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mandatory minimums are intended to remove judicial discretion and I don't see any exceptions listed
the defendants don't have a leg to stand on, by their covert actions and their lack of cooperation they have shown they knew what they were doing was illegal, that they were selling a service that they didn't have a right to sell
You could be right, but we will have to see, as I see this more of a test case for penalty phase, if convicted under 380(1), plus perhaps does this fit the description of Fraud.
Is this a prohibited act of deceit, falsehood. Is there an act of stealing money, or stealing one's identity. I presume it's stealing from the provider or copyright holders. Could a sharp lawyer make arguments here.
I am not familiar with the details like lack of cooperation, what was it. If you did not think you were doing anything criminally illegal, why cooperate.
I ran a Satellite business a long time ago. I always thought I had Civil exposure as per lawyer consult, plus other litigation going on. However, my attorney saw no Criminal liability. I was raided by the RCMP in 1998 for Grey market activities.
Obviously given no notice for any cooperation. If I had, I would have closed my business.
Many or most defendants are radicals regarding the law, but since I don't know the background no treating them that way.
If they were told they were acting illegal, did not cooperate, then they had knowledge, but as said not familiar with the circumstances .
One more point, 380(1) calls for a minimum of two years if the fraud is over 1 million. It likely is way more than that, but who can accurately prove the damages, amount of loss suffered from the fraud?
In the end, I am speculating they will plead guilty to the lessor charge.
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(a) provide a mandatory minimum sentence of imprisonment for a term of two years for fraud with a value that exceeds one million dollars;
GS2
I think it's interesting to note the following:
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Is there a mandatory minimum sentence for fraud in Canada?
Yes – for the moment, there is. Section 380(1.1) creates a 2-year minimum sentence for frauds that exceed $1,000,000. In recent years, the Supreme Court of Canada and other courts have struck down several mandatory minimum sentences. As it stands, the mandatory minimum sentence for frauds over $1,000,000 has not been struck down and remains on the books.
The Ontario Court of Appeal addressed the issue in R. v. Plange (2019 ONCA 646). At trial, the sentencing judge struck down the minimum, finding it was unconstitutional, and imposed a 13 month sentence (instead of 2-years). The Court of Appeal held that the trial judge was wrong to strike down the minimum for the reasons that he did, but only because the issue had not been argued by the parties at trial, not because the minimum is actually constitutional. The Court held that Plange actually deserved a three year sentence for what he did, and declined to rule whether the minimum sentence was constitutional.
However, there is still reason to believe the minimum is constitutionally vulnerable, and someone who is facing a finding of guilt that triggers the section will want to think about challenging it. Justice Doherty wrote a separate set of concurring reasons in Plange that held the minimum sentence is unconstitutional, because one can imagine examples of cases where it would be cruel and unusual punishment to sentence someone to 2-years in jail for a fraud technically worth more than $1,000,000 – for example, what if someonecommitted a fraud, but didn’t know how much it was worth, and who turned himself in, pleaded guilty, and cooperated with the police. This “hypothetical” case is enough to establish the minimum should be struck down, and Justice Dohery’s decision, although not binding on trial courts, provides a ready-made example that can be given to trial judges.
So you have a trial judge who already did not impose the minimum two year sentence and although it was reversed on Appeal, it was not reversed for the reason the trial judge did not impose it, being he/she found it unconstitutional.
Not saying it could be argued in this case or not if imposed, as don't know the details, but it seems the door is open for a defendant to appeal a minimum 2 year sentence saying it was unconstitutional. It would have to be a good case for it.
GS2
the Appeals court is just reaffirming what I said.
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At trial, the sentencing judge struck down the minimum, finding it was unconstitutional,
in other words, until it is challenged it is the law and should be enforcedQuote:
The Court of Appeal held that the trial judge was wrong to strike down the minimum for the reasons that he did
here's an article on Carlos Rocha
4 of the individuals that are being charged by the RCMP are not named in the settlement so they may have plausible deniabilityCode:https://torrentfreak.com/iptv-pirate-agrees-to-pay-well-over-half-a-billion-dollars-in-damages-220507/
but Carlos just entered into an agreement to pay Dish in excess of $585 million
there are links to the documents at the end of the article on torrentfreak
Quote:
Originally Posted by really_troubled
I think you missed the point. A judge had already ignored it, was not argued on Appeal, that point, other courts have found minimum sentences unconstitutional confirmed by the Supreme Court. The point was that it can be challenge and there is some case law to support it.
GS2
Thank you. I will look up that case. US Civil lawsuit. Likely the providers there, provided evidence to the RCMP in Canada.
The violations in the Civil lawsuit are standard typical ones used, not fraud per say, but more theft of signals.
I am only wondering about 380(1) the Fraud charge, here in the Criminal filing in Canada. Not the other charges.
Again don't think we will find out, as expecting a plea to some jail time, maybe some restitution.
GS2
So the Civil case was filed under seal originally. The defendant did not bother to file a defense. He had taken off to Portugal prior to the raid in Canada. Plaintiff asked for an extension to serve him. Eventually was served but still did bother to file a defense and instead right away entered into settlement talks. Looks like he had no lawyer.
There are 4 family members charged in Canada. Plenty to plea deal with. I'll plead guilty to this if you drop the charges against my wife, son, father, for examples. I highly doubt they will bother with a trial.
I attached some files if anyone is interested
GS2
I didn't miss the point, you did.Quote:
Originally Posted by Gunsmoke2 - GS2
It wasn't argued on appeal because the question of constitutionality wasn't raised by the defendant.
The trial judge did not have the authority to strike down (or as you put it ignore) the mandatory minimum.
The trial judge violated his oath of office.
The trial judge would have given the defendant 13 months and the Appeals Court said, not so fast, this guys deserves 3 years. How do you explain that ?
It's obvious that the trial judge doesn't know his ass from a hole in the ground.
Until it's challenged, it is the law and no trial judge has the right to strike it down unless the question of the constitutionality is raised during the trial.
Even the hypothetical that Justice Doherty wrote is nonsense. It would make more sense to argue that an exception should be made for that hypothetical than it would be to strike the mandatory minimum because an improbable situation could arise.
No, you missed my point because I said was "other" courts have found minimum sentences unconstitutional confirmed by the Supreme Court, and further to that, the point was that it can be challenge and there is some case law to support it.
You however went on some tangent about the trial judge because I said he ignored the minimum because he found it unconstitutional. It was overturned on appeal but just shows how shaky the minimum sentences are with some courts which goes to my point.
And no the trial judge did not violate any oath, was not reprimanded or anything. He applied the Charter, which is fine.
You seemed to be confused because we are not talking about a trial to establish guilt or innonce, we are talking about a "sentence", the sentencing phase. We are not talking about raising the question of constitutionally at trial, like I am innocent because the law violates the Charter. He was guilty. Talking about the penalty, amount of it at sentencing.
The trial judge used 3 hypotheticals to declare the section unconstitutional. The appeal court said using the hypotheticals was an error, not that it was an error to declare it unconstitutional.
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29] In my view, the judge’s use of these hypotheticals to declare the section unconstitutional was in error
However one dissenting appeal Judge said they should consider using a hypothetical of their own for the constitutional question.
It's merely your opinion that it's nonsense, Doherty's hypothetical, makes good sense to me, ( read the full opinion on it) but it surely makes your comments about the trial judge seem like nonsense, when you have have a higher court appeal Judge saying this
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I part company with my colleague, however, on the constitutional question. In my view, this court should address the merits of the constitutional argument. I agree with the trial judge that the two-year mandatory minimum in s. 380(1.1) does amount to cruel and unusual punishment, and that the section should be declared of no force or effect
The trial judge violated his oath of office? Huh? Did the appeal judge do so also? Does appeal judge also not know his ass from a hole in the ground? This could have been easily appealed with that dissenting opinion where the Supreme Court has already found minimum sentences unconstitutional.
Doherty is very well respected.
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The trial judge would have given the defendant 13 months and the Appeals Court said, not so fast, this guys deserves 3 years. How do you explain that ?
Easily, Courts impose different sentences as some justices are more lient, some stricter. If it was appealed and there was no reason to, the Supreme Court Court have lowered it, or even raised it. This has no bearing on the question of the minimum sentence or constitutionally of it .
Justice Doherty who you put down, would have imposed a
3 year sentence also. Two distinct things here. Should not mixed them up. Could very well be the 13 months was too low for the crime committed and that the minimum sentence is unconstitutional at the same time.
GS2
Let me start by saying that I'm pretty busy and don't have a lot of time to devote to this, but it looks like you are right into the subject, so I will see if I can keep it going.
First of all, I have no use for judges or lawyers. They are nothing more than a mix of bottom feeders, vultures, and circle flies.
Now before you go pointing out the obvious, yes, that is my opinion.
You claim to agree with Doherty, then I guess you are ok that fiction is being used to overturn the will of Parliament.
These guys (some of the judiciary) are pissed that Parliament has enacted a bunch of mandatory minimum sentences. They feel it unnecessarily restricts their judicial discretion. Well, newsflash, that is parliaments domain. Parliament writes the laws and the penalties. That is how it works and always has. Judges judicial discretion has always been constrained by parliament and precedent. Judges are tasked with upholding the laws of the country, not intentionally attempting to circumvent them because they don't like Parliaments intention. They don't get to disregard the laws or penalties they disagree with.
I referred to Doherty's arguement as nonsense because it is a hypothetical, so it's nothing more than a fictitious arguement.
The Supreme Court is even on board with this nonsense, although they qualified it by adding the word "reasonable". Not all that surprising considering they are also judges and it's well documented that a majority of judges don't agree with mandatory minimums - nothing like a good old conflict of intertest.
Imagine that, a whole new dimension, it must be a reasonable hypothetical.
The result, a fabrication that is validated by an assumption.
This is what they are using to attack legally enacted mandatory minimums.
Below, including the commentary, is copied from the Ontario Judicial Councils page on Judicial Conduct. The part I highlighted would seem to indicate they are required to use the facts and circumstances of the case before the court.
I don't disagree that judges have a duty to try to determine if the punishment would be cruel and unusual, but it should pertain to the case that is before them. I see nothing wrong with that, but that's not what's happening.Quote:
1. The Judge in Court
1.1 Judges must be impartial and objective in the discharge of their judicial duties.
Commentaries:
Judges should not be influenced by partisan interests, public pressure or fear of criticism. Judges should maintain their objectivity and shall not, by words or conduct, manifest favour,bias or prejudice towards any party or interest.
1.2. Judges have a duty to follow the law.
Commentaries:
Judges have a duty to apply the relevant law to the facts and circumstances of the cases before the court and render justice within the framework of the law.
Just look at these two cases that Doherty was involved in. He used a hypothetical arguement to overturn the will of Parliament. He admits that it would not be cruel and unusual in the cases that were overturned.
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In two recent landmark decisions, R. v. Nur and R. v. Smickle, 24 the Ontario Court of Appeal declared mandatory minimum sentences for gun possession under section 95 of the Code unconstitutional.
Smickle concerned a first-time offender who was found in his cousin's apartment, posing for pictures to be posted on Facebook while holding a loaded illegal firearm. Charged under section 95(1), the accused was facing a minimum three year sentence. In Nur, the accused was caught with possession of a prohibited firearm outside of a community centre in Toronto.
Writing for the Court in both decisions, Justice Doherty did not find the mandatory minimum sentence cruel and unusual in the circumstances of these particular offenders but, instead, found that the penalty became cruel and unusual when applied to a reasonable hypothetical.
If your busy, you don't have to keep it going. No obligation. I do like law. I have use many lawyers, some better than others, been to Court several times thus been exposed to various Judges. I am fine with them, well most of the time. I will try to simply this for you as again you seem confused, this time on Parliament law and the role of the Court.
We are talking about the Charter, you know whether the law, section, is unconstitutional. Courts can strike down legislation if it is contrary to sections of the Charter. Your whole premise that the judge has a duty to follow the law and that's it is flawed here
You copying from the Ontario Judicial Councils page on Judicial Conduct was not productive. Take your time on this and try to be more open minded, instead of applying your strong view as your making some errors here with your comments on certain judges. Jmho.
Doherty wrote the opinion on behalf of the Ontario appeals Court meaning all the other justices agreed with him. There were 5 other Justices, 6 in total. The full appeal Court. Do you want to put them all down. In that decision they used a "Reasonable" hypothetical". Instead of grabbing snippets please read the decision. There are 208 paragraphs. It is an extremely well written opinion. It referred to these cases below. They really did a commendable job knowing it would be appealed. It was and it was up held by the Supreme Court with 2 dissenting judges only.
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Bedford v. Canada (Attorney General) (2012), 109 O.R. (3d) 1, [2012] O.J. No. 1296, 2012 ONCA 186, 256 C.R.R. (2d) 143, 91 C.R. (6th) 257, 290 O.A.C. 236, 282 C.C.C. (3d) 1, 346 D.L.R. (4th) 385, 100 W.C.B. (2d) 704 [Leave to appeal to S.C.C. granted [2012] S.C.C.A. No. 159]; Ewing v. California, 538 U.S. 11, 123 S. Ct. 1179, 155 L. Ed. 2d 108 (2003); Krieger v. Law Society of Alberta, [2002] 3 S.C.R. 372, [2002] S.C.J. No. 45, 2002 SCC 65, 217 D.L.R. (4th) 513, 293 N.R. 201, [2003] 1 W.W.R. 193, J.E. 2002-1884, 7 Alta. L.R. (4th) 1, 312 A.R. 275, 43 Admin. L.R. (3d) 167, 168 C.C.C. (3d) 97, 4 C.R. (6th) 255, 117 A.C.W.S. (3d) 166, 54 W.C.B. (2d) 603; R. v. Beare; R. v. Higgins, 1988 CanLII 126 (SCC), [1988] 2 S.C.R. 387, [1987] S.C.J. No. 92, 55 D.L.R. (4th) 481, 88 N.R. 205, [1989] 1 W.W.R. 97, J.E. 89-13, 71 Sask. R. 1, 45 C.C.C. (3d) 57, 66 C.R. (3d) 97, 36 C.R.R. 90, 8 W.C.B. (2d) 247; R. v. Big M Drug Mart, 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, [1985] S.C.J. No. 17, 18 D.L.R. (4th) 321, 58 N.R. 81, [1985] 3 W.W.R. 481, 37 Alta. L.R. (2d) 97, 60 A.R. 161, 18 C.C.C. (3d) 385, 85 CLLC Â14,023 at 12108, 13 C.R.R. 64, 14 W.C.B. 157; R. v. Bradbury, [2013] B.C.J. No. 1261, 2013 BCCA 280, 3 C.R. (7th) 410, 339 B.C.A.C. 169, 298 C.C.C. (3d) 31, 107 W.C.B. (2d) 719; R. v. Briscoe, [2010] 1 S.C.R. 411, [2010] S.C.J. No. 13, 2010 SCC 13, EYB 2010-171953, 2010EXP-1249, J.E. 2010-680, 400 N.R. 216, 210 C.R.R. (2d) 150, 316 D.L.R. (4th) 577, 253 C.C.C. (3d) 140, 477 A.R. 86, 73 C.R. (6th) 224, 22 Alta. L.R. (5th) 49, [2010] 6 W.W.R. 1, 87 W.C.B. (2d) 293; R. v. Cairns, [2007] B.C.J. No. 2513, 2007 BCCA 572, 54 C.R. (6th) 56, 227 C.C.C. (3d) 149, 248 B.C.A.C. 287, 76 W.C.B. (2d) 288; R. v. Chalk (2007), 88 O.R. (3d) 448, [2007] O.J. No. 4627, 2007 ONCA 815, 231 O.A.C. 107, 227 C.C.C. (3d) 141, 52 C.R. (6th) 371, 76 W.C.B. (2d) 264; R. v. D. (Q.), 2005 CanLII 30044 (ON CA), [2005] O.J. No. 3532, 201 O.A.C. 138, 199 C.C.C. (3d) 490 (C.A.); R. v. 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(2d) 35, 280 C.C.C. (3d) 365, 91 C.R. (6th) 132, 100 W.C.B. (2d) 141 (S.C.J.); R. v. Smythe, 1971 CanLII 831 (SCC), [1971] S.C.R. 680, [1971] S.C.J. No. 62, 19 D.L.R. (3d) 4803 C.C.C. (2d) 366, 16 C.R.N.S. 147, 71 D.T.C. 5252; R. v. Snobelen, [2008] O.J. No. 6021 (C.J.); R. v. Summers (2013), 114 O.R. (3d) 641, [2013] O.J. No. 1068, 2013 ONCA 147, 304 O.A.C. 322, 279 C.R.R. (2d) 289, 297 C.C.C. (3d) 166, 37 C.R. (7th) 125, 105 W.C.B. (2d) 789 [Leave to appeal to S.C.C. granted [2013] S.C.C.A. No. 191]; R. v. T. (V.), 1992 CanLII 88 (SCC), [1992] 1 S.C.R. 749, [1992] S.C.J. No. 29, 134 N.R. 289, [1992] 3 W.W.R. 193, J.E. 92-516, 7 B.C.A.C. 81, 67 B.C.L.R. (2d) 273, 71 C.C.C. (3d) 32, 12 C.R. (4th) 133, 15 W.C.B. (2d) 546; R. v. Wholesale Travel Group Inc. (1991), 1991 CanLII 39 (SCC), 4 O.R. (3d) 799, [1991] 3 S.C.R. 154, [1991] S.C.J. No. 79, 84 D.L.R. (4th) 161, 130 N.R. 1, J.E. 91-1635, 49 O.A.C. 161, 67 C.C.C. (3d) 193, 38 C.P.R. (3d) 451, 8 C.R. (4th) 145, 7 C.R.R. 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(4th) 536, 63 N.R. 266, [1986] 1 W.W.R. 481, J.E. 86-99, 69 B.C.L.R. 145, 23 C.C.C. (3d) 289, 48 C.R. (3d) 289, 18 C.R.R. 30, 36 M.V.R. 240, 15 W.C.B. 343; [page405] Sriskandarajah v. United States of America, [2012] 3 S.C.R. 609, [2012] S.C.J. No. 70, 2012 SCC 70, 301 O.A.C. 264, 290 C.C.C. (3d) 349, 97 C.R. (6th) 267, 437 N.R. 107, 2012EXP-4400, J.E. 2012-2329, EYB 2012-215331, 45 Admin. L.R. (5th) 1, 356 D.L.R. (4th) 43; Steele v. Mountain Institution, 1990 CanLII 50 (SCC), [1990] 2 S.C.R. 1385, [1990] S.C.J. No. 111, 121 N.R. 198, [1990] 6 W.W.R. 673, J.E. 90-1595, 51 B.C.L.R. (2d) 1, 60 C.C.C. (3d) 1, 80 C.R. (3d) 257, 2 C.R.R. (2d) 304, 11 W.C.B. (2d) 347
And when your finish go read the Supreme Court decision. Amazing how you let your opinion go to the point to say the Supreme Court is on board with this nonsense, when they do not want someone sent to jail for 3 years or some minimum for something that does not warrant it, as it is grossly disproportionate with what you said - " facts and circumstances of the cases before the court". Not everyone, but that particular defendant.
And that was the whole point. The Ontario Court of Appeals and the Supreme Court of Canada had to make a ruling on the constitutionality or not, since it was before them. The issue was “grossly disproportionate”. You are confused. Ontario Court of Appeals affirmed the sentence imposed by the trial judge. The court held that the three year minimum sentence infringed s. 12 of the Charter and could not be saved by s. 1. The court declared s. 95(2)(a)(i) to be of no force and effect to the extent that it imposed a mandatory three year minimum term of imprisonment when the Crown proceeded by indictment. The court agreed with the trial judge that the three year minimum did not offend s. 15.
They did not change the defendant's sentence. They ruled that the section 95(2)(a)(i) three-year mandatory minimum sentence for firearm offences was unconstitutional.
In fact from the Supreme Court.
Quote:
In this case, N and C do not argue that the mandatory minimum terms of imprisonment in s. 95(2) are grossly disproportionate as applied to them. Rather, they argue that those mandatory minimum terms of imprisonment are grossly disproportionate as they apply to other offenders.
N= Nur. C= Charles. They were heard at the same time. You realize people can challenge the validity of a law and it does not have to apply to themselves.
As far as the use of an hypothetical.
Quote:
[61] To be sure, the language of “reasonable hypotheticals” in the context of mandatory minimum sentences and the exaggerated debate that has surrounded the term has led some to fear that the potential for finding a law inconsistent with the Charter is limited only by the bounds of a particular judge’s imagination. This fear is misplaced. Determining the reasonable reach of a law is essentially a question of statutory interpretation. At bottom, the court is simply asking: What is the reach of the law? What kind of conduct may the law reasonably be expected to catch? What is the law’s reasonably foreseeable impact? Courts have always asked these questions in construing the scope of offences and in determining their constitutionality.
[62] The inquiry into cases that the mandatory minimum provision may reasonably be expected to capture must be grounded in judicial experience and common sense. The judge may wish to start with cases that have actually arisen (I will address the usefulness of reported cases later), and make reasonable inferences from those cases to deduce what other cases are reasonably foreseeable. Fanciful or remote situations must be excluded: Goltz, at p. 506. To repeat, the exercise must be grounded in experience and common sense. Laws should not be set aside on the basis of mere speculation.
[63] Not only is looking at the law’s impact on persons whom it is reasonably foreseeable the law may catch workable — it is essential to effective constitutional review. Refusing to consider reasonably foreseeable impacts of an impugned law would dramatically curtail the reach of the Charter and the ability of the courts to discharge their duty to scrutinize the constitutionality of legislation and maintain the integrity of the constitutional order. The protection of individuals’ rights demands constitutional review that looks not only to the situation of the offender before the court, but beyond that to the reasonably foreseeable reach of the law. Testing the law against reasonably foreseeable applications will prevent people from suffering cruel and unusual punishment in the interim until the mandatory minimum is found to be unconstitutional in a particular case.
[64] Refusing to consider an impugned law’s impact on third parties would also undermine the prospect of bringing certainty to the constitutionality of legislation, condemning constitutional jurisprudence to a wilderness of single instances. Citizens, the police and government are entitled — and indeed obliged — to know what the criminal law is and whether it is constitutional. Looking at whether the mandatory minimum has an unconstitutional impact on others avoids the chilling effect of unconstitutional laws remaining on the statute books.
[65] I conclude that a mandatory minimum sentence may be challenged on the ground that it would impose a grossly disproportionate sentence either on the offender or on other persons in reasonably foreseeable situations. The constant jurisprudence of this Court and effective constitutional review demand no less. In the result, a mandatory minimum sentencing provision may be challenged on the basis that it imposes cruel and unusual punishment (i.e. a grossly disproportionate sentence) on the particular offender before the court, or failing this, on the basis that it is reasonably foreseeable that it will impose cruel and unusual punishment on other persons.
[77] … when a mandatory minimum sentencing provision is challenged, two questions arise. The first is whether the provision results in a grossly disproportionate sentence on the individual before the court. If the answer is no, the second question is whether the provision’s reasonably foreseeable applications will impose grossly disproportionate sentences on others. This is consistent with the settled jurisprudence on constitutional review and rules of constitutional interpretation, which seek to determine the potential reach of a law; is workable; and provides sufficient certainty.
You call the above nonsense. I call it sensible, reasonable & right.
Justice McLachlin from the Supreme Court said this, What is wrong with it?
Quote:
McLachlin CJ emphasized the need to tailor criminal sentences to the seriousness of the situation
GS2