Aboriginal status not a consideration for prosecution

Ashley Fitzpatrick
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Provincial case challenging drunk-driving sentence taken to Supreme Court

Upon his fifth impaired driving-related conviction, Frederick Anderson was told by the Crown prosecutor he would be subject to a mandatory minimum sentence of not less than 120 days in prison.

It was the beginning of a legal story only concluded three years later, with a June 6 ruling from the Supreme Court of Canada.

Anderson had been arrested with more than 80 milligrams of alcohol in 100 millilitres of blood, but considered the idea of the prosecutor asking for the mandatory sentence unfair, claiming it did not allow for the fair consideration of his Aboriginal status.

In a Charter application, introduced before sentencing, he argued the decisions of the prosecutor did not allow for free and fair consideration of Aboriginal status at sentencing.

In a 2011 decision, the trial judge, William English, set aside the minimum and sentenced Anderson to a 90-day intermittent sentence, followed by two years’ probation, with a five-year driving ban.

The Crown took the case to the Newfoundland and Labrador Court of Appeal, but the appeal was rejected — in a 2013 decision by Chief Justice Derek Green, Justice Malcolm Rowe and Justice Gale Welsh — with the Court stating the prosecutor’s not considering the accused’s Aboriginal status, or adding a direction that it be considered, “renders the sentencing hearing fundamentally unfair.”

The appeal was made to the Supreme Court of Canada and it raised two issues, the first being whether or not the Charter requires a prosecutor to consider Aboriginal status when making decisions that can limit sentencing options.

In the Anderson case, that was a decision to seek a mandatory minimum sentence for impaired driving.

The second issue was essentially to what extent the prosecutor’s decisions, once made, might be reviewed.

The justice system is adversarial — two sides presenting their strongest possible arguments. In terms of sentencing, the prosecutor makes decisions about what they will seek, within certain parameters, and then typically advises the accused, ahead of a sentencing hearing.

“This appeal raises the following question: are Crown prosecutors constitutionally required to consider the Aboriginal status of an accused when deciding whether or not to seek a mandatory minimum sentence for impaired driving?

“The answer, in my view, must be no,” said Justice Michael Moldaver, delivering the Supreme Court of Canada’s unanimous decision.

The judge’s role is as the impartial arbiter, it notes.

It is for the judge to hear both sides and then deliver a decision on sentencing, one that includes any consideration of Aboriginal status.

The prosecutor is not required to consider the same.

“Having concluded that the Crown is not under a constitutional obligation to consider the accused’s Aboriginal status when making a decision that limits the sentencing options available to a judge, the next question is whether the Crown’s decision (on the sentencing recommendation) is reviewable in some other way, and if so, under what standard,” it stated.

All decisions by Crown prosecutors can be reviewed to determine if there was any abuse of process in one case or another.

In terms of deciding on sentencing, the Court was not keen to go further.

“It would greatly expand the scope of judicial review of discretionary decisions made by prosecutors and put at risk the adversarial nature of our criminal justice system by inviting judicial oversight of the numerous decisions that Crown prosecutors make on a daily basis,” it states.

It added, “If a mandatory minimum regime requires a judge to impose a disproportionate sentence, the regime should be challenged.”

The Newfoundland and Labra­dor Court of Appeal decision was set aside. The Supreme Court has ordered a term of imprisonment of 120 days substituted for Anderson, but with service of the remaining sentence stayed.

Interveners in the case before the Court included the director of Public Prosecutions of Canada, the attorney general of Ontario, the attorney general of New Brunswick, the attorney general of British Columbia, the David Asper Centre for Constitutional Rights and Aboriginal Legal Services of Toronto.


Organizations: Supreme Court of Canada, Charter, Newfoundland and Labrador Court Public Prosecutions David Asper Centre for Constitutional Rights and Aboriginal Legal Services of Toronto.afitzpatrick

Geographic location: Newfoundland, Canada, Ontario New Brunswick British Columbia

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Recent comments

  • BOB
    June 07, 2014 - 06:41

    OK seriously? I don't get it. Because he's Aboriginal, he feels he should be given a lesser sentence? I can't even believe this was even a consideration and tax payers dollars were wasted on it! This is called reverse discrimination. Drinking and driving is a serious issue that puts others in serious harm. And the sentences given to these offenders are too lenient as it is. You do the crime, you do the time... regardless of race, gender, status, religion, color, sexual orientation, etc... everybody should be treated equal ALL the time!!