Thursday, May 29, 2014

Justice "No Gem" makes his debut!

Cubic zirconia gems are not diamonds!

Good Day Readers:

Vic Toews has been dubbed Justice "No Gem" because of a recent comment by former Supreme Court of Canada Justice John Major who offered Mr. Toews was "no gem" when he served as federal Justice Minister. Indeed, after his appointment to Manitoba Court of Queen's Bench was announced in early March of this year it caused a firestorm of reaction on the comment boards of the nation's major newspapers the overwhelming majority of which was highly critical in no uncertain terms.

Compare this with the legal establishment's reaction which was by and large tight lipped with raised eyebrows. One can only speculate some might harbour future aspirations of a judgeship and/or were apprehensive being publicly critical could translate down the road into clients not getting any of those close 50-50 calls.

Then came the much ballyhooed show and tell/pony and donkey show (May 2, 2014) that was Vic Toews' public swearing in ceremony followed by nothing so naturally CyberSmokeBlog wondered what "No Gem" was doing to earn his $288,000 taxpayer salary plus benefits package you'll never see in two life times of trying and commented as such.

When will he make his debut? Yesterday, an eagle-eyed reader sent the following article for which we thank them.
Toews focuses on custody credit in 1st sentencing as judge

By Dean Prichard
Friday, April 25, 2014
Canadian Public Safety Minister Vic Toews (QMI Agency file photo)

As Public Safety Minister, Vic Toews was front and centre five years ago introducing the federal government's Truth in Sentencing Act.

Now a newly appointed Manitoba Court of Queen's Bench Justice, Toews is addressing it again.

The Truth in Sentencing Act, among other things, banned granting offenders two-for-one credit for pre-sentence custody, while approving a maximum 1.5-to-1 credit when "circumstances justify it."

The Supreme Court of Canada pulled some teeth out of the act earlier this month, ruling the act does not preclude granting offenders 1.5-to-1 credit for pre-sentence custody.

On Friday, Toews — specifically alluding to the Supreme Court decision — adjourned sentencing on his first case to hear further submissions on what credit Ajhaji Conteh should receive for pre-sentence custody.

Earlier in the day, Toews found Conteh guilty of one count of possession of cocaine for the purpose of trafficking.

Conteh was arrested November 25, 2012 after police responded to a report of a domestic dispute at his Bannatyne Avenue home.

A police officer testified he saw Conteh "fidgeting" and pacing before kicking a number of items under a futon. Conteh struggled with several officers before he was restrained and taken to a police cruiser. Under the futon police found a baggie containing 99 grams of cocaine, a weigh scale and a wallet stuffed with money.

Conteh denied any knowledge of the drugs and claimed somebody stashed the items under the futon while he was outside with police.

"There is no evidence I can rely on to find there was somebody else in the home who could have tampered with the items," Toews said.

Crown attorney Rob Gosman recommended Conteh be sentenced to four years in prison, noting he was serving a conditional sentence for the same crime at the time of his arrest.

"He got re-involved within weeks," Gosman said. "The conditional sentence order had no impact whatsoever."

dean.pritchard@sunmedia.ca
Twitter: @deanatwpgsun

A little advice for the Manitoba Law Courts Administration. When a Judge or Justice has been privately sworn in and can begin hearing cases, a press release should be issued shortly thereafter. At the Toews' public swearing in Chief Justice Joyal prior to administering such noted it had been done earlier, however, that's of no assistance to the media.

It will be interesting to read the Toews' sentencing report. As a former Harper government Mr. Tough Guy on its law and order agenda will he be one of those activist judges the Conservatives loath and cut the guilty party some slack or throw the book at him. If past behaviour is any indication of future behaviour combined with a leopard's inability to change it's spots, the guilty person better be prepared to duck.

Below is an interesting article documenting the Harper government's ongoing pitched battle with the judiciary that has reached a crescendo as evidenced by the ill-advised, ill-conceived public debate between the Prime Minister and Chief Justice of the Supreme Court of Canada - that's going to cost him votes majorly!

Bottom Line: The Harper government through imposition of mandatory sentences (victim surcharge, gun possession, marijuana possession, etc., etc., etc.) and other legislation is removing discretion from Judges and they don't like it.

Sincerely,
Clare L. Pieuk
Supreme Court of Canada defends judicial discretion in sentencing

Written by David Dias
Friday, April 11, 2014

The Supreme Court blocked the Conservative's tough sentencing rules. (Photo: Reuters)

In a damaging blow to the Conservative government’s tough-on-crime agenda, the Supreme Court of Canada today dismissed two federal appeals, upholding rulings that essentially reverse the intent of the Truth in Sentencing Act  — turning the law’s standard credit for time served into the exception, and the exception into the standard.

Indeed, the Bill C-35, Truth in Sentencing Act — whose very name implies criminal sentences are not what they appear — sought to reduce the amount of credit convicts were granted for time served in pre-trial custody.

Prior to the act, which came into effect in 2010, judges were given discretion in the matter and routinely provided two days credit for every one spent in custody prior to trial. Ottawa viewed this as over-generous and sought to limit judicial discretion. The new law set the standard for credit at 1:1, but offered a vaguely worded exception of 1.5:1 in “justified circumstances.”

Judges in several provinces — annoyed at the attempt to limit their discretion — have defied the new law by exploiting the loophole, suggesting nearly all circumstances justify the enhanced credit.

Ontario Court Justice Colin Westman, for example, has spoken out publicly against the new law, and Ontario Justice Melvyn Green has written that new tough-on-crime laws have cast “a dark shadow on the sentencing principles of proportionality and restraint.”

In R. v. Summers (and a companion case, R. v. Carvery), the SCC sides with the Ontario Court of Appeal’s defiant stance, agreeing that entrenched principles of justice warrant enhanced credit not only in exceptional cases — but in virtually all circumstances.

These principles take into account the math around parole eligibility, which is typically granted after two-thirds of a sentence. Under a 1:1 regime, a convict with a sentence of one year and no pre-trial custody would be out after eight months. But a convict who spends six months in pre-trial custody would be out after four months served in prison — for a total of 10 months.

This calculus means convicts who spend more time in pre-trial custody — often because they can’t afford bail or have no connections in the community — would have suffered a longer sentence under the new law.

The decision written by Justice Andromache Karakatsanis for a unanimous bench says: “A rule that results in longer sentences for offenders who do not obtain bail, compared to otherwise identical offenders is incompatible with the sentencing principles of parity and proportionality. This is particularly so, given that vulnerable and impoverished offenders are less able to access bail.”

The court defends judicial discretion while seemingly taking Ottawa to task for vague wording in that apparently uses inference rather than explicit language to institute policies that may be discriminatory (and thus subject to Charter challenge):

“It is inconceivable that Parliament intended to overturn a principled and long-standing sentencing practice, without using explicit language, by instead relying on inferences that could possibly be drawn from the order of certain provisions in the Criminal Code. . . . Neither the language of the provision nor the external evidence demonstrates a clear intention to abolish one of the principled rationales for enhanced credit.”

Josh Koziebrocki, a partner at Lerners LLP who represented the Canadian Civil Liberties Association before the court, stresses there was no Charter challenge here, but that his clients argued “the legislation should be interpreted in a manner that is in line with the principles set out in the Charter.”

“Individuals that have less financial means or fewer connections in the community are more likely not to be granted bail, more likely to remain in custody during a pre-sentence period,” says Koziebrocki. “I think that the court has recognized that, without explicit language from Parliament, offenders should not be punished more severely simply because they were not released on bail.”

While the court’s decision acknowledges that Ottawa’s amendments attempt to set an “exception” of 1.5:1, the ruling — in an amazing semantic leap — suggests exceptions need not be exceptional, particularly when more important principles are at stake:

“While s. 719(3.1) is structured as an exception to s. 719(3), there is no general rule of statutory interpretation that the circumstances falling under an exception must be numerically fewer than those falling under the general rule. Therefore, it is not a concern that most remand offenders will qualify for enhanced credit on the basis of lost eligibility for early release or parole.”

In a blog post about the decision, Ottawa criminal lawyer Michael Spratt notes: “The truth is that there is little empirical support for the government's justifications on limiting judicial discretion when it comes to to the consideration of an offenders time spent in pre-sentence custody - C-25 is yet another example [of] blind ideological legislation.”

Toronto criminal lawyer Frank Addario says the underlying issue here — aside from what constitutes reasonable credit for time served — is judicial discretion: “Judges are trained that the common law is about discretion. They are not going to give it up unless the statute is abundantly clear.”

Koziebrocki agrees, but says the new law continues to limit judicial discretion to a maximum of 1.5 days for each day in pre-trial custody. And while the 1.5:1 ratio may address the quantitative issue (that convicts not granted bail should be given the same sentence as those granted bail), it does not address the qualitative issue cited in the SCC decision —that detention facilities are typically harsher than prisons.

“The court is very clear in suggesting that 1.5:1 is not necessarily sufficient to address all of the circumstances for every offender,” he says. “There may be an offender who has a harsher pre-sentence custody, but that isn’t in the legislative framework they’re working with.”

Spratt also wrote the act is “the work of a government pursuing a reckless approach to criminal justice. Worse, the government seems to be quite aware of this.

“C-25 is yet another example of costly and necessary litigation born from ideology and ignorance."

He concludes: “Fortunately courts are a crucible designed to reveal truth — perhaps this is why Conservative criminal justice policy has repeatedly failed to passed the test.” 

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