without their coming to Canada, I would probably have never gone to university - no one else in my family ever did, nor has anyone's children or children's children who stayed behind, with one notable exception. Instead, I wound up with three university degrees. But children of immigrants often do quite well in Canada. It's the initial struggle of the first generation that increasingly concerns me.

I had lunch the other day with a friend of a friend of a friend. He spoke perfect English, Mandarin and Hindi. Yes, Mandarin AND Hindi. Used to publish a Chinese newspaper for Hindi speakers in India back when he lived in China. Happened to have a Ph.D. in communications from a good American university. Oh, and did I mention the M.P.A. from a Canadian university, obtained after the Ph.D. because he thought it prudent to have a Canadian post-secondary qualification as well.

He'd just become a Canadian citizen, and was proud of that achievement. Proud of the country he chose, rather than was born into. Proud that he had beat out a whole lot of other applicants in being granted the right to live out the rest of his days in Canada. Problem was, he couldn't find a job in his field.

Now this wasn't a little, "I've been unemployed for a few weeks" kind of problem. Or an "oh, I have to run the company, everything else is beneath me" kind of situation. This was a he'd been looking for years, and years, and years type of situation.

He become so desperate, he was thinking of returning to his country of birth. After so many years away. He didn't want to wind up like a friend of his - another Ph.D. graduate - who had recently committed suicide because although accepted as an immigrant to Canada, he couldn't find a job. And I assure you, this is a true story - I wish it weren't.

The only advice I could offer him was to go into business for himself. It perhaps wasn't great advice, but turned out to be the same advice his girlfriend - another Ph.D graduate and immigrant, but one who wasn't a visible minority, and most importantly one with a job - had given him. He wasn't thrilled by the prospect of becoming an entrepreneur - it wasn't why he had worked so hard at his studies.

Lots of finger pointing has gone on over Canadian immigrant policy from the days the first immigrants showed up in Canada, mainly involving claims that Canada: (a) accepts too many of a certain type of people, (b) doesn't accept enough of certain types of people (sometimes the same people who it is claimed we accept too many of), or (c) shouldn't accept anyone at all as immigrants. Fortunately, very few seem to support the third view - most just argue over who we should be accepting or not accepting.

For me, immigration has never been primarily about addressing our low birth rate (most immigrants these days are arriving at an older age and having smaller families themselves), or our job market deficits (although this is an important function). It's about keeping Canada invigorated and full of fresh ideas and fresh faces. The alternative to immigration can be stagnation.

But I don't believe it's solely the responsibility of government to make arrangements for these immigrants to "fit in." Sure government has a role, but it's also each and every one of our personal civic duties.

Currently I'm volunteering with T.R. Leger Immigrant Services in Cornwall, Ontario, which helps new Canadians learn the official languages and also provides "settlement services" like assistance in applying to become a citizen. They service an immense area comprising everything in Ontario east of Kingston that's outside the Ottawa urban area.

Since I'm an immigration and refugee lawyer practicing throughout Eastern Ontario - and immigration and refugee lawyers outside the big cities are rare creatures - I try to help all those with problems at one of the three Eastern Ontario land border crossings (Lansdowne, Prescott & Cornwall), the Ottawa International Airport, or those who are already in Canada but need to renew their status or apply for a different kind of immigration status, like visitor visas, study permits and employment permits. Sometimes I work on refugee claims and applications for permanent residency under skilled worker, experience class, family class or business class programs (including investor, entrepreneur and self-employed categories).

Immigrants need to do a whole lot of adapting to our society. The fact they have often left everything dear to them behind to take a chance on Canada demonstrates in the strongest possible terms their commitment to becoming "Canadian." But adaptation is a two way street.

As they change for us, we need to change for them. Integration or assimilation are all just words describing a process of immigrants changing society as society changes immigrants - it's never a one-way process, as much as some might wish it was. No matter what corner of urban or rural Canada (or any other country) you inhabit, I urge you to ask yourself: "what can I do to make an immigrant feel like s/he belongs?" Because even if you haven't been thinking about it - and I certainly didn't used to myself - your future depends on that immigrant deciding that s/he made a good choice. That Canada chose them as much as they chose Canada.

Income Tax Law in Canada: Five Things You Need To Know

Card Money from New France. Photo Credit: The Canadian Paper Money Society.

People get really worked up about taxes. Crazy kind of worked up. Shoot yourself in the foot, pay a dollar to save a penny kind of worked up. It doesn't have to be that way.

When I was working as a federal tax prosecutor, I would see people construct what they thought were these elaborate evasion schemes with the intent of stopping the government from getting any of "their" money. Turns out if they had been keeping proper records, and filed a proper tax return, the government would have owed them money!

They expended immense time, effort and expense, fearful the government was going to grab a big chunk of the income they had worked so hard to bring in, only to find out when we uncovered whatever evasion scheme they had dreamed up that they hadn't been committing  an offence after all. Didn't even civilly owe taxes. They did what they did out of ignorance, and had they been better informed about Canadian tax law they would have worried a whole lot less, and been financially better off.

Now a private practice tax lawyer in Cornwall and Eastern Ontario, I believe that disputes with the Canada Revenue Agency (CRA) can often be avoided with a little knowledge on the part of the taxpayer. Here are five things you need to know about income tax law in Canada.

1. The fact that taxation in Canada is based on a self-reporting, self-assessment system fundamentally shapes the powers, modes of operation, and rulings of the CRA and the courts. In some countries, the government tells you what taxes you owe - in Canada, you tell the government what taxes you owe. Sure the government may eventually challenge you on it - but often it won't. As a result, you need to hold onto your tax records for quite a long time in case you do get asked for them, and you need to be aware that the government possesses some pretty intrusive powers to make you and your associates talk about your taxable income.

 2. Everyone does not have to file a tax return every year. But corporations (other than charities) regardless of their tax position and individuals who have tax payable, a taxable capital gain, or who have disposed of capital property in that year must file. There are legal benefits for individuals filing every year even when they do not have to pay any tax for a particular year.

3. All "residents" of Canada are taxed on their worldwide income. The Income Tax Act deems you to be a resident if you sojourn in Canada for over 182 days in a taxation year, or you have certain connections to the Government of Canada such as being a member of the Canadian Forces. Sojourning that leads to deemed residence can amount to multiple, unconnected visits to Canada which add up to 183 days. And even if you are not in Canada for over 182 days in a year, the law may still find you to be a resident if your dwelling place, family connections, or personal property and social ties are in Canada. Although a tax holiday through moving outside Canada is attractive to a lot of Canadians, in order to terminate your Canadian residency you must sever as many ties to Canada as possible, and usually live outside of Canada for over two years.

4. The General Anti-Avoidance Rule (GAAR) of the Income Tax Act empowers the CRA to deny a tax benefit where a transaction is not undertaken for primarily bona fide purposes other than to obtain a tax benefit. The bona fide purposes do not have to be related to business reasons, and for example could be for family purposes. The GAAR will not apply where no provision of the Income Tax Act has been misused and there has been no abuse of the Income Tax Act read as a whole. When the GAAR is or is not triggered is therefore fraught with uncertainly, and it's wise to seek an advance ruling from the CRA before proceeding with a questionable transaction that might trigger the GAAR.

5. If you disagree with the Notice of Assessment you have received from the CRA, you usually have only 90 days from the date of the mailing of the Assessment to file a Notice of Objection. The first stage of a tax appeal is before an Appeal Officer within the CRA. Should you not be satisfied with the result, you have 90 days from the date the CRA mails the Notice of Confirmation to file an appeal with the Tax Court of Canada; for relatively small amounts in dispute you may choose the “Informal Procedure” which will usually be much quicker than the “General Procedure” that must be used for larger amounts of federal tax in dispute. You may seek to appeal a decision of the Tax Court to the Federal Court of Appeal within 30 days of the Tax Court judgment issuing. If you chose the informal procedure there is no route of appeal, but a more restrictive “judicial review” may be sought. After the Federal Court of Appeal, you may seek leave to appeal to the Supreme Court of Canada, but leave will usually only be granted where the issues is of "national importance."

If you're unsure about how to handle you taxes, you should: (1) call the CRA - it's an endless source of free, detailed advice; (2) see an accountant; or (3) see a lawyer who deals with tax law. Be aware that there are a lot of accountants out there who deal with tax issues and not many lawyers. For routine tax matters an accountant will usually be the way to go if you aren't getting the answers you need from the CRA, but for heated disputes or risky transactions a lawyer is the one who can give you formal legal advice and represent you in court.

Child Support Canadian Style

There have been two especially bright spots in the evolution of Canadian family law over the last fifteen years: standardized rates of basic child support, and robust enforcement mechanisms. Fifteen years really is a little hiccup in the legal temporal continuum, but it's made a big difference in the spectrum of things one can effectively fight about or avoid in family law. Yes, it's still possible to fight, and to avoid, but both tactics are considerably less effective than they used to be when it comes to child support.

All parents have a joint responsibility to financially support their children, according to their respective means and child expenses. Ontario Child Support Guidelines (and their equivalents under federal and other provincial laws) mandate fixed support payments according to income of payor, subject to limited exceptions for shared custody or undue hardship, and in addition to special and extraordinary expenses (things like orthodontists, summer camps, or college expenses). Basic upport is paid according to the “table amount” which is pegged to income and other expenses are split between the parents according to ratio of incomes.

For example, if the mother earns $50,000, the father $10,000 per year, and the child lives with the father most of the time, then extraordinary expenses would be split 80-20. The mother would also pay the father monthly support at the table level for someone earning $50,00 per year. And the payor must provide the recipient with confirmation of income each year, such as from line 150 of an Income Tax Assessment.

Support enforcement is possible with a court order and the assistance of the FamilyResponsibility Office (FRO) (or equivalent in another province) to garnish a payor’s employed wages or bank account, seize RRSPs, put a lien on the payor’s house or other property, suspend the payor’s driver’s licence or federal licences/privileges like a passport, deduct support debt from income tax refunds or EI benefits, or even jail a defaulting payor for contempt of court. Interjurisdictional support enforcement within Canada is now coordinated among provinces - so you can enforce a support order against a parent who has moved to another province in a fairly straight forward manner. Out of country enforcement is also possible, but it gets a lot more complicated.

Support calculation and enforcement will still be challenging against a parent who quits his job and flees the country - though no longer having a passport could put a crimp in his long term plans - and those who are self-employed will continue to be a bit more difficult to pin down as to income and garnishment, but for the majority of Canadians who will live in Canada throughout their lives, and hold jobs as employees receiving fairly predictable fixed pay cheques, calculating and collecting child support is now mainly a question of time and effort, rather than some kind of lottery.

Two good links to leave you with today:

Because LifeGoes On … Helping Children and Youth Deal with Separation and Divorce - a good Health Canada publication of a few years back which would have been long forgotten in a dusty federal government publication warehouse were it not for the wonders of the Internet (it seemed in my previous government jobs we would get 100,000 copies of a booklet printed, and manage to give away 10,000 copies);

www.mysupportcalculator.ca - gives you an accurate estimate of spousal and child support owing according to income and where you live within Canada, brought to you by the people who create family law calculation software for lawyers.

Everyone Doesn't Have to Lose in Family Law: Child Custody and Access

Photo Credit: Glen Campbell. 

If people have been unhappy about lawyers and the courts for a long time, they've been especially unhappy about outcomes in family law cases - though for only the last few decades, since prior to that time family law was a niche practice in a BNFD world - before no fault divorce. 

This dissatisfaction is unfortunate, because the family lawyers are among the more committed members of the profession I know - there isn't a lot of glory in it, the clients often can't afford to pay much, and protracted litigation often leads to lose-lose results. It's also likely the area of legal specialization with the highest lawyer burnout rate - they usually don't quit law completely, they just get out of family law, adding to the already serious shortage of lawyers willing to take on these kinds of cases. 

I practice family law myself at least in part because of the shortage of available lawyers, and because I believe the results are perhaps as crucial to client happiness as any kinds of legal results can be. Because this is a relatively new area of the law, it remains a very dynamic one where courts and legislatures are constantly creating new principles. One set of principles which has stabilized of late involves child custody and access.

Everyone now agrees that the best interests of the child are the key consideration when making decisions about child custody and access. The law throughout Canada on this topic is pretty similar, but what follows focusses especially on Ontario law.

Custody and access can be agreed upon Informally, in a Parenting Plan, in a Separation Agreement, or by Court Order. Choice of means to agreement depends on ability of parents to communicate and the need for future enforceability (the more formal the agreement, the more enforceable it will be). Negotiation, mediation, arbitration, and collaborative family law are all viable, less expensive, and potentially more effective alternative dispute resolution (ADR) processes to court-based processes.

Having custody means you can generally make decisions about care, education and religious instruction unless agreement or court order says otherwise – but views of non-custodial parent can’t be completely ignored and the non-custodial parent has right to general information about these decisions and welfare of child. Joint or Shared Custody means both parents share decision making – although it may not mean the child spends equal amounts of time living with each parent. Supervised Access can be agreed to or ordered by a court where there are concerns about child safety, parent safety, or child return.

The federal Divorce Act s. 16 considers the best interests of child to be “as determined by reference to the conditions, means, needs and other circumstances of the child.” Courts are prohibited from taking past conduct of a parent into account unless relevant to ability to parent. Sub-section 16(10) promotes maximum contact with each parent. The provincial Children’s Law Reform Act governs where there are no divorce proceedings. It's more explicit than the Divorce Act in defining “best interests,” including the child’s preferences, stability of environment, and abilities of parents.

Courts will often maintain the status quo, so initial informal arrangements concerning custody, access and parenting can become very important factors in the longer term. While a court may order an Assessment of the needs of the child and ability and willingness of the parties, such assessments are time-consuming, expensive, intrusive and will not finally determine custody and access issues (which are left to the court to decide).

A court order may also be sought to involve the Office of the Children’s Lawyer, either to have a government-funded lawyer appointed to represent the interests of the child (unlikely if the children are very young and can’t express preferences), or to have a social worker assigned to conduct a Clinical Investigation which will be similar to a Custody and Access Assessment except be funded by the government – however the Office of the Children’s Lawyer can decline a file. 

While it's hard to say whether people fall to fighting more over money or children when relationships break up, it's certain that disputes over children have the potential for lasting much longer and taking a much greater emotional toll. The legal lessons of custody and access for separating parents are:

• ideally, be aware of the law of child custody and access before you separate;
• try to take an objective view of what others will perceive to be in the best interests of the children; 
• structure your proposed parenting plan around those best interests;
• don't take an extreme position that forces a court to be the final decision maker about those best interests, instead be proactive in attempting to agree on a plan that is acceptable to both parents;
• use every ADR tool available to retain some control over the form the final custody and access agreement will take, and to limit your legal fees;
• it will be expensive, time consuming, and difficult to enforce every detail in a child custody and access agreement through a court - if you run into compliance difficulties, return to those ADR tools and use the courts as a last resort. 

The Top Ten Principles of Canadian Privacy Law For Business

It's funny how people like lists of ten. Like David Letterman's Top Ten List that started in 1985 with Top Ten Things That Almost Rhyme With Peas. It seemed not such a promising beginning, but it certainly appears to have worked for him.

Type TOP TEN LISTS into Google, and you get such oddities as Top Ten Unusual But Fascinating Cloud Formations, Top Ten Superstitious Hockey Players, and my personal favourite: Top Ten Rescuers Made to Regret it By the Rescued.

And so in this long tradition of august knowledge enhancements, I give you Top Ten Principles of Canadian Privacy Law for Business. Perhaps not as amusing as some other lists, but hopefully more useful.

For personal information to be validly collected by a business under Canadian law, you've generally got to comply with the following top ten principles:

1. Accountability – must designate individual(s) within your organization as responsible for privacy.

2. Identifying Purposes – at or prior to time information collected.

3. Consent – must be informed and can be withdrawn, but may be granted through various means.

4. Limiting Collection – to that which is necessary for identified purposes of collection.

5. Limiting Use, Disclosure, and Retention – to purposes for which collected, except with consent or as required by law.

6. Accuracy – only as necessary for purpose.

7. Safeguards – appropriate to sensitivity of information.

8. Openness – about organization's policies on personal information management.

9. Individual Access – to existence, use, disclosure and content of own personal information that has been collected, including ability to challenge accuracy and completeness of information.

10. Challenging Compliance – create accessible procedure to receive and respond to complaints.

They're all based on principles developed by the Canadian Standards Organization, and were later incorporated into the Protection of Personal Information and Electronic Documents Act.

The bottom line is, regardless of how small of a business you are running, if you're collecting personal information - and it' s almost impossible to run a business without grabbing some kind of personal information - you should have a policy that accords with the above ten principles. It can be a really simple policy, but you need something. If you've got a larger business - or a smaller one that collects a lot of personal information - you should probably be speaking with a lawyer or consultant about your obligations. Check out the site of the Privacy Commissioner of Canada for more details. 

Surviving in an Information Universe: What Businesses Need to Know About Privacy Law

For anyone in the Cornwall area next week, I'll be giving a privacy law for business talk at the Chamber of Commerce's Bizfest. Hope to see you there.

Pardoning the Pardon

Collins Bay Institution, established 1930. Photo credit: Parole Board of Canada.

Pardons have been around for thousands of years. They're used in various forms by virtually every country on earth as a means of acknowledging that an offender has paid his or her debt to society, and should be fully welcomed back into the community fold without the ongoing stigma and legal limitations that accompany a criminal record.

The record usually isn't erased, but it's segregated, and domestic legal restrictions accompanying a criminal conviction will often be lifted - although this won't address how other countries treat someone convicted of an offence.

In Canada, it's the Parole Board of Canada who handles Pardon applications. The vast majority of people who submit the correct and complete paperwork get a Pardon after waiting the required period of time following the completion of their sentences - the more serious the offence, the longer the waiting period.

Until 1995 applying for a Pardon in Canada was free. Then a $50 cost recovery fee was imposed. Not too steep.

Fifteen years later - in 2010 - it tripled to $150, supposedly reflecting the true cost of the process. Getting a little pricey for those of modest means, but hey, passport fees went up a lot as well. A whole year later, the government announced plans to more than quadruple the fee - to $631. More than a month's income for many of those stuck on welfare.

The Parole Board of Canada launched a public consultation on the new fee. 1074 submissions were made opposing the fee. 12 supported it. A ratio of 90 to 1 against.

Next, the Government of Canada's proposed Safe Streets and Communities Act which is currently before Parliament and would: (1) completely eliminate the word "pardon" and replace it with "record suspension"; (2) almost double the waiting periods after completion of sentence for making a pardon application; and (3) introduce a three strikes rule making people convicted a certain multiple offences completely ineligible for pardons.

So what's someone who has been considering on and off over the last many years of applying for a pardon to think of all this? APPLY NOW.

With waiting times for record request responses prior to being able to make your formal pardon submission, you might not be able to beat the changes in the system. But no dates have been set for any of the changes and the legislation hasn't even been passed by Parliament yet, so you have a good chance if you act now. Pardons will still exist later, but they won't be called Pardons, you will have to wait longer, it will cost you a lot more, and the rules might become increasingly difficult to comply with. There appears to be no Pardon for the Pardon.

Anyone wanting to apply for a Pardon has three options:

(1) hire a lawyer;
(2) hire a pardon consultant service;
(3) do it yourself.

All three are completely viable options. Number three is definitely the cheapest. However there may not be a lot of cost difference between numbers one and two - don't assume lawyers will always be a lot more expensive. I assist people with their pardon applications, and my fees aren't a lot different than a pardon service. With a lawyer, in Canada you are guaranteed insurance and professional accreditation. If you decide to go with a pardon consultant service - and many people do - just make sure you check out their credentials.

One consultant service I have heard good things about is The Commissionaires, which is largely staffed by former military and police personnel, and able to provide fingerprint as well as document preparation services. Be aware that not all of their offices offer fingerprint or pardon services. In Eastern Ontario, you need to deal with head offices in either Kingston or Ottawa.

Whatever route you choose to pursue, I urge you not to wait any longer - just do it.

Been Wondering About Policing In Eastern Ontario?

Because I know all my readers have been dying for a brief run down on law enforcement operating in Eastern Ontario, and since I'm a criminal defence lawyer in Cornwall, Brockville, Alexandria and elsewhere in the area, I thought I would offer some pointers on knowing who the players are. It's a bit more complicated than in some big cities, where just one police services looks after everything (or almost everything). But it is pretty typical of the layers of criminal and regulatory law enforcement which exist in many countries with a federal systems of government.

First, we've got the Ontario Provincial Police operating several rural detachments. They're the third largest police service in Canada (after the RCMP and Toronto Police), boasting around 5,500 officers, about 1000 of whom are based in what they call the "East Region." They patrol all the major highways, the towns without police services, and the countryside. Personally, I find them very responsive because they provide local, small town service backed by provide-wide resources.

First OPP Highway Patrol Car 1941 Chevy

Second, we've got the Royal Canadian Mounted Police. To my readers outside of Canada, they're probably the ones you've heard of. While they have a presence all over Canada, including at the training academy in Regina where I've taught, in Ontario they don't do "response" policing. They limit themselves to "federal" policing, including in my area operating the Cornwall Regional Taskforce devoted in large part to border smuggling issues. In addition to their land vehicles, they have a long history of operating aircraft and vessels - including one called the Nicholson which I used to ride around in as H.M.C.S. Nicholson after its transfer to the Royal Canadian Naval Reserve where I served as a Master Seaman.

We also have the Cornwall Community Police Service, which while only policing within the boundaries of the City of Cornwall, still deploys almost 100 officers.

Last, but not least, is the Canada Border Service Agency who controls customs and immigration entry and exit for Canada, and whose primary location in my area is near the Cornwall international border crossing. We also have lots of other regulatory enforcement agencies operating in the area, but the CBSA is by far the largest presence.

CBSA Detector Dog Program

Feel better, now that you've been able to start your collection of law enforcement trading cards?

How Reliable Do You Think Your Memory Really Is? The Hazards of Eyewitness Identification

I used to think I had a pretty good memory. Not for the "remember to get the milk and put out the garbage" kind of thing - though I have been working on improving that - but for the key details of major life events, like what someone looked like. Now I'm not so sure. 


Eyewitness identification is a key component of most prosecutions. That dramatic television moment, where the witness slowly but firmly raises his arm, points at the accused, and cries out "That's him, Your Honour!" The fact that the "him" might be wearing an orange jump suit and shackles still doesn't completely negate the value of that in-court identification. But increasingly judges are discounting that in-court proof of what is always an essential element of the prosecution's case: identity. 


A New Jersey case recently relied on an exhaustive study into the perils of in-court eyewitness identification. Faulty eyewitness identification was cited in the vast majority of U.S. wrongful conviction cases. The courts now have been given a host of factors to consider in weighing whether there are sufficient surrounding factors of reliability to permit admission of the evidence. 


But the question remains, should a witness be barred from identifying the accused in court if there aren't sufficient circumstantial guarantees of reliability, or should the testimony of the witness simply be given less weight?

Have a Favourite Court House?

The thing about being a litigator, especially one who practices mostly criminal law, is that I spend a lot of time hanging out at law courts. I know not everyone likes to see the inside of a courthouse, but what about the outside? I think courthouses have some of the best architecture in Canada. From the historic Georgian to the Post-Modern, we seem to measure ourselves by how interesting and impressive our courthouses are. But while their interior functions are really quite utilitarian and uniform anywhere you go, the buildings vary greatly.

From the Arthur Erickson designed Vancouver Law Courts where I was called to the British Columbia Bar (but all that glass had started to develop more than a few leaks in the frequent Pacific coast rains)...

Photo credit to the Canadian Encyclopedia. 

...to the Old City Hall Courthouse of Toronto, reputed to be the fourth busiest in North America and where I started my prosecutor days doing "Liquor Court" in a very old room under one of the gables (though I never saw any of the well-known ghosts)...

Photo Credit to Paulo Barcellos Jr.

...our courthouses seem to define our identities. 

I've practiced in stately enduring structures like the oldest still operating courthouse in Canada of Annapolis Royal, Nova Scotia dating from 1836...

Photo credit to Nova Scotia Dept. of Tourism, Culture & Heritage.

...but also in temporary spots like strip malls and the upstairs of Lion's Club halls. They all had their charm, though the newer ones have a propensity of getting torn down after their few decades of usefulness leads to a losing battle against structural decay and overcrowding. 

So, do you have a favourite, wherever you might be from? Let me know. 

Hate Speech, Unmoderated Comments, National Media and Free Expression

 "He's a liar, a cheat, and a scoundrel !" (Potentially defamatory, unless proven to be true)

"They're scum, and they all deserve to die!" (Potentially hate propaganda, truth tests irrelevant)

As a constitutional lawyer, I'm all for free speech. Lots of national constitutions guarantee it, like s-s. 2(b) of the Canadian Charter of Rights and Freedoms which protects "freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication." And as Canada's past Director of E-Business Development, I recognize the economic value that free speech can build in online communities.

But the legal reality is that there are limits to online speech. In Canada s. 1 of the Charter says that its guarantees are "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." Laws against defamation and hate, here and elsewhere, check precisely what can be said about whom.

Courts and public discourse are increasingly having to grapple with liability for freedom of expression in the age of the Internet Economy. When I was at the 5th Internet Governance Forum last year in Lithuania, I got to chatting with the ever dynamic and smart Brazilians who were becoming increasingly fearful that major Internet Service Providers (from Google on down) would pull up stakes if the endless barrage of defamation-related civil and criminal litigation brought against them for commentary posted by users of their products (like bloggers) did not diminish.

And Brazil is just the current leader on the beach of shifting Internet defamation sands. Even in places like the United States where courts haven't been overly sympathetic to Internet defamation lawsuits, there are risks to guard against. Courts can't even agree on when whether Internet defamation should lead to higher than normal damages because of its wide distribution, or lower than normal damages because no one takes everything they read on the net seriously (check out this most readable Alberta Law Review article).

However, the thing that's been really bothering me lately is that court cases and public discourse seem to have focused on laws of defamation which protect reputation, rather than on laws prohibiting hate propaganda which protects peoples' lives. Grey vagueries and consequences of Internet defamation should NEVER be confused with hurtful and sometimes deadly certainties of Internet hate propaganda.

The Canadian Criminal Code has this to say on spreading hatred:

Public incitement of hatred
s. 319. (1) Every one 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) Every one 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.
Defences
(3) No person shall be convicted of an offence under subsection (2)
(a) if he establishes that the statements communicated were true;
(b) if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text;
(c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or
(d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.

These laws apply to public Internet communications. Other countries have similar laws.

There are lots of dark Internet corners with private forums where hate will fester for those who look hard enough, and few resources available to track all of them down. But where we have public highways of the Internet bathed in the spotlight of national media offering users the opportunity to post comments, there may be a greater obligation to take reasonable steps to stop the spread of hate through widely read commentary appended to articles and videos.

I'm not talking about all you diligent bloggers off in blogoland being read by dozens, hundreds or (gasp) thousands of readers per day (I think I have a ways to go yet to even get into the dozens realm). I rarely see offensive blog comments, and when I do blog owners usually take care of them pretty quickly.

And I'm not wading into ongoing debates over the liability of third-party Internet Service Providers who merely provide the technological means for millions of content creators to do their thing (not unlike a telephone company providing the means for millions of verbal conservations, good and bad).

What I'm asking you to think about is the responsibility of organizations creating some content for millions of users a day to control the comments being appended to that content. News sites seem to break down into four categories of comments policies:

1. those that prohibit all comments - no problem there on the hate front;

2. those that moderate their comments firmly and in advance - rare for there to be a problem in the face of firm screening policies and diligent moderators;

3. those that require users to register a supposedly true identify to guard against anonymous hit and run attacks - while several media organizations have been considering ending anonymity due to this argument, some maintain that only firm moderation will do; and

4. those that take down offensive posts only after complaints - an after the fact moderation.

Canadian media are taking different approaches to the online hate commentary problem. Some have been subject to criticism due to comments posted on their sites. What I think all media need to consider here is what is really being accomplished by permitting online comments to link and immediately follow their creative content, and if they think that significant value is being created by comments on articles and videos, are they willing to put significant resources behind keeping those comments to an appropriate level.

Careful moderation (and sometimes editing) was always the rule for publishing letters to newspaper editors, so why not for online comments? If comments are appearing on a branded website, and being associated with carefully crafted creative content, why not impose reasonable controls in advance of the comments appearing?

Too many comments? Too difficult? Too expensive? Then why permit the comments in the first place?

As a white English speaking male from a "developed" country, I'm not the one against whom problem comments are aimed. But I feel I'm the one who needs to speak out about the problem. As a defender of free speech and freedom of the Internet, I'm also a defender of those who get attacked by that speech and through Internet means. I'm intolerant of intolerance.

Many Internet hate victims don't yet benefit from easy Internet access themselves. Others can't be expected to spend all their time tracking down and responding to the hate. And really, what is an appropriate response to hate anyway? At the very least, it needs to be pushed to the margins of the web. It's not a question of censorship, it's a question of human rights.

So What's All the Fuss About Aboriginal Rights?

It's a rather small rectangular light on the cockpit instrument panel. It is, appropriately enough, red. But not all that impressive for the word emblazoned across it: "STALL." It's flashing right now, accompanied by an equally unimpressive, plaintive "baaa", "baaa", "baaa" sounding like a highly alarmed sheep of the highlands being chased by an overly-amorous Scot.

I'm in a twin-engine Piper Navajo Chieftain that I've chartered. It's just taken a hard left turn, and is attempting to drop from 5000 feet down to zero in too short a time. First time the pilot has been into this gravel strip. Seems he's waited a little too long to start his descent, but can't say I can blame him with all the natural obstacles that require dodging.

We've just shot up a fjord known as Rivers Inlet on British Columbia's central coast: beauty like the stuff of movies. Waterfalls propelled from sheer vertical mountainsides. Mountain goats like fleas picking their way across those same sheer faces. Invisible salmon below, deciding if it's time to make a run back up the home tributary.

At the end of the fjord is a very short river - the Wannock - followed by the long narrow Owikeno Lake that's very similar to the fjord except for one being fresh water, the other salt. Fjord, river and lake are all compressed by vice-grip mountains running along their shores. The folks I've come to see live out their lives on a small amount of flat habitable land running along the shores of that short but important river, a river which historically had the third greatest salmon run on the west coast. They're the Wuikinuxv, and the Government of Canada has given me a mandate to settle their Aboriginal title claim with them. It's early 2004, and talks have already been proceeding sporadically for several years.

We kept the Wuikinuxv waiting a long time. Their then-Chief Joseph Chamberlain speaking through a translator told the Mckenna/McBride Commission (a government commission investigating the territory of Aboriginal reserves in British Columbia) way back on a Saturday afternoon on August 16th, 1913:

We want to get the whole of River's Inlet, from Koeye to the lake – Wuikinuxv Lake. The Whiteman wants to take all of our land and we are in the position of men who have been pushed half way to the water off our land, and it would not take much to push use off the land into the deep water altogether.

When a process was finally set up a mere eighty years later to deal with the Aboriginal title claims of the Wuikinuxv and numerous other Aboriginal peoples in British Columbia who had never signed treaties with the Crown, the Wuikinuxv laid claim to 6783 square kilometers – an area a bit smaller than Puerto Rico, and a bit bigger than Trinidad and Tobago. Almost no one else lived in this remote fly-in territory. Some loggers and commercial fishermen passed through now and then. But you don't need remote territory to have a claim; we also had groups in downtown Vancouver.

Aboriginal rights are nothing new in Canada. They existed in 1492, still continued in 1763, and even survived in 1982. Over this 500-year period, judges and legislators have shed a little light on what they're all about. And of course, Aboriginal peoples have had a thing or two to say about them as well. It's easiest to start not at the beginning (though for those who like to start stories there, I highly commend to you the great book 1491 by Charles C. Mann), but only around 30 years ago when s. 35 of the Constitution Act, 1982 codified what this Aboriginal rights thing was all about:

s. 35(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. (2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada.

What this meant was that the government couldn't go around any more unilaterally extinguishing rights, that aboriginal rights could be separate from treaty rights, and that there are three kinds of Aboriginal peoples in Canada.

There's unfortunately lots of mythology which has developed around what those rights may or may not be. Mythology that hasn't helped the cause of Aboriginal-Crown relations in Canada. Perhaps the most key concept to remember is that they are collective rights exercisable by individuals; in a day and age of individualistic rights, this collective-rights concept might strike one as a little strange, but really it makes a lot of sense as it controls the historic continuity of who the rights used to belong to and who they have been passed down to.

It means that anyone with some Aboriginal ancestry - for which an awful lot of Canadians who have been here for a few generations might qualify  - can't simply walk out of their downtown Toronto condos and start exercising what they claim are their rights. But it also means that rights can continue collectively notwithstanding that those individuals who possessed rights at the time of first contact or treaty signing with Europeans aren't around anymore. It's not quite the same as non-Aboriginal property rights continuing after an individual passes on, but most seem to agree that individual inheritance is fair. So why not collective inheritance? I can tell you about those rights in future posts, but this is at least a start.

The wheels of the plane hit the gravel strip. We stop quickly; lots of runway left! No more flashing lights or alarms.

Unfolding ourselves from the narrow seats arrayed along the interior of the fuselage, we duck our heads as we exit the aircraft. We inhale moist temperate rainforest scents, and wonder if grizzlies have come down to the village to feed on the plentiful berries. The Wuikinuxv are waiting for us with a van to drive to the village to start our negotiations.

Are Mandatory Minimum Sentences a Mandatory Necessity?

Don't do the crime,

If you can't do the time

It's said that it just don't pay.

But what good's working hard

When all they give you is your cards

And you know there's not much you can say.

UB 40, from the album UB44, released September 1982

But what is the time? Should it be a matter of: "steal one loaf of bread, get x sentence; steal three loaves of bread, get triple the sentence?" Or should our legislators only provide general guidelines to the public and courts about what that "time" might be, and leave it up to individual prosecutors, defence counsel and judges to hash out sentences custom crafted for each offender and offence?

Back in 1998, I was in the Ontario Court of Appeal in R. v. McDonald defending four-year mandatory minimum sentences for certain firearms-related offences. The claim was that they violated s. 12 of the Canadian Charter of Rights and Freedoms which protects against "cruel and unusual treatment or punishment." Lengthy seven year mandatory minimum prison terms for importing drugs had already been struck down in 1987 under s. 12 in R. v. Smith, the argument being that the harsh minimum didn't take account of someone like a first offender who was importing a marijuana cigarette for personal consumption. Although the Ontario Court of Appeal expressed discomfort with the sentence in my case, in the end they didn't find four-year mandatory minimum for serious gun crimes to be unconstitutional. 

A lot of the argument supporting mandatory gun minimums in the late 1990s revolved around guns being serious and somehow different. I didn't spend of lot of time contemplating that the same argument could be used for imposing mandatory minimums for virtually any type of offence.

In 2011 we now have a whole lot of mandatory minimums on the books, and a whole lot more headed down the legislative pipeline. Added to those firearms mandatory minimums, we have mandatory minimums for offences against children, mandatory minimums for impaired driving related offences, and of course that very longstanding mandatory minimum - life - for first or second degree murder. 

"Well, is that really all so bad?" you say. Those are, after all, some quite serious offences. The problem lies in the shape of things to come. Once you get addicted to mandatory minimums, there seems to be a great temptation to impose them everywhere. 

Shortly after I started serving as a Federal Prosecutor, Parliament codified sentencing "purpose and principles" in s. 718 of the Criminal Code:

718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

There have been debates as long as there's been organized criminal law over which of these points to emphasize when it comes to settling on a "fit" sentence for an offender and offence.

While the term "retribution" may have largely disappeared from sentencing vocabulary, it still hides inside denunciation. Deterrence has always remained popular, but alas it seems to have a spotty track record among criminologists who study these things; there's some evidence to support that criminalizing conduct and prosecuting people for it probably has some deterrent effect, but not for the proposition that harsher sentences will make people think twice and thus reduce crime rates. Separation from society has been shown to infinitesimally lower the commission of some types of offences (by a few percent), but by that argument locking everyone up would achieve the best result. 

While rehabilitation became the flavour of the 20th century, it still faces lots of challenges - some offenders and offences respond well, and some don't. Reparations, responsibility and acknowledgment of harm are wrapped up in concepts of restorative and transformative justice, which I'm a big supporter of, but again they don't work for a number of offenders, offences and victims.

Centuries of evolution of legal rules of evidence and procedure means that the law is now pretty good at assigning blame: determining who should be held responsible for what. There will always be critics of unjust results on the blame front, but where the law really struggles is on translating that blame into consequences. For civil tort blameworthiness the law translates serious bodily, mental or property injuries into money - "lost an arm, and it was his fault, well - he's got to pay you x." But money can never equal an arm. 

Same with the criminal law: "So he beat you up and broke your arm. Well that's worth y punishment." But a fine or imprisonment is never going to be equivalent to a broken arm. 

The criminal law has even greater problems with offences where society as a whole is the victim, which is why sentences for offences like drug dealing are all over the map. How do you get from: (1) drugs are bad, to (2) we are going to criminalizes dealing drugs because they are bad, to (3) Bob is sentenced to three years and 27 days for dealing in drugs? Usually with a lot of soul searching on the part of judges, prosecutors and defence, who look at what others with similar backgrounds have received for similar offences.

Parliament already decides on what conduct should be criminal, and on what the maximum penalty should be. Trial judges are already kept in check on how low (or high) they can go on a sentence by Courts of Appeal overturning their sentences if they are unfit. So do we really need mandatory minimums? And if so, how many? And how harsh should those minimums be?

The Research and Statistics Division of our own Department of Justice Canada (who I can attest from personal experience employs some very skilled criminologists) released a study back in 2005 entitled Mandatory Sentences of Imprisonment in Common Law Jurisdictions: Some Representative Models, which found: 

"There is clear evidence that even in the United States, where support is stronger for mandatory sentences, public support for the concept is declining. For example, in 1995 over half of the sampled public in the US held the view that mandatory sentences were a good idea (Roberts, 2003.) In 2001, this percentage had declined to slightly more than one-third of respondents (Peter D. Hart Research Associates, 2002; Roberts, 2003.) In fact, over half the polled public in the US now favour the elimination of “three-strikes” mandatory sentences (Peter D. Hart Research Associates, 2002.) The most recent polling on the issue of mandatory sentencing comes from the state of New Jersey. When asked whether mandatory jail or mandatory drug treatment was the  more effective approach to non-violent offenders, respondents chose treatment over imprisonment by a three to one ratio (Eagleton Institute of Politics Center for Public Interest Polling, 2004.) Three-quarters of the sample favoured allowing judges to set aside mandatory sentences “if another sentence would be more appropriate” (Eagleton Institute of Politics Center for Public Interest Polling, 2004.) Taken together, these results suggest that the impact and realities of mandatory minimum sentences are starting to be understood by the general public."

The report concluded "there is clear evidence that several jurisdictions are now either repealing or amending these punitive law" and that "the experience with mandatory sentencing legislation in a number of countries has shown that these laws do little to promote public confidence in the sentencing process."

And six years later, what's Canada up to? Take a look at a National Post piece from last May: Crime and Punishment: Inside the Tories' plan to overhaul the justice system. Or even better, check out the Legislative Summary of Bill S-10 (written by the amazing researchers at the Library of Parliament, THE place to go online for great detailed background info about any recent Canadian laws) which provides a great history of drug sentencing policy in Canada. 

Though the Bill S-10 is complicated (and it's not even the only proposed mandatory minimum bill out there), the bottom line is if passed it could lead to lots of minor drug dealers and growers (with as few as five plants) going to jail for a long time. Again, you say, not a bad thing. Well, it depends on what you're trying to accomplish. The Library of Parliament summary notes that S-10 likely won't cut down on drug use or trafficking and will cost great amounts of money. 

So what do you think? Are mandatory minimums a good idea? Frankly, I have mixed feeling about them myself. 

Perhaps some minimum fines for regulatory offences might be a good idea - like Ontario's mandatory minimum fine for driving without auto insurance which ensures that the cost of the fine is not cheaper than the cost of the insurance. And certainly for the most serious of offences and offenders - murder being the best example - a certain degree of denunication and incapacitation will always be required through mandatory minimums. But if, as is quoted in the Library of Parliament's Summary, "despite 25 years of harsh mandatory minimums, disproportionate numbers of the poor, the young, minorities and the drug addicted have been thrown in US jails with no impact on the drug business itself, which has flourished," then what's the point in these minimums? That we can all feel good that "bad" people are getting their just desserts?