Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m M A R C H 2 0 1 8 33 by the policies of the former Conservative government, says Rudin, was through its increase in the number of offences with mandatory minimum sentences. If an offence includes a mandatory minimum, then a court has no right to impose a conditional sentence. The Supreme Court of Canada has struck down some of these provisions as uncon- stitutional, but the federal prosecution service continues to argue to maintain the ones that remain. Aboriginal Legal Services is an inter- vener in an ongoing challenge to manda- tory minimums for importing drugs. The Ontario Superior Court case involves a 21-year-old indigenous woman and single mother, caught as a "drug mule" with cocaine in a checked bag on a flight from Trinidad. The young woman had a troubled upbringing including being sexually assaulted by two men when she was 13. Federal prosecutors in their written submissions agreed the woman had a difficult life with a serious history of vio- lence in her family and financial prob- lems. But if the mandatory minimum were struck down because of the cir- cumstances of an offender, it could lead to more drug importing. "Imposing very lenient sentences on vulnerable female Aboriginal drug couriers may counter- productively serve to increase their util- ity to drug importers," they wrote. Striking down mandatory minimums only means that trial judges have more discretion so that, in rare instances, there may be a more lenient sentence if circum- stances warrant, notes Rudin, in response to the position taken by the federal Crown in this case. "This is not the previous government. We know this government understands the issues and is sympathetic. That makes it doubly frustrating," he says. While declining to comment on any specific case, a spokesperson for the Department of Justice stressed that the Public Prosecution Service of Canada is an independent organization. "The rela- tionship between the attorney general and the director is premised on principles of respect for the independence of the pros- ecution function and the need to consult on important matters of general interest," the spokesperson wrote in an email. MANDATORY VICTIM FINE SURCHARGE Justice Minister Jody Wilson-Raybould introduced legislation in October 2016 to restore discretion to judges to waive the mandatory victim fine surcharge of $100 per summary conviction offence and $200 per indict- able conviction. It has not progressed past first reading. The Supreme Court of Canada will hear a joint appeal from Ontario and Quebec decisions on whether the mandatory fines breach the Charter when imposed on individuals with- out the financial means to pay. CANNABIS The Liberal government passed legislation to follow through on a cam- paign promise to legalize the possession of small amounts of cannabis for recreational use. It is still not clear if this will take place by the target date of July of this year. SOLITARY CONFINEMENT Public Safety Minister Ralph Goodale tabled Bill C-56 in June 2017 to amend the Corrections and Conditional Release Act with the aim of reducing how often inmates in federal correctional facilities are held in solitary confinement. The bill has not moved forward. Judges in Ontario and British Columbia have since found aspects of the existing legislation to breach the Charter. PARDONS A review of higher fees and other measures that made it harder for individuals to be granted record suspensions of prior criminal offences was undertaken. In Ontario and Quebec, courts struck down Conservative amendments that retro- actively increased the time period before an individual could apply for a record suspension. To date, no legislation has been introduced to amend the existing provisions. COURT CHALLENGES PROGRAM The November 2015 mandate letter to the Justice minister called for the resumption of the Court Challenges Program, which would provide funding for disadvantaged groups to bring forward equality and other constitutional challenges. The Department of Canadian Heritage is responsible for the pro- gram. It has not committed to a date as to when it will be up and running. JUDICIAL VACANCIES The federal government revamped the appointment process for federally appointed judges, as well as the advisory committees to assist in this task. According to the Office of the Commissioner of Federal Judicial Affairs, as of Jan. 1, there are still 57 unfulfilled vacancies for Superior Court or provincial Court of Appeal level positions across Canada. JUDICIAL DIVERSITY The Trudeau government promised more diversity in the judiciary. Since it took office, 53 per cent of new federal judicial appointments have been women. The percentage is much higher than the previous government. There is also an increase in diversity of background of those appointed to the bench. ACCESS TO INFORMATION Bill C-58 was passed last fall in the House of Commons after a lengthy review process. Access to information advocates have said there is little in the way of substantive changes to make federal government departments and agencies more transparent. LIBERAL PROMISES

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