Mandatory Minimums and Lawyers’ Ethics

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Statute commented on: Safe Streets and Communities Act, Bill C-10, 60-61 Elizabeth II, Assented to March 13, 2012

Introduction

This week the New York Times had an article highlighting two recent federal court decisions criticizing the effect of mandatory minimums on criminal justice. One, a sentencing memorandum by a District Court judge in U.S.A. v Gurley, USDC, Mass., May 17, 2012, criticized the diminution of the role of the jury in the criminal trial that results from plea bargaining . The judge held that jury leniency must be taken into account in determining the range of minimum sentences to be applied, but noted that the increased place of plea bargaining in the American system had rendered the role of the jury functionally irrelevant, and the judge largely so. “Prosecutors run our federal criminal justice system today. Judges play a subordinate role – necessary yes, but subordinate nonetheless. Defense counsel take what they can get” (p. 50). The other, also a sentencing memorandum but this time from the District Court of New York, USA v Dossie, USDC, NY, March 30, 2012, was even harsher in its indictment. The accused in that case was a drug user who engaged in a minor way in the sale of drugs. As summarized by Judge Gleeson, “His sole function was to ferry money to the supplier and crack to the informant on four occasions for a total gain to himself of $140” (p. 8). Unfortunately, however, Dossie’s four transactions involved quantities of crack cocaine in excess of 28 grams. As a consequence, he fell within the mandatory minimum sentence for such offences of 5 years. The prosecutor sought that sentence, and Judge Gleeson had no choice but to impose it, even though in his view “It was not a just sentence” (p. 19). Judge Gleeson noted that this result was a product of a misapplication of the original intention of the mandatory minimum sentencing laws – in which quantities of drugs sold was intended to be a proxy for individuals who were managers or leaders in the drug trade – and of excessive prosecutor zeal.

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University Campus is not Charter-Free

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Case considered: R v Whatcott, 2012 ABQB 231

 Yet another case has arisen that raises the issues of whether and when the Charter might apply on a university campus. William Whatcott (Whatcott), an anti-abortion and anti-gay activist, is not merely before the Supreme Court of Canada for a human rights matter involving anti-gay leaflets (see: Appeal heard on October 12, 2011); he has also engaged the Alberta courts and the University of Calgary. In 2005, Whatcott was prohibited from campus under the Alberta Trespass to Premises Act, RSA 2000, c T-7 (TPA). On July 25, 2008, Whatcott was arrested by campus security for trespassing, when he was posting anti-gay literature on campus. Calgary Police then charged Whatcott with an offence under the TPA. After a trial, the Provincial Court of Alberta decided that Whatcott’s Charter right to freedom of expression (under section 2(b)) had been violated. The Trial Judge (Judge Bascom) then stayed the proceedings (see 2011 ABPC 336). The Crown appealed that decision to the Alberta Court of Queen’s Bench.

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No (Soup) Practice For You!

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Case considered: Lameman v Alberta, 2012 ABCA 59

Introduction

On March 1, 2012 the Alberta Court of Appeal upheld the judgment of Justice Yamauchi dismissing the application of the Beaver Lake Cree Nation to have English lawyers appear on their behalf. In a blog on Justice Yamauchi’s decision, I suggested that the decision was legally sound but raised questions of public policy in relation to whether the practice of law should be so rigorously constrained. Specifically, I questioned whether “there [could] not be a more nuanced or careful approach to the provision of legal services, in which consumer and public interests are protected, but the availability of competent and helpful legal advice is not irrationally restricted.” (Unauthorized Practice and Access to Justice).

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The need to explain yourself before imposing discipline under the law

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Case considered: Pridgen v University of Calgary, 2012 ABCA 139

The Alberta Court of Appeal recently issued its judgment in the appeal by the University of Calgary from the October 2010 decision of Madam Justice Strekaf quashing a student discipline decision by the University (Pridgen v University of Calgary, 2010 ABQB 644). Madam Justice Strekaf’s judicial review decision was the subject of an ABlawg post by Heather Beyko – one of our JD students – in November 2010 (See “Facebook and Freedom of Expression”). Briefly speaking, the University imposed discipline on two undergraduate students for posting comments on Facebook concerning a course of instruction taken by them in the Faculty of Communication and Culture (as it was at the time) during the Fall 2007 semester. The University decided such comments amounted to non-academic misconduct and imposed discipline on both students including several months of academic probation. The students were successful on judicial review in front of Madam Justice Strekaf, who ruled the University decision was unreasonable in law and also infringed section 2(b) of the Charter of Rights and Freedoms. The Court of Appeal has unanimously upheld Madam Justice Strekaf’s finding that the University disciplinary decision was unreasonable under principles of administrative law. The Court of Appeal was more guarded on the Charter issue, with two of the three justices commenting it was unnecessary to consider the Charter to decide this case. My comment here focuses on the administrative law issues raised in this appeal.

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One Person, Two Universities, Three Alberta Cases

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 Cases Considered: Oleynik v University of Calgary, 2012 ABQB 189 (Case #1); University of Alberta v Alberta (Information and Privacy Commissioner), 2012 ABQB 247 (Case #2); Association of Academic Staff of the University of Alberta v University of Alberta, 2012 ABQB 248 (Case #3)

These three cases involve personal privacy issues in the process of applying for a research grant from Social Sciences and Humanities Research Council of Canada (SSHRC). Two of the cases suggest that the access to information requests to Universities were being used to obtain evidence to support allegations of bias in decision-making.

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