Aboriginal Status, Mandatory Minimums, and Prosecutorial Discretion: R v Anderson
Back in June, the Supreme Court of Canada (“SCC”) dealt with the issue of whether Crown prosecutors are constitutionally required to consider the Aboriginal status of accused persons when deciding to pursue a mandatory minimum sentence in R v Anderson, 2014 SCC 41 [Anderson].
The respondent, Frederick Anderson, was charged with impaired driving pursuant to section 253 of the Criminal Code, RSC, 1985, c C-46 [Code], which was his fifth driving-related offence. Because of Anderson’s history of driving-related offences, the Crown, exercising its prosecutorial discretion, decided to seek a mandatory minimum sentence of 120 days.
In order to seek a mandatory minimum, the Crown must notify the accused of its intention to seek a greater punishment (“Notice”) because of a previous conviction before any guilty plea is made. The Crown must also provide the Court with proof that Notice was served pursuant to section 727(1) of the Code.
In accordance with these requirements, Anderson was served Notice and learned that the Crown intended to prove the Notice at the sentencing hearing. Doing so meant that Anderson was subject to a mandatory minimum sentence of no less than 120 days imprisonment under section 255(1)(a)(iii) of the Code.
Before his sentencing hearing, Anderson filed a Charter application arguing that sections 255(1) and 727(1) violated his section 7 rights under the Charter because the combined effect of the provisions effectively transferred a judicial function to the prosecutor by limiting the sentencing judge’s options on sentencing. Anderson also argued that the provisions violated section 15(1) of the Charter because it deprived an Aboriginal person of the opportunity to argue for a non-custodial sentence in appropriate cases.
The trial judge accepted both the section 7 and section 15(1) arguments, stating that the Crown must, in all cases, provide justification for relying on the Notice in sentencing and substituted a 90-day intermittent sentence followed by two years of probation and a five-year driving prohibition.
The Newfoundland and Labrador Court of Appeal rejected the Crown’s appeal, stating that a sentencing hearing would be fundamentally unfair if an accused’s Aboriginal status is not considered and that the Crown’s policy statement with respect to the decision to tender Notice should include a specific direction to consider Aboriginal status.
While it found a breach of section 7 had been established, the Newfoundland and Labrador Court of Appeal was notably split on whether the Crown’s decision to tender Notice is a matter of core prosecutorial discretion or whether it was outside a core prosecutorial function. This distinction is important because of the significant deference that courts afford the Crown on decisions that go to the nature, extent, and participation of the Crown in the prosecution of accused persons.
At the Supreme Court of Canada
At the SCC, Anderson argued that, as a principle of fundamental justice, all state actors must consider Aboriginal status when making a decision that may affect the liberty of an Aboriginal person. If this argument were accepted, it would not matter whether the decision to serve Notice is subject to prosecutorial discretion in cases of Aboriginal offenders. The section 15(1) challenge was not put before the SCC.
Justice Moldaver ultimately rejected Anderson’s argument because it both places the judge’s duty to impose a proportionate sentence on the prosecutor and fails to meet the test for fundamental justice set out in R v DB,  2 SCR 3 [DB].
Section 718.1 of the Code sets out the fundamental principle of proportionality in sentencing, stating that a “sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” One of the factors a sentencing judge is required to consider is Aboriginal status, pursuant to section 718.2(e). As stated by the SCC in R v Gladue,  1 SCR 688 [Gladue], the purpose of section 718.1 is to ameliorate the issue of the disproportionate incarceration of Aboriginal persons. Judges should, therefore,
pay particular attention to the circumstances of aboriginal offenders because those circumstances are unique, and different from non-aboriginal offenders (para 37).
In R v Ipeelee,  1 SCR 433, the Court further noted that the failure of a sentencing judge to consider the Gladue principles breaches both a judge’s statutory obligations and the principle of fundamental justice that sentences be proportionate. In Anderson, however, the Court noted that both of the cases mentioned above make no mention of prosecutorial discretion. It is the judge’s responsibility to impose a sentence that factors in an accused’s Aboriginal status, not the prosecutor’s.
With respect to Anderson’s assertion that the Crown has, as a principle of fundamental justice, an obligation to consider the Aboriginal status of an accused when deciding whether to serve Notice, the Court was not convinced. In DB, the SCC stated that a principle of fundamental justice must enjoy consensus that it is, in fact, fundamental to the way the legal system ought fairly to operate. Justice Moldaver argued that no such consensus existed.
The rationale is that expanding the scope of judicial review of discretionary decisions by Crown prosecutors would cripple the adversarial nature of Canada’s criminal justice system by opening the door to routine judicial review of prosecutorial discretion.
It is worth noting that the SCC’s decision in Anderson does not seem to preclude imposing an obligation on the Crown to consider Aboriginal status when deciding to serve Notice altogether. In his reasons, Justice Moldaver states that
If a mandatory minimum regime requires a judge to impose a disproportionate sentence, the regime should be challenged (para 25).
Anderson’s argument for imposing the obligation on the Crown was unsuccessful because it was, in effect, a challenge to prosecutorial discretion, which courts will review only in cases where there has been an abuse of process. The reasons suggest that Anderson may have received a different result if he had targeted the regime itself, rather than the decision-making power of the Crown.
While the prosecutor’s decision to seek a mandatory minimum has the effect of limiting the sentencing judge’s ability to impose a proportionate sentence without regard to the accused’s Aboriginal status, it is the provisions in the Code that create this problem. It is likely, therefore, that the issue of how mandatory minimums are applied to Aboriginal persons is not entirely resolved. Given the codified obligation to consider Aboriginal status on sentencing, a challenge to the regime itself may succeed where Anderson failed.