Toronto Criminal Lawyers Blog

If a guilty plea is entered or if a person is convicted after trial, the focus of the Court shifts to sentencing. If you are entering a guilty plea it is vital that you contact counsel so that all the factors which affect the nature of the sentence may be canvassed.  Unique background factors can influence the type and/or length of sentence a conviction attracts. In R v Gladue (1999) the Supreme Court of Canada dramatically changed the way aboriginals are sentenced and detained. In that case the Court interpreted section 781.2(e) of the Canadian Criminal Code which provides,
All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
The interpretation was an attempt to remedy the courts’ over-reliance on incarceration as a response to criminal activity by First Nations individuals. After canvassing numerous studies, commissions and reports on Aboriginal people and the criminal justice system, the Court concluded:  
These findings cry out for recognition of the magnitude and gravity of the problem, and for responses to alleviate it.  The figures are stark and reflect what may fairly be termed a crisis in the Canadian criminal justice system.  The drastic overrepresentation of aboriginal peoples within both the Canadian prison population and the criminal justice system reveals a sad and pressing social problem.  It is reasonable to assume that Parliament, in singling out aboriginal offenders for distinct sentencing treatment in s. 718.2(e), intended to attempt to redress this social problem to some degree.  The provision may properly be seen as Parliament’s direction to members of the judiciary to inquire into the causes of the problem and to endeavour to remedy it, to the extent that a remedy is possible through the sentencing process. (para 64) 
When a defendant has aboriginal lineage the court is required to conduct a background assessment and consider alternative sanctions- This is known as the Gladue approach to sentencing, and occur in special Gladue courts. In fact, all judges in all courts are duty bound to consider the implications of the Gladue decision prior to sentencing an aboriginal defendant: The court must consider the following;  
1. The unique systemic and background factors which played a part in bringing that particular aboriginal before the courts; and,
 
2. The types of sentencing procedures and sanctions which may be appropriate in the circumstances because of the defendant’s Aboriginal heritage or connection.
The Gladue approach does not apply to the whole trial process.  It applies at bail hearings before the trial, and again at sentencing after conviction. The trial process of an aboriginal offender does not differ in any respect from the trial process of a non-aboriginal offender- The same rules of evidence apply. The degree of aboriginal influence necessary to warrant the Gladue approach will vary from person to person. Residence or connection to a reserve is not a requirement.  In some circumstances the Galdue approach will be used when a defendant was not aware of his aboriginal heritage. This is because “aboriginal community” must be defined broadly to include any network of support and interaction that may be available, including in an urban centre. Residence in an urban centre lacking support does not remove the court’s obligation to consider alternative punishment other than incarceration.  
The first step in the Gladue approach is an assessment of the defendant’s background and community experiences, known as a Gladue report. Statistically, the aboriginal community has a greater incidence of poverty, discrimination, family dislocation, sexual abuse, domestic abuse and addiction.  These experiences play a major role in the disproportionate representation of aboriginals in prison. At this stage the court is interested in determining whether the accused has suffered as a result of systemic or direct discrimination. It is not necessary that the accused themselves suffer discrimination provided they have suffered its effects.  For example, aboriginal children may live in poverty as a result of discrimination or addiction suffered by their parent(s). In order to aid the court in their assessment the accused will be required to supply information relating to 
• Personal history (address, employment, education)
• Circumstances leading up to the offence
• Their family home experience
• Their parents history
• How they are supported financially
This is not an exhaustive list. The accused may be asked very personal questions relating to the types of schools he/she attended, his/her experience with adoption and child welfare as well as his/her experience with abuse, addiction and mental illness. 
After the court has identified the particular background factors affecting the defendant, they will then consider alternatives to incarceration. For example, substance abuse programs and/or counseling programs can be used to replace of a custodial sentence. The Gladue sentencing approach may be used to lessen a sentence in circumstances where the nature of the offence requires that a custodial sentence is served.  It is important to tell counsel about all possible programs as well as their dates, locations and entry requirements. The court will consider all possible programs both inside and outside the aboriginal community. Aboriginal descent does not create an automatic sentence reduction. The courts goal is to expand the use of restorative justice measures and to reduce the overrepresentation of aboriginals in prisons. This different approach to sentencing does not always mean that the ultimate result is different result.  
The more serious the crime, the more likely the sentences of aboriginal and non-aboriginal offenders will coincide.

Bill C-55, which came into force on August 1^st, 1997, made significant changes to Canada’s Dangerous Offender legislation. This legislation allows the government of Canada to detain indefinitely those offenders found by the court to qualify as “dangerous”. The 1997 reforms made it much easier for the Crown Attorney’s Office to secure a dangerous offender designation. At the same time, Bill C-55 introduced a new legislative designation known as the Long Term Offender Designation.  This designation gave Crown Attorneys a more moderate option for dealing with the special concerns raised by long term offenders without resorting to the serious measures imposed by a dangerous offender designation. This also gave criminal defence lawyers an alternative option to suggest to the court as a compromise to avoid dangerous offender designations in the most serious of cases. In the majority of cases, however, criminal defence lawyers will do their upmost to avoid both dangerous offender and long term offender designations for their clients.

The long-term offender designation may only be made following the individual’s conviction for a serious personal injury offence. The term “serious personal injury offence” is defined in s. 752 of the Code as an offence that endangers, or could potentially endanger, another person’s life, safety, or psychological well-being. This category would include aggravated assault, sexual assault, aggravated sexual assault, sexual assault with a weapon, or sexual assault of a minor. The Crown may apply for a long-term offender designation after an individual is found guilty of a personal injury offence but before he or she is sentenced. In addition, according to s. 753(5) of the Criminal Code of Canada, if an application for dangerous offender designation is denied, the court may consider imposing a long term offender designation at that time (in the alternative, they may choose to impose a traditional determinate sentence). A dangerous offender application made be made up to six months following the sentencing of an individual for a serious personal injury crime.

Though long term offenders cannot be given indeterminate sentences as dangerous offenders are, the designation requires that the individual be under long-term supervision and allows the court to return the individual to prison following their release if certain conditions are not met. Section 753.1(3) creates a sentencing regime for long-term offender. Upon designating an individual a long-term offender, the court must impose a sentence for the offence for which the offender has been convicted of a minimum of two years duration and order that the offender be subject to long-term community supervision for up to ten years after his or her release. If the long-term offender breaks his or her order of supervision, he or she will be liable to a term of imprisonment not exceeding ten years.

Section 753.1(1) lists the requirements for a long-term offender designation. The Crown must prove all of the following requirements before the court will designate the individual a long-term offender:

• A sentence of two years or more would be appropriate for the crime committed,
• The offender is likely to reoffend, and
• There is a “reasonable possibility of eventual control of the risk to the community”.

Likelihood to reoffend is assumed pursuant to s. 753.1(2) for all those offenders who are convicted of an offence of a sexual nature or offenders whose records disclose a pattern of violent behaviour.

An application for long-term offender designation must be approved by the Attorney General of the province. The offender is given seven days notice of the application during which the offender and his or her criminal defence lawyer must prepare a defence to the allegation that the individual is a long-term offender. The application will be determined in a special proceeding heard by judge alone without a jury. Character evidence, usually excluded at trial because of its inherent unreliability, is allowed if the court deems it relevant to establishing whether or not the individual qualifies as a long-term offender. Under section 758, the accused must be present at the hearing unless exceptional circumstances make his or her attendance impossible (for example, the accused may be expelled from the courtroom because of violent or uncontrollable behaviour). The accused individual and his or her criminal defence lawyer will have the opportunity to defend against the charge that the accused should be labeled a long-term offender. If found to be a long-term offender, the accused may appeal his designation pursuant to s. 759 of the Code.

By-line:

This guest post is contributed by Stephanie DiGiuseppe. She can be reached at stephaniedigiuseppe@gmail.com.

One of the first questions a client asks whcn charged with Domestic Assault is if there is any way that they could “get” a Peace Bond. Of course, in most  cases of domestic assault the Peace Bond is a happy ending. The charge is withdrawn. The accused avoids a criminal record. Life returns to normal. In some cases the parties have reconciled. Often, the relationships that gave rise to the allegations, cannot survive the test of bail orders restricting contact and the fact that the complainant made the accusation to the police.

The reality in the present criminal justice system is that Peace Bonds are very hard to obtain in the context of a domestic assault allegation. In some jurisdictions, it is almost impossible to obtain a Peace Bond prior to a trial date. On the trial date, where the prosecutor is of the view that the evidence in support of the allegation is not strong enough for a Court to convict, the client may be offered a Peace Bond. The nastier the allegation, the more likely that the prosecutor is going to let the Court make the call rather that be critized later if the Peace Bond creates a controversy.

Generally speaking, given the current political landscape of the offence of Domestic Assault, a Peace Bond is only available in the most minor cases. Threats of violence without any violence, or history of violence, may qualify,. This is  especially true if the allegation is of a he said she said nature, and unsupported by corroborative evidence. In these cases, the prosecution is aware of the fact that a conviction is unlikely.

A Peace Bond may also be available if the nonconsensual touching is viewed as very minor, and there is no history of violence between the parties. A push. Sometimes a slap. The fact that the accused has some indication of bruising can also be a factor which may influence a prosecutor to exercise their discretion to agree to a Peace Bond. The accused’s bruises would advance his defence that the complainant was the aggressor and he was acting in self-defence.

Most courthouses in the Greater Toronto area have one or two domestic assault court days wherein those individuals charged with domestic assault related offences, appear. In the current prevailing politic individuals charged with domestic assaul are generally offered a quick exit from the justice system. Where there is no history of domestic violence,and so long as there is no significant injury to the complainant, the average accused person is offered a conditional discharge (a guilty plea which is not technically a criminal record). The bail is varied to allow the parties to reconcile (with the complainant’s written consent). After the person completes the four month one night per week Partner Assault Response Spousal programme (anger management in a spousal context), they are placed on Probation.

At Kostman and Pyzer, Barristers, we are well informed, experienced, and familiar with the politic underlying Domestic Assault prosecution policies.  We can’t promise you a Peace Bond, but we can advance a strong argument that one should be available in the particular circumstances of your case.

Kostman & Pyzer, Barristers, Toronto lawyer Jonathan Pyzer made news recently at the sentencing hearing of a young Toronto man convicted of violently sexually assaulting a woman he met in a Toronto night club. Mr. Pyzer, who represented the accused at the sentencing hearing, impressed Justice Hamilton of the Superior Court of Justice with his thoughtful approach to his sentencing submissions.

Mr. Pyzer suggested to Justice Hamilton that a sentence at the lower range of the sentencing spectrum would be appropriate given the nature of the offence and his client’s strong prospects for rehabilitation. Justice Hamilton was impressed by Mr. Pyzer’s astute ability to reconcile the disparate aspects of the case.

The Toronto Sun included an article on the case which commented on Mr. Pyzer’s role in achieving a fair sentence for the accused. The portion of Justice Hamilton’s decision where he refers to Mr. Pyzer is quoted in the Sun. “I don’t relish sending anyone to jail,” Justice Hamilton remarked, “I found Jonathan Pyzer to be refreshing…and I agree with his submission”. Justice Hamilton followed Mr. Pyzer’s recommendation, securing the accused the lowest possible sentence in the circumstances.