Criminal Law

Mandatory minimums weaken the justice system: Forstner

By Peter Small, AdvocateDaily.com Contributor

Mandatory minimum sentences “suck the air” out of a courtroom, weakening the chances of arriving at a just result, says Oshawa criminal lawyer Lawrence Forstner.

“It’s an absolute distraction and waste of time that has employed an awful lot of lawyers but probably hasn’t helped the criminal justice system at all,” says Forstner, principal of Forstner Law.

This was recently brought home by a case he is handling, Forstner tells AdvocateDaily.com.

His client, an intellectually challenged young man, was charged with sexual assault and sexual interference of a 14-year-old with whom he had a relationship. He is five and a half years older than her, Forstner says.

A 14- or 15-year-old can only be deemed to have consented to sexual activity as long as the partner is less than five years older and there is no relationship of trust, authority or dependency or any other exploitation of the young person, according to the Department of Justice.

If he were to be found guilty of sexual assault, he would be subject to a mandatory minimum prison sentence of one year. Because he is a permanent resident of Canada, but not a citizen, this sentence would lead to his automatic deportation, Forstner says.

Any sentence of more than six months makes a non-citizen inadmissible to Canada, under s. 36 (1)(a) of the Immigration and Refugee Protection Act.

Forstner was so concerned about his client’s potential deportation consequences that he approached the Crown to negotiate a plea arrangement. “I had to deal with his biggest jeopardy first, which was the mandatory minimum,” he says.

The Crown agreed to stay the sexual assault charge and pursue only the sexual interference charge — the mandatory minimum is no longer in effect for that charge after it was struck down by an Ontario judge.

“They were giving us a fighting shot to keep him from being deported,” Forstner says.

In return, the defendant pleaded guilty to the sexual interference charge.

But recently, several other issues have come to light that were obscured by the spectre of a mandatory minimum sentence, Forstner says.

“There are just so many things about this case that were wrong. The mandatory minimum was the big focus that sucked all the air out of the room,” he says.

In particular, Forstner learned that his client had been assessed as having the mental development of an eight-year-old, although he hides it well.

“The fact that he had an intellectual disability didn’t come out until we worked through all of this stuff about the mandatory minimums. It really got in the way,” he says.

What Forstner’s client really needs is an adult protection order because he cannot manage on his own, he says.

“In any other circumstance where there wasn’t a mandatory minimum, we wouldn’t have started the conversation about jail. We might have gotten to the reality of this case,” Forstner says.

Still, the Crown is seeking a one-year jail term at his sentencing in September, he says.

Forstner is optimistic that his client will receive either a conditional sentence or no more than six months’ imprisonment, which would spare him from automatic deportation to the United States.

The defendant’s intellectual disability doesn’t remove his responsibility or guilt, he says. “But it significantly reduces his moral blameworthiness.”

Mandatory minimums are like an ominous presence in court, which should be a healing place, says Forstner, who focuses on therapeutic jurisprudence, a process that emphasizes the law’s healing potential.

“When you’re going into sentencing, especially when you have a sympathetic client, you want to make it not so much about the fight. But if you have to fight about a mandatory minimum, it’s hard to then get off of that to talk about healing, restorative approaches.”

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