Wednesday, 18 January 2017

Sentencing Procedures in Canada                                                   

Judges have three choices in which they can pass a sentence on a convicted criminal. The first choice is when the judge after listening to the convicted criminal making a pre-sentence plea. This also includes listening to statements presented by family members of the victim. The second choice is after the judge has heard the arguments of the defence lawyer and the Crown (prosecutor). The third choice is when the defence lawyer and the prosecutor make a joint submission to the judge. This article is about the third choice.  

The convicted man who was to be sentenced is Anthony Cook, (hereafter referred to as A-C) This all took place in British Columbia, Canada.

AC attended a dropin centre which provided assistance to people suffering from mental health and addiction problems. He had a longstanding mental health disorder and substance abuse issues.

On the morning of February 9, 2013, Mr. Gregory) a volunteer with the Centre) attended the centre but left at around 10:30 a.m. because he was feeling ill.  At about the same time, A-C was in the centre’s computer room.  One of the other attendees complained about him causing a disturbance.  The staff found him swearing and punching at a board near a computer.  They told him to leave, which he did.  On his way out, he shouted at the staff and appeared angry and upset.

As A-C walked away from the drop-in centre, he saw Mr. Gregory crossing the street, heading away from him.  A-C called out to Mr. Gregory, shouting words to him to the effect that he would “kick his head in”   Mr. Gregory shouted back, telling A-C to “smarten up” or “dummy up”.  He then changed direction and after catching up with A-C, he grabbed him by the shoulder and began pushing him. The two men pushed each other.  Mr. Gregory continued yelling, and A-C threw three or four punches, none of which connected.

Mr. Gregory started the physical fracas. He should have continued to walk away from A-C. after A-C threatened him from a distance.

Mr. Gregory realizing this, (after the original fight) he then backed away from A-C with his hands raised.  A-C moved forward and threw two more punches, striking Mr. Gregory in and around the head and neck.  The first blow stunned Mr. Gregory, and the second knocked him unconscious.  All of the punches occurred within a matter of 10 to 20 seconds. Mr. Gregory fell backwards.  His skull fractured when it hit the pavement.  He never regained consciousness and was subsequently pronounced dead at the hospital. .

A-C was charged with manslaughter. This kind of charge is a legal term  for homicide considered by law as less culpable than murder. Involuntary manslaughter is the unlawful killing of a human being without malice aforethought, either expressed or implied. It occurs when someone kills without intent while in the course of committing an unlawful act.

When Mr. Gregory backed away from A-C with his hands raised, he was implying that he didn’t wish to fight with A-C any more. When A-C chose to continue fighting with Mr. Gregory, he had the deliberate intention to cause physical harm to Mr. Gregory even though he didn’t have the intention to kill him. Notwithstanding that he didn’t intend to cause Mr. Gregory’s death, A-C  was committing a criminal act since he wasn’t defending himself when he struck the victim two more times which caused the victim to fall and strike his head on the pavement thusly killing him. 

AC was 28 years old at the time of the fatal assault of Mr. Gregory and had a prior criminal record. After his arrest for killing Mr. Gregory, he was taken to a mental health facility. Following his discharge from the facility, he was placed on bail. AC breached his bail conditions and was held in custody while waiting for his trial. His trial was heard approximately 11 months later. After several days of his trial, AC pleaded guilty to manslaughter for the death of Mr. Gregory. It was the right decision.

The maximum punishment for manslaughter is life in prison however, that is rarely if ever given in Canada.

Joint submissions on sentence is the procedure when the Crown (prosecutor) and defence counsel agree to recommend a particular sentence to the trial judge, in exchange for the accused entering a plea of guilty. This procedure is vitally important to the wellbeing of the criminal justice system, as well as the justice system at large. Generally, such agreements are unexceptional and they are readily approved by trial judges without any difficulty.

Occasionally, however, a joint submission may appear to be unduly lenient  or alternately unduly harsh so trial judges are not obliged to go along with the proposal put to them. Of course, there are certain crimes such as first degree murder, in which these options are not available.

 If there appears to be a lack of consensus regarding the legal test, trial judges should consider in deciding whether it is appropriate in a particular case to depart from a joint submission.

There are four possible approaches: the fitness test; (accused mentally able to counsel his lawyer) the demonstrably unfit test; (accused unable to counsel his lawyer) the public interest test; (sentence is justified by the public) and, the approach that treats the fitness and public interest tests as being essentially the same.

The public interest test is the proper legal test that trial judges should apply. Under the public interest test, a trial judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or would otherwise be contrary to the public interest.

For joint submissions to be possible, the parties must have a high degree of confidence that they will be accepted. The public interest test, by being more stringent than the other tests proposed, best reflects the many benefits that joint submissions bring to the criminal justice system and the corresponding need for a high degree of certainty in them.    

Crown and defence counsel must be well informed of the facts of the case to arrive at a joint submission that addresses the interests of both the public and the accused.

Trial judges should not reject a joint submission lightly. They should only do so where the proposed sentence would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system. A lower threshold than this would cast the efficacy of resolution agreements into too great a degree of uncertainty about the system of justice in Canada.

The Crown and the defence made a joint submission on sentence by proposing a further 18 months’ in custody with no period of probation to follow. The trial judge applied a “fitness test” to the joint submission and rejected the proposal of the Crown and defence lawyer. He concluded that an appropriate sentence was two years less a day, factoring in deductions for presentence custody, and added a three year probation order.

The decision of the Court of Appeal was that A-C’s appeal should be allowed and the sentence varied to bring it into conformity with the joint submission put to him by the Crown and defence lawyer.

As per the Criminal Code in Canada, persons who are incarcerated are automatically eligible to be released after serving two-thirds of their sentence except those who are considered to be dangerous.  This is so that they can be placed on probation for the remaining one third of their sentences. However in this case, being place on probation is academic since part of the proposal that was granted by the Court of Appeal includes three years of probation. 

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