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to 20 months by the Supreme Court of Newfoundland and Labrador (Court of Appeal). The reversals came with cautionary notes and expres- sions of concern. In his decision on the possession of child pornography case, Gorman determined that "such an offence should normally result in at least a period of incarceration of 12 months being imposed, regardless of the amount or nature of the child pornography possessed." He also stated that the judiciary "should not shrink" from handing down maximum sentences when the crime fit the punishment. The Court of Appeal disagreed. In his decision, Justice Malcolm Rowe found that "the sentencing judge, having noted Parliament's establishment of a 45-day minimum, then, in effect, seeks to establish a 12-month minimum. This is a clear error. "While it is true that sentencing ranges are established and evolve through decisions in individual cases, this does not mean that judges are free to 'make it up' as they see fit," added Rowe. "This is what the sentencing judge did here." The appeal court also took issue with Gorman's sen- tencing of a man to two years in prison for unlawful con- finement. That sentence was subsequently reduced to 10 months, which had been the original joint recommendation of the Crown and defence lawyers. In its reversal, the appeal court noted that Gorman seems to have "considerable skepticism about the appropriateness of plea bargaining." Such skepticism, the justices stated, cannot take pre- cedence over actual sentences. "Whatever one's personal views may be as to the appropriateness or utility of plea bargaining in our criminal justice system, the fact remains that, for at least the past 20 years, it has been judicially sanctioned at the appellate court level." — DM CENTRAL MentAl-heAlth coUrt's Q uebec is attempting to keep offenders with mental-health issues out of jail through an experimental three-year pro- gram at Montreal's municipal court. Inspired by mental-health courts in Toronto, Saint John, N.B., and Ottawa, the pilot project offers mentally disor- dered accused a chance to receive treat- ment and possibly avoid jail time if their participation is deemed successful. "The goal is not that the law does not apply to them, but the way of applying the law is more flexible and takes into account their particular needs," says Julie Provost, a prosecutor for the Montreal municipal court who co-ordinates the pilot project's operation and oversaw its implementation. The program began in May 2008 as an effort to stem the tide of an estimated 1,200 people with mental-health issues appearing before the court each year. "The justice system, the way it functions, was not equipped to respond to the needs of those people and so they often ended up in prison because of a lack of services that could support them during the judi- sided over by one of nine municipal court judges regularly assigned to work on the cases. Program participants meet with a multidisciplinary team that includes a doctor, a legal aid defence lawyer, a crimi- nologist from Montreal Institut Philippe- Pinel specializing in legal psychiatry, a social worker, a probation officer, and one of the court's prosecutors. Along with consultation with the cial process," says Provost. "We came to the conclusion that [jail time] fed into the revolving door syndrome. This clientele is above all ill, so for them the dissuasive impact of jail time is relative. The infrac- tions are relatively minor so we are not talking about very serious crimes." Referrals come from the police, legal aid defence lawyers, prosecutors who see red flags in police reports for the court, or the court itself. Nine out of 10 peo- ple referred participate in the program, according to Provost, who estimates that it services an average of seven people a day, including repeat appearances, if sta- tistics are looked at over one year. The special court operates five days a week for two hours a day in sessions pre- assigned judge, the team works with the accused, acts as a referral service, and works out a followup protocol that may involve having the offender come back before the court as part of the conse- quence for having committed an infrac- tion. "We follow their progress and if it goes well and there is a general improve- ment in the person's condition, we can, in certain cases, have the criminal charges withdrawn or more lenient sentencing imposed," says Provost. The Quebec departments of justice, public security, and health are involved in funding the program and are evaluating whether or not to continue it. — KATHRYN LEGER kathryn.leger@videotron.ca www.CANADIAN Lawyermag.com M A RCH 2011 7 Photos.coM f U t U re U n c le A r