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Toronto criminal lawyer Lawrence Gridin predicts that with the passage of the omnibus crime bill into law, more Canadians will be going to jail. And, Gridin further suggests that the courts will see a jump in the number of trials that take place as a direct result of the Safe Streets and Communities Act provisions now in effect.
“We will definitely be seeing more people going to jail, and for longer periods than ever before. That is what the new laws expressly require,” says Gridin, an associate with Brauti Thorning Zibarras.
Gridin notes that with respect to mandatory sentences, “the accused can bring an application attacking the constitutionality of the new laws, but that process is expensive and not likely to succeed in many cases. To defeat the law under s. 12 of the Charter, which prohibits cruel and unusual punishment, the accused would have to show that the mandatory minimum sentence is not merely unjust, but that the penalty is ‘grossly disproportionate’ to the crime.
“The new legislation potentially violates other sections of the Charter, so it will be up to innovative defence lawyers to bring creative challenges in the appropriate cases,” he says.
“The Supreme Court of Canada in R. v. Nasogaluak, 2010 SCC 6, also left open the door for the possibility that in exceptional circumstances, a minimum sentence could be reduced in order to make up for breaches of the Charter by the state, for example, serious police misconduct. Again, this type of case will be rare, and seeking this kind of reduction will be costly for the average accused,” says Gridin.
Gridin says, if however, a judge finds a mandatory sentence to be unconstitutional, “the penalty can be struck down entirely, or it can be ‘read down’ so that it doesn’t apply to everyone in every circumstance. Either way, we can expect the government to appeal and the Supreme Court of Canada to eventually weigh in.”
Meanwhile, Gridin says, “We will definitely see more trials as a result of the new laws.
“People respond to incentives. One of the main benefits to pleading guilty is that taking responsibility is a mitigating factor in sentencing, and it generally results in a reduced sentence. If a person is facing a minimum sentence where there’s no room for a reduction, they are deprived of any benefit to pleading. For the accused, even if there is very little hope of an acquittal, that slim chance still outweighs the guarantee of a stiff sentence, so we can expect many more accused will opt to take their chances at trial,” he explains.
Gridin says that one of the most “ironic outcomes to flow from this fact is that more ‘factually guilty’ people will be going free instead of having to answer for their crimes. People who otherwise would have pled guilty will now be opting for trials and certainly some of them will end up being acquitted, perhaps because the Crown makes a tactical mistake or a key witness fails to show up to the trial.
“People also have a constitutional right, under s. 11(b) of the Charter, to have a trial within a reasonable time. With mandatory minimums, the justice system will be forced to cope with an increasing number of trials, which in turn will result in unreasonable delays. We will be having fewer trials on the merits, more accused will be suffering in jail or under harsh bail conditions while waiting to have their day in court, and ultimately some of them who would otherwise have been found guilty will winning their cases this way,” says Gridin.
“This is likely to erode the public’s confidence in our justice system, which is the exact opposite of what is supposedly intended by the new laws. That is of course to say nothing of the financial costs of the laws, or the social costs resulting from a higher incarceration rate,” says Gridin. “To see the impacts of these things, we need only look to states like California and Michigan, where even the staunchest conservatives are beginning to admit that the mandatory minimum experiment has been a total failure.
“In my view, the experiment will be an even greater failure here in Canada. Canadians have a much lower incarceration rate, have less experience with the harshness of mandatory minimums, and expect a more liberal, flexible, and holistic approach to sentencing. It is an approach that has been working: in the last quarter century, crime rates have fallen to an historic low,” says Gridin.