The Recognition of Prosecutorial Obligations in an Era of Mandatory Minimum Sentences of Imprisonment and Over-representation of Aboriginal People in Prisons

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