Derstine Penman Criminal Law Blog

Dirk Derstine’s recent win in the Ontario Superior Court of Justice, R. v. Shmickle, could have an significant effect on Canadian criminal law as mandatory minimums become an increasingly prevalent, but controversial, phenomenon under Stephen Harper’s omnibus crime bill.

Read this article in Lawyer’s Weekly to learn more about the effect R. v. Shmickle could have on combatting the legality of mandatory minimums and putting discretion in sentencing back in the hands of trial judges: http://www.lawyersweekly.ca/index.php?section=article&volume=31&number=39&article=2

http://www.cbc.ca/news/canada/toronto/story/2012/02/13/ontario-judge-mandatory-minimum-firearm.html

Here is another article on Dirk Derstine’s victory today in striking down the three-year mandatory minimum for firearm offences in the Ontario Superior Court of Justice.

As of today’s ruling, individuals convicted of possession of a firearm will not be subjected to a mandatory three year minimum sentence.

Mr. Smickle, the young man Mr. Derstine was appearing on behalf of, was in possession of a firearm for a matter of minutes when he picked it up and took pictures of himself which he posted on the social networking site Facebook. Even though he had no criminal record, as a result of the mandatory minimum, he was facing a minimum sentence of three years in a federal penitentiary. Thanks to today’s decision, he will serve and much more fair and appropriate sentence.

Mandatory minimums are becoming more and more abundant in Canadian law under the Harper government. Today Justice Molloy of the Superior Court of Justice agreed with Mr. Derstine that these mandatory minimums can lead to cruel and unusual punishment and, where they do, should be struck down under the Canadian Charter of Rights and Freedoms.

Read more about this decision here:

http://www.theglobeandmail.com/news/politics/ontario-court-rules-mandatory-minimum-sentence-unconstitutional/article2336816/

Justice Molloy of the Ontario Superior Court of Justice ruled today that the three-year mandatory minimum sentence for possession of a restricted firearm is unconstitutional because it denies Judges the freedom to craft sentences appropriate to the particular offender in question and the circumstances of his or her case.

Dirk Derstine argued the motion in conjunction with co-counsel Jeff Hershberg and won. This will be an interesting ruling going forward in the face of the Conservative government’s “Omnibus Crime Bill” which proposes to enact mandatory minimum sentences for a plethora of offences, including relatively minor drug offences.

For more information check out this article in the Toronto Sun: http://www.torontosun.com/2012/02/13/minimum-gun-sentence-cruel-and-unusual-punishment-judge

Lots of people get accused of shoplifting sometimes the person gets charged, sometimes the person gets told never to come back to the store again and sometimes the person just gets let go. For the people that get charged, like with all other criminal charges, a number of outcomes are possible. However, regardless of the outcome of your experience being accused of shoplifting the store will often try and recover their cost for enforcement and loss. Many of us feel that these demands are extortionist, and do not represent a valid claim. Few proceed beyond the annoying letter, despite many of these letters getting summarily filed under “G”. Clearly though, these letters are responsible for anxiety among their recipients and the apparent frequency with which they are sent off would seem to indicate that some people make attempts to pay these demands.

A recent article in the Law Times has reported on a B.C. Lawyer speaking up against such letters. Unfortunately this resulted in a fine being imposed upon him by the Law Society. While many of us share his sentiments about these letters, his tale is a cautionary one which we would all be wise to heed. It behooves us all as lawyers to keep our language civil while we advocate strongly on behalf of our clients.

The message from the BC law society seems clear, it does not matter that these letters may be an attempt to extort money from the unfortunate person who has been accused of shoplifting, it does not matter that the amount that these letters often claim, is in excess of any amount that the individual store might be out of pocket, nor does it matter that the letters themselves may seem mean-spirited and designed to create anxiety in their recipients. What does matter is how you respond and that you do so in a way that does not attack the personal integrity of the other party, even if you truly feel that the other party could have crawled out of the slime and muck in which s/he usually resides, to write that damn demand letter. Care in all things especially in writing creative insults to vermin. See the Law Times blog article, at:

http://www.canadianlawyermag.com/legalfeeds/658/B.C.-lawyer-fined-$1500-for-outburst-at-Ontario-colleague.html

Click the link below to check out a recent case about a Scottish woman who was falsely convicted due to fingerprint evidence. This case highlights to the public what defence lawyers have been saying for decades about the unreliability of fingerprint evidence; notwithstanding the way this evidence is depicted by show like “CSI”, fingerprint analysis is more of an art than a science and it leaves a wide margin for potential human error. http://www.guardian.co.uk/uk/2011/dec/14/fingerprint-evidence-opinion-fact

The Supreme Court of Canada reserved judgment today in a case that pits the right of an Islamic woman to wear a niqab against an accused individual’s rights to be presumed innocence, to have a fair trial, and to make full answer and defence. The Niqab is a garment which covers the entire face, save a slit for the eyes. The issue before the Supreme Court is whether the complainant in a sexual assault trial should be permitted to wear the niqab while she testifies.

This is admittedly a complicated issue; however, at the end of the day, our accommodation of religious freedom must yield to the the threat of wrongful convictions. Simple intuition suggests that covering a critical witness’ face is a barrier to the truth-finding function of the court. Imagine how hard it would be to lie in court under oath while being cross examined by an experienced lawyer. Now, imagine how much easier it would be to lie if your face was covered. Herein lies the problem with witnesses wearing the niqab in cituations where an individual’s freedom is at stake.

For more information, check out this article from today’s Toronto Star: http://www.theglobeandmail.com/news/national/judges-lawyer-clash-over-womans-right-to-wear-niqab-in-sex-assault-case/article2264483/

The Conservative government’s proposed “Omnibus Crime Bill” is notoriously plagued with problems, but one of the most harshly criticized element of the bill is the intention to enact a slew of new mandatory minimum sentences into the Criminal Code of Canada.

Historically, judges enjoyed a lot of discretion in determining sentence once an individual had been convicted of a crime. This made sense, because no two crimes are identical and no two offenders are completely alike. The old sentencing regime gave judge’s the freedom to craft sentences based on the unique attributes of the offender and the circumstances of his or her offence to best accomplish certain goals, such as rehabilitation, deterrence, and denunciation.

Over the years we have seen the implementation of more and more mandatory minimums. One infamous example is the three year mandatory minimum for possession of a loaded restricted firearm, no matter what the circumstances of the offence. This means that a young man with no criminal record and who is otherwise a productive member of his community who had a gun in his possession for a matter of minutes, would, if convicted, be sentenced to spend at least three years in a federal penitentiary – no matter what the circumstances.

The “Omnibus Crime Bill” threatens to create new mandatory minimums for offences such as: drinking and driving, possession, production and trafficking of narcotics (including marijuana), and some types sexual assault.

No matter where critics land in their views on crime control and the need for tough sentences, most informed critics know that mandatory minimum sentences are not the way to go. Without a mandatory minimum there is nothing to prevent a judge from giving a harsh sentence where it is truly deserved, but there is also room for leniency and understanding in our criminal justice system where it is deserved.

To read more about mandatory minimums check out this recent article in the Toronto Star which criticizes the new mandatory minimums for drinking and driving offences: http://www.thestar.com/iphone/news/canada/politics/article/1093210–study-raises-do. It talks about empirical studies that have been done proving that harsher sentences do not deter individuals from committing the same crime again and also talks about how targeting the causes of crime (addiction, in this case) will have a greater impact on deterrence.

Derstine Penman client, Jeremy Hall, was committed to trial last week on charges of first degree murder. Unfortunately, the press continues to sensationalize the case against Mr. Hall, jeopardizing his constitutional right to a fair trial.

http://www.thespec.com/news/local/article/628430–hall-to-stand-trial-in-billy-mason-murder-case