fbpx
  • Latest News
  • Trending News
  • All
  • Latest News
  • Featured
  • Industry News
  • Legal Governance
  • Constitutional Law
  • Op-Ed
  • News Archives
  • Alternative Dispute Resolution
  • Analysis
  • Bankruptcy Law
  • Consumer Protection Law
  • Cyber Security Law
  • Family Law
  • Disability Law
  • Employment Law
  • Environmental Law
  • Estate Law
  • Housing Law
  • Human Rights Code
  • Immigration Law
  • Insurance Law
  • Intellectual Property Law
  • Privacy Law
  • Tax Law
  • Workers Compensation Board
Rolling back Harper-era sentencing laws

Rolling back Harper-era sentencing laws

April 4, 2022
More than 10,000 Canadians received a medically-assisted death in 2021: report

More than 10,000 Canadians received a medically-assisted death in 2021: report

August 13, 2022
Quebec Superior Court suspends Bill 96’s translation requirement until constitutionality determined

Quebec Superior Court suspends Bill 96’s translation requirement until constitutionality determined

August 12, 2022
The Ontario government has given Maggie an ultimatum: the disabled teen can lose her funding or her independence

The Ontario government has given Maggie an ultimatum: the disabled teen can lose her funding or her independence

August 12, 2022
FBI took 11 sets of classified material from Trump’s Mar-a-Lago home while investigating possible Espionage Act violations (US)

FBI took 11 sets of classified material from Trump’s Mar-a-Lago home while investigating possible Espionage Act violations (US)

August 12, 2022
Ontario class action settlement reclassifies volunteers as employees, setting new precedent

Ontario class action settlement reclassifies volunteers as employees, setting new precedent

August 11, 2022
Availability of Judicial Review in SABS Disputes

Availability of Judicial Review in SABS Disputes

August 10, 2022
Are masking policies still valid?

Are masking policies still valid?

August 10, 2022
Justice Canada releases commission report on impact of lack of legal aid in family law disputes

Justice Canada releases commission report on impact of lack of legal aid in family law disputes

August 9, 2022
Harmonized sales tax part of maximum amount of attendant care benefits owed by insurer: court

Harmonized sales tax part of maximum amount of attendant care benefits owed by insurer: court

August 8, 2022
New rules coming next month to help Canadians with cancelled and delayed flights

New rules coming next month to help Canadians with cancelled and delayed flights

August 3, 2022
Stephen King set to testify for govt in books merger trial (US)

Stephen King set to testify for govt in books merger trial (US)

August 2, 2022
New law program in Quebec to begin next fall, a first in 50 years

New law program in Quebec to begin next fall, a first in 50 years

August 2, 2022

Defence lawyers threaten job action over Legal Aid Alberta funding

August 1, 2022
The Impact of the Lack of Legal Aid in Family Law Cases

The Impact of the Lack of Legal Aid in Family Law Cases

July 29, 2022
SCC rules that when someone is required by their partner to wear a condom but do not, they could be guilty of sexual assault.

SCC rules that when someone is required by their partner to wear a condom but do not, they could be guilty of sexual assault.

July 29, 2022
Big Plastic suing feds over single-use ban — again

Big Plastic suing feds over single-use ban — again

July 29, 2022
Tim Hortons offers coffee and doughnut as proposed settlement in class action lawsuit

Tim Hortons offers coffee and doughnut as proposed settlement in class action lawsuit

July 29, 2022

NBA investigating Philadelphia 76ers for possible tampering

July 29, 2022

#MeToo didn’t end sexual harassment in the workplace and vigilance remains a must

July 29, 2022
The SCC has refused to hear the appeal to declare the renewal of the state of health emergency by the Quebec government invalid

The SCC has refused to hear the appeal to declare the renewal of the state of health emergency by the Quebec government invalid

July 28, 2022
Federal privacy commissioner investigating controversial ArriveCAN app

Federal privacy commissioner investigating controversial ArriveCAN app

July 28, 2022
Kraken, a U.S. Crypto Exchange, Is Suspected of Violating Sanctions (US)

Kraken, a U.S. Crypto Exchange, Is Suspected of Violating Sanctions (US)

July 26, 2022
Ontario court certifies class action on former patients’ anxiety from notice of risk of infection

Ontario court certifies class action on former patients’ anxiety from notice of risk of infection

July 26, 2022
The stakes couldn’t be higher as Canada’s top court decides whether to hear climate class action lawsuit

The stakes couldn’t be higher as Canada’s top court decides whether to hear climate class action lawsuit

July 26, 2022
Professor Barnali Choudhury selected by EU as trade and sustainable development expert

Professor Barnali Choudhury selected by EU as trade and sustainable development expert

July 25, 2022

Abuse and harassment survivors ‘silenced’ by non-disclosure agreements fight for change to B.C. law

July 23, 2022
The Supreme Court decision on the ‘Ghomeshi’ amendments will help sexual assault victims access justice

The Supreme Court decision on the ‘Ghomeshi’ amendments will help sexual assault victims access justice

July 5, 2022
AFN Reaches $20 B Final Settlement Agreement to Compensate First Nations Children and Families

AFN Reaches $20 B Final Settlement Agreement to Compensate First Nations Children and Families

July 4, 2022

Why your options may be limited if your employer wants you back in the workplace

July 4, 2022

City directs contractors to reinstate Sikh security guards who lost work due to clean-shaven rule

July 4, 2022
  • ABOUT LITN
  • SUPPORT LITN
  • LEGAL, PRIVACY & POLICY
  • PUBLIC EDUCATION & RESOURCE LINKS
Wednesday, January 25, 2023
  • Login
  • Register for a FREE LITN account
⚖ Law in the News .com (LITN) Media 📃
  • Latest News
  • Industry News
  • Categories
    • A to C
      • Aboriginal Law
      • Access to Justice (A2J)
      • Administrative Law
      • Alternative Dispute Resolution
      • Analysis
      • Animal Law
      • Anti-Corruption Law
      • Antitrust Law
      • Arbitration Law
      • Banking and Securities Law
      • Bankruptcy Law
      • Cannibis Law
      • Civil Litigation
      • Class Action
      • Commercial Law
      • Constitutional Law
      • Construction Law
      • Consumer Protection Law
      • Contract Law
      • Criminal Law
      • Cyber Security Law
    • D to H
      • Disability Law
      • Editor’s Choice
      • Elder Law
      • Employment Law
      • Environmental Law
      • Entertainment Law
      • Estate Law
      • Family Law
      • Highway Traffic Law
      • Housing Law
      • Human Rights Code
    • I to L
      • Immigration Law
      • Industry News
      • Insurance Law
      • Intellectual Property Law
      • International Law
      • Labour Law
      • Latest News
      • Legal Governance
    • M to Z
      • Medical Law
      • Municipal Law
      • Op-Ed
      • Personal Injury Law
      • Privacy Law
      • Real Estate Law
      • Regulatory Law
      • Tax Law
      • Telecommunications Law
      • Transportation Law
      • Workers Compensation Board
  • Archives
    • 2022
      • July 2022
      • June 2022
      • May 2022
      • April 2022
      • March 2022
      • February 2022
      • January 2022
    • 2021
      • December 2021
      • November 2021
      • October 2021
      • September 2021
      • August 2021
  • About LITN
    • Who We Are
    • What We Do
    • Our Mission
    • Our Goal
    • Contact Us
    • Support LITN
      • Contribute to LITN Operations
      • Place YOUR Custom Ad on LITN
      • Engage with LITN Sponsored Ads
      • Create a FREE LITN Account
      • Subscribe to the LITN Newsletter
      • Connect, Follow, Like, Retweet and Repost LITN
    • Legal, Privacy and Policy
      • Cookie Policy (CA)
      • Privacy Policy
      • Terms and Conditions
  • Public Education and Resource Links
No Result
View All Result
⚖ Law in the News .com (LITN) Media 📃
  • Latest News
  • Industry News
  • Categories
    • A to C
      • Aboriginal Law
      • Access to Justice (A2J)
      • Administrative Law
      • Alternative Dispute Resolution
      • Analysis
      • Animal Law
      • Anti-Corruption Law
      • Antitrust Law
      • Arbitration Law
      • Banking and Securities Law
      • Bankruptcy Law
      • Cannibis Law
      • Civil Litigation
      • Class Action
      • Commercial Law
      • Constitutional Law
      • Construction Law
      • Consumer Protection Law
      • Contract Law
      • Criminal Law
      • Cyber Security Law
    • D to H
      • Disability Law
      • Editor’s Choice
      • Elder Law
      • Employment Law
      • Environmental Law
      • Entertainment Law
      • Estate Law
      • Family Law
      • Highway Traffic Law
      • Housing Law
      • Human Rights Code
    • I to L
      • Immigration Law
      • Industry News
      • Insurance Law
      • Intellectual Property Law
      • International Law
      • Labour Law
      • Latest News
      • Legal Governance
    • M to Z
      • Medical Law
      • Municipal Law
      • Op-Ed
      • Personal Injury Law
      • Privacy Law
      • Real Estate Law
      • Regulatory Law
      • Tax Law
      • Telecommunications Law
      • Transportation Law
      • Workers Compensation Board
  • Archives
    • 2022
      • July 2022
      • June 2022
      • May 2022
      • April 2022
      • March 2022
      • February 2022
      • January 2022
    • 2021
      • December 2021
      • November 2021
      • October 2021
      • September 2021
      • August 2021
  • About LITN
    • Who We Are
    • What We Do
    • Our Mission
    • Our Goal
    • Contact Us
    • Support LITN
      • Contribute to LITN Operations
      • Place YOUR Custom Ad on LITN
      • Engage with LITN Sponsored Ads
      • Create a FREE LITN Account
      • Subscribe to the LITN Newsletter
      • Connect, Follow, Like, Retweet and Repost LITN
    • Legal, Privacy and Policy
      • Cookie Policy (CA)
      • Privacy Policy
      • Terms and Conditions
  • Public Education and Resource Links
No Result
View All Result
⚖ Law in the News .com (LITN) Media 📃
No Result
View All Result
Home Industry News

Rolling back Harper-era sentencing laws

The courts can only move so fast, which is why advocates want the current government to be more agressive in repealing mandatory minimum penalties.

April 4, 2022
Reading Time: 6 mins read
1
A A
0
Rolling back Harper-era sentencing laws
Share on FacebookShare on TwitterShare on LinkedInShare by Email
 
PHOTO: Stock
 
  • Dale Smith ⁞ CBA National
  • April 4, 2022
 
 

In the final week of their winter sitting, the Supreme Court of Canada heard four cases that dealt with aspects of sentencing laws that emerged from the era of Stephen Harper’s Conservative government and its tough-on-crime focus.

Both R. v. Hills and R. v. Hilbach dealt with mandatory minimum sentences, while R. v. Sharma was about whether limiting the availability of conditional sentences violated the equality rights of Indigenous offenders. In R. v. Bissonnette the court must consider the constitutionality of consecutive periods of parole ineligibility — 25 years each — for multiple murders. The court reserved judgment on all four.

It isn’t unusual for the top court to hear related appeals together, but the grouping of these cases is noteworthy.

“Since the 2015 and 2016 decisions from the Supreme Court of Canada in Nur and Lloyd, statutory mandatory-minimum incarcerations have been at risk of being found unconstitutional,” says Eugene Meehan, a partner at Supreme Advocacy LLP in Ottawa, who was not involved in any of the appeals. “However, Canada’s legal system generally prefers to make incremental changes in the law, so it takes some time for those challenges to work their way through the courts. Often the Supreme Court will wait a few years until there’s a clear conflict in lower courts before taking an issue up again.”

Meehan notes that the Hills, Hilbach, and Sharma appeals presented the type of conflict in the law that the Supreme Court of Canada is looking for when it grants leave. In Hilbach, there were multiple sets of reasons at the Alberta Court of Appeal, including a dissent. Justice Thomas W. Wakeling went so far as to invite the Supreme Court, explicitly, to revisit its “unsound” cruel and unusual punishment jurisprudence. As well, there was dissent in Sharma.

“These cases highlight the constitutional balancing between courts attempting to uphold the Charter while also recognizing that Parliament has the authority to determine principles that govern sentencing laws,” Meehan says. “These cases all involve big policy questions. Like trying to divine juridical water with a stick, Canada’s courts are trying to find where certain punishments fit within Canadian values for criminal justice. It’s a process, an evolution, and it’s not over—to quote an Italian proverb—until the king and the pawn go back in the same box.”

Eric Gottardi, a senior partner at Peck and Company in Vancouver, who represented the CBA as intervenors in the Hills, Hilbach, and Sharma hearings, says a theme emerged.

“Some [justices] asked whether Section 15 might be a source if there was a constitutional dimension or requirement that there be at least some residual discretion in these cases where the government attempted to remove judicial discretion completely,” he says. “That was interesting and exciting to hear from the questions.”

Lisa Kerr, who serves as the director of the Criminal Law Group at Queen’s University law school, says that Section 15 questions were not surprising as its jurisprudence is complex and has gone through various iterations over the years.

“Many of us, including law professors, lawyers and judges, struggle with exactly what the Section 15 test is, and how to apply it,” says Kerr. “One of the intervenors, Emilie Tamman for the Elizabeth Fry Society, pointed out in her factum that Section 15 has had surprisingly little application in the criminal justice context, and it’s surprising because the criminal justice system has had a disproportionate impact on racialized people.”

According to Kerr, there was also a powerful Section 7 argument that the law was overbroad given its purpose. If the idea is to ensure that serious offenders are barred from conditional sentences, the law overshoots that purpose because it captures people like Sharma who are not serious offenders. Cheyenne Sharma had pleaded guilty to importing two kilograms of cocaine, contrary to the Controlled Drugs and Substances Act.

“If I had to guess, if the Ontario Court of Appeal decision is upheld, it will be on Section 7 grounds,” Kerr says.

Regarding Bissonnette, Kerr notes that the panel’s toughest questions were put to those who wanted to uphold the law, including the federal government and the various provincial attorneys general.

“The flaws of that law were really vigorously exposed,” Kerr says. “That Harper-era law was pure symbolism. Those who had multiple murder victims already had a very tough time in front of the Parole Board, and all that law did was remove the ability for those folks to go before the Parole Board before 25 years. There was no right of release at 25 years—there was only the right to go before the Parole Board, which is very risk-averse when you have multiple murder victims on your file.”

Kerr adds that the Supreme Court is responsive to the idea that imprisonment is supposed to contain an element of rehabilitation, and that life without the possibility of parole is beyond the pale in a country like Canada.

Gottardi notes that it emerged over the hearing that the mandatory minimums at issue in Hill and Hilbach were from the same legislative package as the ones struck down in Nur, while the other was from a similar 2008 legislation.

“[These are] mandatory minimum laws that were drafted using the same model or formula but were struck down in Nur and Lloyd, but it’s taken a number of years for this one to make its way up to the court, but it’s not like this was a new version of mandatory minimums that the government had recalibrated to after Nur and Lloyd,” Gottardi notes.

“We told Parliament on three different occasions now that they need to create a safety valve if they want to create new mandatory minimums or save them from a challenge, and they haven’t done anything,” Gottardi says. “Should [the courts] create one? Obviously, that could potentially be viewed more as a legislative type of action than a judicial interpretation.”

Gottardi adds there is a sense of frustration in the courts that mandatory minimums cases are coming before them piecemeal. Ideally, the government would take it upon itself to address them as a whole, which would be easier on everyone, either by abolishing them as the current government has promised to or bringing them in line with other common law jurisdictions.

“It’s mind-boggling,” Gottardi says of the delay in repealing the mandatory minimums. “It can’t possibly be for fear of opening themselves up to criticism from the Conservatives for being soft on crime. Mandatory minimums across the board—there is scientific consensus that they are ineffective and they don’t make anyone any safer.”

Gottardi says that the changes are long overdue, and while Bill C-5, currently before committee in the House of Commons, would bring conditional sentences back for cases like Sharma, he notes there’s been no improvement in the mass incarceration of Indigenous people in the 20 years since Gladue.

“A little bit of criticism from the other party or in the press is a small price to pay to make any headway in that crisis, and it’s shameful that we’re not taking stronger action to fix that, when some of the fixes are easy,” says Gottardi.

According to Kerr, part of what makes Bill C-5 significant is that it would be the first time a government has repealed a mandatory minimum.

“That bill puts an end to the Harper-era experiment with mandatories for drug crimes—it takes every mandatory minimum out of the [Controlled Drugs and Substances Act],” she says. “That is a significant repudiation of that policy.”

Bill C-5 would be more expansive with respect to conditional sentences than a victory in Sharma. “That would take care of the problem in Sharma, and it would take care of a few other provisions as well,” says Kerr. “It would be meaningful restoration of judicial discretion to impose conditional sentences, really in almost every case where the sentence the judge would have imposed is less than two years. That means we can send a lot of people into strict house arrest rather than chaotic, destructive provincial jails.”

Meehan notes that Justice Michael Moldaver has announced he will retire in September, and that this may be one of his final batches of criminal law cases.

“He has been on the court over a decade,” Meehan says, calling him “the court’s criminal law eminence grise.”

“It’s an opportunity to put the finishing touches on a 32-year judicial career.”

Dale Smith is a contributor based in Ottawa

 
 

 
GOOGLE ADVERTISEMENT

Want direct access to the latest LITN content?

Stay in the loop ➞ Subscribe to LITN instant notifications.
Receive the latest content delivered directly to your device.
Unsubscribe at anytime.

Unsubscribe from LITN instant notifications
Previous Post

Cineflix workers to get $2.5 million in settlement for unpaid overtime, unions say

Next Post

Jailing Immigration Detainees Infringes on Rights

Leave a Reply Cancel reply

Your email address will not be published. Required fields are marked *

I agree to LITN's Terms & Conditions.

Latest News

More than 10,000 Canadians received a medically-assisted death in 2021: report
Medical Law

More than 10,000 Canadians received a medically-assisted death in 2021: report

August 13, 2022
7
Quebec Superior Court suspends Bill 96’s translation requirement until constitutionality determined
Constitutional Law

Quebec Superior Court suspends Bill 96’s translation requirement until constitutionality determined

August 12, 2022
7
The Ontario government has given Maggie an ultimatum: the disabled teen can lose her funding or her independence
Disability Law

The Ontario government has given Maggie an ultimatum: the disabled teen can lose her funding or her independence

August 12, 2022
7

Subscribe

Join the LITN Newsletter ➞ the latest news delivered to your inbox. Unsubscribe at any time.


GOOGLE ADVERTISEMENT

Instagram Feed

  • #LegalTechWoes #legaltech #legaltechpainpoints #legalinnovation  #legalops #legaloperations #legal
#legalgeek #legaltechs #legaltechnology | https://instagram.com/lawinthenews
Courtesy Mat Jakubowski ...silvertownlegal.com | @matjakubowski ... https://www.linkedin.com/in/mat-jakubowski | https://lawinthenews.com/
  • #LegalTechWoes #legaltech #legaltechpainpoints #legalinnovation  #legalops #legaloperations #legal
#legalgeek #legaltechs #legaltechnology | https://instagram.com/lawinthenews
Courtesy Mat Jakubowski ...silvertownlegal.com | @matjakubowski ... https://www.linkedin.com/in/mat-jakubowski | https://lawinthenews.com/
  • #LegalTechWoes #legaltech #legaltechpainpoints #legalinnovation  #legalops #legaloperations #legal
#legalgeek #legaltechs #legaltechnology | https://instagram.com/lawinthenews
Courtesy Mat Jakubowski ...silvertownlegal.com | @matjakubowski ... https://www.linkedin.com/in/mat-jakubowski | https://instagram.com/lawinthenews

Facebook Feed

Facebook Feed

Twitter Feed

Join the Conversation

Personal selections from a Canadian perspective. #Law in the #News #LITN @Law_In_The_News

News Categories

Latest Headlines

More than 10,000 Canadians received a medically-assisted death in 2021: report

More than 10,000 Canadians received a medically-assisted death in 2021: report

August 13, 2022
7
Quebec Superior Court suspends Bill 96’s translation requirement until constitutionality determined

Quebec Superior Court suspends Bill 96’s translation requirement until constitutionality determined

August 12, 2022
7
The Ontario government has given Maggie an ultimatum: the disabled teen can lose her funding or her independence

The Ontario government has given Maggie an ultimatum: the disabled teen can lose her funding or her independence

August 12, 2022
7

Subscribe to the LITN Newsletter

Join the LITN Newsletter ➞ the latest news delivered to your inbox. Unsubscribe at any time.

Website Powered By

DJT Design Studios logo

© 2022 Law in the News Media (LITN)

  • About LITN
  • Contact LITN
  • Support LITN
  • Legal, Privacy and Policy
  • Public Education & Resource Links
No Result
View All Result
  • Login
  • Sign Up
  • Latest News
  • Industry News
  • Categories
    • A to C
      • Aboriginal Law
      • Access to Justice (A2J)
      • Administrative Law
      • Alternative Dispute Resolution
      • Analysis
      • Animal Law
      • Arbitration Law
      • Anti-Corruption Law
      • Antitrust Law
      • Banking and Securities Law
      • Bankruptcy Law
      • Cannibis Law
      • Criminal Law
      • Civil Litigation
      • Class Action
      • Commercial Law
      • Constitutional Law
      • Construction Law
      • Consumer Protection Law
      • Contract Law
      • Criminal Law
      • Cyber Security Law
    • D to H
      • Disability Law
      • Editor’s Choice
      • Elder Law
      • Employment Law
      • Environmental Law
      • Estate Law
      • Family Law
      • Highway Traffic Law
      • Housing Law
      • Human Rights Code
    • I to L
      • Immigration Law
      • Industry News
      • Insurance Law
      • Intellectual Property Law
      • International Law
      • Labour Law
      • Latest News
      • Legal Governance
    • M to Z
      • Medical Law
      • Municipal Law
      • Op-Ed
      • Personal Injury Law
      • Privacy Law
      • Real Estate Law
      • Regulatory Law
      • Tax Law
      • Telecommunications Law
      • Transportation Law
      • Workers Compensation Board
  • News Archives
    • 2022
      • July 2022
      • June 2022
      • May 2022
      • April 2022
      • March 2022
      • February 2022
      • January 2022
    • 2021
      • December 2021
      • November 2021
      • October 2021
      • September 2021
      • August 2021
  • Public Education & Resource Links
  • About LITN
    • Who We Are
    • What We Do
    • Our Mission
    • Our Goal
    • Contact LITN
    • Support LITN
    • Legal, Privacy and Policy
      • Home
      • Cookie Policy
      • Privacy Policy
      • Terms of Use Policy

© 2022 Law in the News Media (LITN)

Welcome Back to LITN!

Sign In with Facebook
Sign In with Google
Sign In with Linked In
OR

Login to your LITN account below.

Forgot your password? Sign Up

Create a FREE LITN Account!

Sign Up with Facebook
Sign Up with Google
Sign Up with Linked In
OR

Please complete your registration below.

*By registering into the website, you agree to LITN's Terms & Conditions.
All fields are required. Log In

Retrieve your password

Please enter your username or email address to reset your password.

Log In
⚖ Law in the News .com (LITN) Media 📃
Manage Cookie Consent
LITN uses technologies like cookies to store and/or access device information to provide the best user experience. Consenting to these technologies will allow us to process data such as browsing behavior or unique IDs on this site. Not consenting or withdrawing consent, may adversely affect certain features and functions.
Functional Always active
The technical storage or access is strictly necessary for the legitimate purpose of enabling the use of a specific service explicitly requested by the subscriber or user, or for the sole purpose of carrying out the transmission of a communication over an electronic communications network.
Preferences
The technical storage or access is necessary for the legitimate purpose of storing preferences that are not requested by the subscriber or user.
Statistics
The technical storage or access that is used exclusively for statistical purposes. The technical storage or access that is used exclusively for anonymous statistical purposes. Without a subpoena, voluntary compliance on the part of your Internet Service Provider, or additional records from a third party, information stored or retrieved for this purpose alone cannot usually be used to identify you.
Marketing
The technical storage or access is required to create user profiles to send advertising, or to track the user on a website or across several websites for similar marketing purposes.
Manage options Manage services Manage vendors Read more about these purposes
View preferences
{title} {title} {title}
Go to mobile version