) SENTENCING SUBMISSIONS )
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) SENTENCING SUBMISSIONS "Sentencing is, in respect of most offenders, the only significant decision the criminal justice system is called upon to make" R. v. Gardiner (1982), 30 C.R.(3d) 289 (S.C.C.). As Prosecutors or Defense lawyers, most of your practice will involve preparing for or delivering sentencing submissions. However, I suspect most of you would not describe your work that way. Lawyers are trained to conduct trials, not to prepare sentencing submissions. Far more time is spent worrying about the rules of evidence than about the availability of detox centres, spouse abusers' treatment, or drug counseling for teens. Yet, these issues may be, in the end, far more relevant to your life as a lawyer and far more important to your clients. In this paper, I want to raise a few issues that will assist you in preparing to speak to sentence, but please bear in mind that these are only my thoughts, and I do not pretend to exhaust the subject here. Sentencing submissions often appear to be an afterthought. I suspect that is because sentencing is not an issue that most lawyers think of addressing when first preparing to represent a client or a case in court. Lawyers may not feel comfortable discussing sentencing options because they may not know much about the specifics ofeach option. The obligation is clear, however. In R. v. Gladue, [1999] 1 S.c.R. 688, the Supreme Court discussed the responsibilities of counsel and the sentencing judge in the context of section 718.2(e) and Aboriginal offenders (at para. 83): How then is the consideration of s. 718.2(e) to proceed in the daily functioning of the courts? The manner in which the sentencing judge will carry out his or her statutory duty may vary from case to case. In all instances it will be necessary for the judge to take judicial notice of the systemic or background factors and the approach to sentencing which is relevant to aboriginal offenders. However, for each particularoffence and offender it may be that some evidence will be required in order to assist the sentencing judge in arriving at a fit sentence. Where a particular offender does not wish such evidence to be adduced, the right to have particular attention paid to his or her circumstances as an aboriginal offender may
2 be waived. Where there is no such waiver, it will be extremely helpful to the sentencing judge for counsel on both sides to adduce relevant evidence. Indeed, it is to be expected that counsel will fulfil their role and assist the sentencing judge in this way. Subsections 7l8.2(d) and (e), require sentencing judges to consider the appropriateness and reasonableness of "less restrictive sanctions" than imprisonment, for all offenders. Sentencing judges need information in order to make those determinations. That information should come from counsel. Sentencing has been very closely scrutinized since the codification of sentencing principles in 1996. The codification has been described as a "watershed" event. In R. v. Laliberte, (2000) 143 C.c.c. (3d) 503, Mr. Justice Vancise wrote (at p. 517): Subsections 7l8.2(d), (e) and 742.1 leave no doubt that the amendments to the Code represent a fundamental shift in sentencing - a shift away from incarceration to both a wider range of punitive responses and to a restorative model involving more community-based sentencing. Both elements - a wider range of punitive responses and a restorative model - require an understanding of what resources are available in the community. Both Crown and Defence counsel have a role to play. Apart from the issue of the availability of institutional resources, counsel for the Crown may often get valuable information from the victim of the offence if, as is often the case, the violence has occurred within the family. For instance, what is the likelihood of the offender following through with counseling or treatment? What has been tried before? What worked, what did not? Defence counsel must confront the issue of sentencing with the accused at the earliest opportunity. It is much more likely than not that counsel will be speaking to sentence for this client, given the high percentage of matters that are resolved by a guilty plea. It is likely that the client is most motivated to change her or his behavior at the beginning of the legal process. By addressing alcohol or violence issues early, you have something to talk about at sentencing. Check carefully with the client about his or her past efforts to deal with the problems. An
3 ) unsuccessful past effort is better than no effort at all. Determine if there are family or community resources available to him or her. Are there support persons available to address the court when the time comes? Have a plan for the future with the arrangements in place. The most ideal treatment may not be available until after sentencing, but there are interim measures that can be taken. If, at sentencing, all your client can offer is a promise to change, you may not be much further ahead. As an aside, it should also be noted that amendments to the Controlled Drugs and Substances Act have, since 1996, imposed new sentencing principles in drug cases. Section 10 of the Act now directs that attention be given to rehabilitation and treatment. Crown and Defence counsel need to be aware that community-based sentences are not only about rehabilitation. Rehabilitation, then, should not be the sole focus of submissions on the appropriateness of a community-based sentence. A conditional sentence, for instance, does ) address principles of denunciation and deterrence but, to do so, it must provide for punitive conditions that would not be part ofa probation order: If a conditional sentence is not distinguished from probation, then these offenders will receive what are effectively considerably less onerous probation orders instead of jail terms. Such lenient sentences would not provide sufficient denunciation and deterrence, nor would they be accepted by the public. Section 718 provides that the fundamental purpose of sentencing is 'to contribute...to respect for the law and the maintenance of a just, peaceful and safe society'. Inadequate sanctions undermine respect for the law. Accordingly, it is important to distinguish a conditional sentence from probation by way of the use of punitive conditions. CR. v. Proulx (2000), 140 C.C.C.(3d) 449 at para.30) Counsel should address, therefore, the availability of punitive sanctions in the community such as electronic monitoring and other forms of house arrest. )
4 In Proulx, supra, former Chief Justice Lamer endorsed the Alberta Court of Appeal's stronglyworded statement in R. v. Brady (1998) 121 c.c.c. (3d) 504, concerning the level of supervision available to an offender in the community: A conditional sentence drafted in the abstract without knowledge of what actual supervision and institutions and programs are available and suitable for this offender, is often worse than tokenism: it is a sham. Hence, the judge must know or be made aware of the supervlslon available in the community by the supervision officer or by counsel. (at para.73) Counsel practicing in the criminal courts should pay attention to the resources available, changes in legislation and judicial decisions which would promote consideration of a wider range of options and innovative procedures in sentencing. Drug courts and family violence courts, which are now operating in many jurisdictions in Canada, benefit offenders, victims and the community. These are examples of innovations that we are called upon to pursue. Awareness of what is available in other jurisdictions could lead to the adoption of further resources in this jurisdiction. Counsel may feel comfortable that there is a "usual range of sentences", but the usual range today is likely quite different from what it was five years ago, and ranges vary, in any event, among jurisdictions. Things unique to the offender, the offender's relationship with the victim and his or her actual role in the offence will all influence the sentence. A "standard" sentence may, often, not be a fair sentence. Professor Tim Quigley argues that, in order to do justice to Parliament's intentions, as expressed in subsections 718.2(d) and (e), the courts should consider incarceration as a last resort. Professor Quigley urges us to recognize that, to date, the justice system has considered incarceration as the norm and all other forms of sentencing as alternatives - the mirror opposite of the principles that now govern. Yet, the "jail first" attitude maintains its hold on us. Part of the problem may be our level of understanding of what each sentence means. Jail is easiest to understand; it means the offender is off the street for a certain period of time. We are less clear
5 \ about what other forms of sentencing may mean. The more information that is provided to the } sentencing judge, the better the decision, and it is always wise to bear in mind the following: Judges are individual human beings, each with her or his own predilections about what is gravely serious conduct, what should be the aims of sentencing, and what is appropriate as a sanction. (Professor Tim Quigley, "Has the Role of Judges in Sentencing Changed...or Should It?", paper delivered to C.I.A.J. Conference, September, 1999). Most cases have significant distinguishing features, which allow great scope for argument by either Crown or Defence. The most challenging circumstances for a judge may be having to decide whether an offender should remain in the community or serve a sentence of incarceration. Vancise, J.A. in R. v. McDonald (1997),113 C.C.C.(3d) 418, at 441, provided a list of factors to be considered in deciding whether to impose a community disposition: a) whether the offender's conduct caused or threatened serious harm to another person or his property; b) whether the act was planned or the resultant harm was planned; c) the conductof the offender during the commissionof the offence; d) whether the victim's conduct facilitated the commission of the offence; e) the likelihood of reoffending; f) the possibility of the offender responding positively to probationary treatment; and g) the record of the offender. In a paper prepared for the National Judicial Institute, Mr. Justice Rosenberg of the Ontario Court of Appeal suggested, "[o]ne could add to that list accepting responsibility for the offence, remorse, the conduct of the offender since the offence and the effect of the offence on the victim." In any particular case, counsel must consider the possible concerns the judge will have and present suggestions that meet those concerns. For example, the criminal record of the offender is enormously important in sentencing, but it can be misleading and it can be inaccurate. The record may not contain convictions within the last two, or more, years. Crown counsel must be diligent to ensure the record is. updated. The Crown will also often be called upon to make enquiries about the victims of previous convictions for violence. In cases of domestic violence,
6 the judge will want to know if this victim has been involved before or, if it is a different victim, were previous victims also in a relationship with the offender? If there are previous convictions for breaches of recognizance, were they breaches of a "no contact" condition, or something less relevant to this sentencing? A criminal record can look more serious than it is. A conviction for robbery, for instance, can result from an incident amounting to little more than theft, or it can represent serious violent conduct. Ifit is the former, defence counsel should speak to it. A record can show a pattern of conduct escalating in seriousness or it can show that the offender is making progress in his or her rehabilitation. If the offender has spent time on remand prior to sentencing, both counsel should address the length of time and the conditions of that remand. For example, it will be worth knowing that the offender has been on 23~ hour lockup while on remand or has received a number of institutional penalties. Remand time will likely be taken into account to reduce the sentence, even where there is a mandatory minimum penalty. (R. V. Wust, [2000] 1 S.C.R. 455.) The attention accorded to the offender's criminal record is, perhaps, indicative of the judge's larger concern that sentencing requires us to attempt to predict the offender's future behaviour in the community. Two factors from Justice Vancise's list, above - "the likelihood of reoffending" and" the possibility of the offender responding positively to probationary treatment" - are examples. It is a very difficult task. To assist, both Crown and defence are asked to address possible conditions to bind the offender in the community, but care must be taken not to over or underdo the demands orrestrictions on the offender.
7 Judges are confronted with a delicate balancing act in terms of the imposition of discretionary conditions. On the one hand, the conditions need to be sufficiently onerous to replicate the experience of incarceration and to ensure that the offender does not relapse. However, the Court must take care to ensure that the conditions are not too intrusive or severe as to provoke a breach, which may result in the eventual incarceration of the offender, thereby defeating the purpose underlying the new sanction. ("Conditional Sentences of Imprisonment: An Empirical Analysis of Optional Conditions", Roberts et ai, 30 C.R.(5th) 113) This phenomenon, known as "net- widening" is an issue in bail, as well as in sentencing, and both Crown and defence should attempt to scrutinize conditions carefully to avoid it. It is not in the interest of the Court, Crown or defence to set the offender up for failure. A classic example is the direction to alcoholics to abstain from alcohol. Another, less onerous, direction may better achieve the balance between controlling the offender's behaviour and successfully keeping the offender in the community. Finally, I would like to go back to the Gladue decision, supra. It will always have an impact on sentencing, but must be raised appropriately: [Lawyers must] take the initiative to adjust their practice to reflect the requirements of the [Gladue] decision. For example, simply citing the decision and suggesting to a court that it should take into account the Gladue factors is not a standard of practice which should be countenanced. ("Sentencing within a Restorative Justice Paradigm: Procedural Implications of R. v. Gladue", Judge M.E. Turpel-Lafond, [1999] 43 C.L.Q.34) In her article, Judge Turpel-Lafond provided a checklist for counsel to assist in preparing submissions: 1. Lawyers can request that judges take judicial notice of the systemic and background factors which have led to Aboriginal people being disproportionately represented before the criminal courts and in the prison system... 2. Lawyers will need to address the concept of restorative justice in their sentencing submissions and explain how it is relevant to the particular Aboriginal offender.....
8 3. Lawyers should know what alternatives to incarceration are available in the community (or elsewhere) and remind sentencing judges of these alternatives, especially where they are consistent with restorative justice... 4. Even if there is no alternative to incarceration, lawyers should make submissions on the length of the term of imprisonment, taking into account the background circumstances of an Aboriginal offender..., 5. Ultimately, in determining what is a fit sentence, the sentencing judge will make a holistic determination.... This includes considering the factors listed above, and also exploring the understanding of criminal sanctions held by the offender and her community... 6. Counsel will need to tailor their submission to sentencing judges so that they can discharge their duty 'to craft sentences in a manner which is meaningful to Aboriginal peoples'. Defence lawyers will need to understand what is meaningful to a client and convey this to the court... Prosecutors will need to identify how to balance public safety concerns with what the Supreme Court has termed a 'crisis in the criminal justice system' because of the over-incarceration of Aboriginal peoples. Thank you for the opportunity to put forward a few thoughts on sentencing. I saw my task as convincing you of the basic premise that properly prepared sentencing submissions are a fundamental part of good advocacy. Keep up the good work.