Something is rotten in the Province of Ontario.
And if I weren’t so upset by it, I would be inserting jokes at Ontario’s expense here.
Ever since the Newmarket region of Ontario set Canada’s record for the highest sentence ever handed down in an impaired driving case, after the Marco Muzzo sentencing, Ontario has developed a disturbing trend of issuing jail sentences to first time impaired drivers.
This is incredibly problematic and serves only to harm the administration of justice in the long term. And this blog post explains why.
Tomorrow the Supreme Court of Canada will be releasing reasons in a highly-anticipated appeal in the impaired driving world.
Richard Suter entered a guilty plea to refusal to provide a sample of his breath, after an accident causing death. He was having an argument with his wife, when he pressed angrily on the gas pedal. His intention was to hit the brake. His vehicle collided with a restaurant patio, striking several people and killing a small boy.
What is interesting about this case is that after Mr. Suter was arrested for impaired driving, he was given legal advice not to provide a sample. It is a criminal offence to refuse to blow, and this legal advice was incorrect. Mr. Suter nevertheless pled guilty, and sentenced to four months jail. On appeal, the Court of Appeal increased the jail term to 26 months. The issue on appeal was whether the incorrect legal advice gave rise to a mistake of law that ought to have allowed Mr. Suter a lighter sentence.
One very troubling suggestion by the BC Government recently was the notion that traffic ticket convictions on the driving record would soon come with increased consequences to insurance. They plan to be adding penalties to a ticket after the fact. But not only are those going to affect tickets that are issued after the changes come into effect, the word on the street is that the insurance-related consequences will be assessed to tickets that have previously been added to a person's record.
This is highly problematic, and may verge on being unconstitutional.
Not a day goes by when we do not read stories about the carnage that fentanyl is wreaking on our communities. The BC Court of Appeal has issued a stern warning for those who traffic in fentanyl: the starting point for sentencing is a jail sentence in the range of eighteen months. And given the evidence and attention about fentanyl deaths, it’s hard to cry foul at these guidelines.
As a result of the severe consequences of fentanyl trafficking, the BC Government has been repeatedly asked about what they are doing to address the situation. Some have suggested a pro-social approach, enhancing opportunities for rehabilitation for drug users. Others have pointed to studies that have shown that decriminalizing hard drugs actually leads to a decrease in deaths associated to those drugs. Others still think the answer is to arrest all the traffickers, round them up, and throw them in jail.
The Minister of Justice for Canada is currently conducting a survey about mandatory minimum sentences. On its face, this appears to be a small effort to obtain input about whether mandatory minimums are effective means of addressing criminal offences, and how to best allow judges to achieve the goals of sentencing.
However, the survey raises broader concerns about the efficacy of this proposed method. The options to choose from for appropriate sentences are limited, and the mechanisms proposed clearly show that Jody Wilson-Raybould has already made up her mind about how sentencing reform is to be achieved in this country.
The survey is, in my view, an effort to garner support for a process she has already decided to implement under the guise of engaging in public consultation.
I have concerns about what is apparent the Government wants to do. And I will outline them in this post. But I also want to implore you to take the survey, and have your views heard in the comment sections.
Here’s the link: https://surveys.ekos.com/ekos/cwx.cgi?_proj=07417SW&_lang=EN
I recently wrote about entrapment and what counts as entrapment in traffic cases. I’ve been thinking a lot lately about entrapment as the Creep Catchers have bee present in several news stories.
It gets me wondering whether Creep Catchers cases may give rise to a defence of entrapment. I believe it might.
The theory behind entrapment is rooted in an abuse of process. Essentially, it is wrong for the state to coerce citizens into committing crimes, or to set out a plan by which they wind up committing an offence. As I described earlier, a morality test constitutes entrapment.
But where do groups like Creep Catchers fall on the issue?
As of June 18, 2015 it's official: the Federal Government has passed the Victims Bill of Rights and it has been made law by Royal Assent. While there are compelling reasons to ensure that victims in a criminal trial process are heard and had a voice, the manner in which it was achieved by Parliament is not something that I believe is effective or consistent with a fair, just, and free and democratic society. The Bill functions to eliminate the rights of those charged with an offence, in favor of adding rights to victims.
Today we heard the first sentence to be given out in the Robert Dziekanski perjury trials. Constable Kwesi Millington and Corporal Monty Robinson were convicted of perjury, while their fellow officers Constable Bill Bentley and Constable Gerry Rundel were acquitted after trial. The Court sentenced Constable Millington to 30 months of jail time.
The sentence has surprised many, because it is a lengthy jail term for someone who previously had no criminal record or history of criminal behaviour. Many people have wondered why such a significant jail term was handed down in these circumstances, while arguably more serious offenders are given shorter jail sentences or even no jail.
In my last post, I discussed the changes to the BC Motor Vehicle Act that were underway. As expected, the legislation passed. Many of the changes the Government touted as positive have already come into effect, including the left-lane hog aspects of the changes. The Government made a big deal out of announcing this when it happened. But there were also changes slowly implemented that Government hasn't advertised to the public. These are the changes to the drinking and driving legislation.
An article was published on the CBC website this week, suggesting that impaired driving incidents are not properly declining due to "loopholes." Frankly, as a lawyer who deals primarily with impaired driving cases, I found this article to be offensive and ill-informed. I want to use this blog post to address some of the most concerning aspects of this article, and the opinions quoted in it.
What is a loophole?
A loophole is different from a defence. Wikipedia defines a loophole as "an ambiguity or inadequacy in a system, such as a law or security, which can be used to circumvent or otherwise avoid the intent, implied or explicitly stated, of the system." The point of a loophole is to contravene the intent of a law, without technically breaking the law. Think of it as following the letter of the law, but not its spirit.
Vancouver Criminal Lawyer with a focus on impaired driving, marijuana legalization and related issues, and immediate roadside prohibition defence.