The most widely read magazine for Canadian lawyers
Issue link: https://digital.canadianlawyermag.com/i/50830
LEGAL REPORT/FORENSICS & CRIMINAL LAW "I'm hoping [the decision] will change sentencing across Canada," Cawkell told the Canadian Press after the decision. That remains to be seen, as the first wave of individuals who've served significant dead time under the new law are now coming before the courts for sentencing. Lafontaine says while Green's decision isn't binding, it could prove to be persua- sive in the courts. He predicts as the issue surfaces in courts of all levels, defence law- yers will rely heavily on Green's decision. But it's not a slam dunk that the jurists will follow lockstep, and in fact, some aren't. Lafontaine says reports from the courts so far show mixed reaction. "The dust will settle . . . with time," he says. "The truth in sentencing legislation is actually very dishonest and terribly unfair," says Lafontaine. "The underly- ing math is bad because effectively as Justice Green says, almost everyone will be released after two-thirds of their full sentence. This is different than parole. In the United States, the portion of the sen- tence actually served is somewhat longer, but the same practice is followed — there is statutorily contemplated early release. If credit is given on the so-called one-for- one basis, the real, honest truth is that the credit is far less than one-for-one. It's more like two-for-three credit. At the end of the day, someone receiving three years' credit for three years of pretrial custody cannot be said to have served the equiva- lent of a three-year sentence. A three-year sentence for someone who had been on bail involves almost certain release by the two-year mark. The person who served the time at the front end has spent one year more in jail than the person who was released on bail. So that's not truth, that's distortion in sentencing." Paul Burstein, president of the Ontario Criminal Lawyers' Association, says Green's decision is a "very well-reasoned and extensive review of the relevant evi- dence, the social science evidence, the modern realities of sentencing. It's very practical, it obviously reflects a great deal of thought in terms of how the new legis- lation relates to long-standing sentencing practices and it's made by a judge who has extensive experience in criminal law, so it certainly has a healthy mix of both prag- matism and jurisprudential reality." He agrees that lawyers across the coun- try can look to it for guidance. But, he notes, there are still other issues arising from the legislation to shake down, including that the new law says if someone is detained at their bail hearing because of their crimi- nal record, they are not entitled to more than one-for-one credit at sentencing. "The question is whether a [justice of the peace's] determination should be allowed to bind a sentencing judge," says Burstein. Further, judges may say lawyers can't argue before them that the JP was wrong because it's a collateral attack, and would have to be done by way of an appeal, but there's no right to review a Criminal Code s. 515(9.1) finding, he says. He adds that even if an accused con- sents to detention because they don't have DIGITAL EVIDENCE IN CRIMINAL LAW DANIEL SCANLAN YOUR GUIDE TO OBTAINING, UNDERSTANDING AND PRESENTING ELECTRONIC EVIDENCE IN THE INFORMATION AGE Dealing with electronic evidence is now a required skill in almost all litigation. How can you ensure the reliability of that evidence for your case? Digital Evidence in Criminal Law by Crown attorney and digital evidence authority Dan Scanlan covers all aspects of digital evidence at all stages of criminal proceedings. Guiding you from investigations to forensics, to disclosure, to trial issues, this book examines such topics as: Hardbound • Approx. 320 pp. Approx. $85 • April 2011 P/C 1006010000 to applicable taxes and shipping & handling. ISBN 978-0-088804-502-7 Prices subject to change without notice, • How digital evidence is obtained by police • How the Charter applies to investigations involving the search and seizure of data • Processing and disclosing digital forensic evidence • Establishing the admissibility and weight of electronic evidence • The potential effects of viruses on digital evidence issues relating to expert evidence Features include case summaries, precedents for disclosure undertakings and a discussion of legislation. Visit canadalawbook.ca or call 1.800.565.6967 for a 30-day no-risk evaluation CANADA LAW BOOK® 00177PN-A24854-68701 52 M AY 2011 www. CANADIAN Lawyermag.com Untitled-4 1 4/8/11 10:36:09 AM