The Recognition of Prosecutorial Obligations in an Era of Mandatory Minimum Sentences of Imprisonment and Over-representation of Aboriginal People in Prisons
Bibliographic record
Abstract
In Canada, recent decisions have reaffirmed the almost unfettered discretionary power of prosecutors, and in Anderson the Supreme Court has also decided that prosecutors, unlike judges, do not have a constitutional obligation to consider the principle of proportionality, including Aboriginal status, when making decisions that trigger mandatory minimums and reduce the sentencing options available for judges. The Court found that the role of prosecutors is substantially different than the role of judges, highlighting that the prosecutorial function does not include sentencing, and that prosecutorial discretion should generally be protected from judicial oversight. One may wonder whether this is a realistic and ethical depiction of the role of prosecutors, particularly in light of their role as “ministers of justice”, the ever-increasing use of offences with mandatory minimums, the numerous ways that prosecutors can trigger these sentences, and the shared responsibility of all actors in the criminal justice system to remedy the systemic problem of Aboriginal over-representation in Canadian prisons. The following article analyzes the decision in Anderson and argues that the Court was right in deciding that the principle of proportionality only applies to sentencing judges. Arguably, however, the Gladue principle should be considered a stand-alone principle, separate from the principle of proportionality in sentencing, that applies not only to sentencing judges, but also to all actors in the criminal justice process that have a role to play in the incarceration of Aboriginal people, including prosecutors. Indeed, prosecutors should have a duty to apply the Gladue principle in their decisions that can impact an individual’s liberties, particularly when making decisions that trigger mandatory minimum sentences in the context of Aboriginal offenders. Current prosecutorial guidelines are not satisfactory in this regard since they fail to explicitly mention the consideration of Aboriginal status. This article proposes that prosecutorial guidelines be amended to instruct prosecutors to consider these elements when making decisions that trigger mandatory minimum sentences. It finally presents a possible model of review that promotes accountability, fairness and transparency within these decisions, without impeding on the separation of powers between prosecutors and judges.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.009 | 0.022 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.000 | 0.000 |
| Bibliometrics | 0.001 | 0.001 |
| Science and technology studies | 0.024 | 0.021 |
| Scholarly communication | 0.007 | 0.003 |
| Open science | 0.002 | 0.006 |
| Research integrity | 0.006 | 0.008 |
| Insufficient payload (model declined to judge) | 0.001 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".