Debating justice reform: maybe it’ll have to happen in court


Response to the government’s omnibus crime bill has been fascinating to watch. Thoughtful observers, like Dan Gardner over at the Ottawa Citizen, despair over the government’s refusal for some years now to offer anything like a reasoned argument for its approach, especially on limiting the discretion of judges by imposing more mandatory minimum penalties and no longer allowing  “house arrest” sentences in many cases.

Justice Minister Rob Nicholson doesn’t seem to feel any need to explain himself. (His office and department offered only bare statistics, for example, when I asked for some explanation about why he wants to stop judges from handing down conditional sentences for some crimes.) Given the Conservative majority, I suppose he’s right: the government has the numbers in the House to pass the sprawling law without bothering to seriously answer its critics.

However, quite a few lawyers have mention that constitutional challenges to some aspects of the law are likely. And in court, refusing to engage won’t be an option. With this in mind, it might be worth taking another look at what Chief Justice Beverley McLachlin had to say about this when I asked her about it during a feature interview for Maclean’s late last fall:

Maclean’s: Does it change that balance when new laws tell judges how to rule? We’re thinking of the spate of new federal crime statutes that dictate mandatory minimum penalties.
McLachlin: These are matters that may come before us, mandatory minimums and some of the recent laws, so obviously I’m not going to pronounce in advance. But as a general observation, the more precise the law is—provided it’s within the bounds of the Constitution—the less discretion there is for judges. Beyond that, I’m not sure how much I can say.

Q: But it’s sometimes suggested that the courts have been coddling criminals. Do you think there’s any justification to that criticism?
A: I don’t think so, overall. You have to realize that judges under the Criminal Code have to take into account not only retribution. In fact, they have to look at rehabilitation. They’re directed to. They have to look at a number of factors in sentencing. And sometimes the perspective from the person who’s making the speech about how judges are too soft is simply one of, this conduct deserved more retribution. It’s easy to understand that someone who’s looking at the penal process only through the lens of retribution may come up with a view that’s different than a judge, who is required by the Criminal Code to look at three other factors that may sometimes cut the other way.

Q: So light sentences shouldn’t be a concern?
A: I’m confident, by and large, that the judges of Canada are applying the sentencing provisions of the Criminal Code in a responsible manner. The courts of appeal throughout this country hear many sentence appeals where the Crown and the accused argue about what’s the appropriate sentence. This is a process that’s carried on within the parameters of what the Criminal Code requires, and I’m confident it’s working properly.

Given that assertion from the highest level that the courts aren’t actually soft on crime, you’d think that by now the Conservatives would have assembled evidence to the contrary. But so far, nothing. It’s not like they haven’t been prodded. When I pressed Nicholson’s office to justify imposing more mandatory minimums penalties for a story a couple of years ago, his staff produced a short memo with his bland observation: “In our opinion, the studies are inconclusive particularly with respect to the main debate: do MMPs deter crime?”

Yet MMPs remain a key thrust—arguably the key thrust—of the reforms. Why? Perhaps we won’t hear an attempt at a coherent argument until the matter ends up, as McLachlin seems to expect, at the Supreme Court. Until then, you can always amuse yourself by reading the old studies archived on the Justice Canada website that pre-date the Conservatives’ coming to power in 2006. For example, there’s this 2005 report entitled Mandatory Sentences of Imprisonment in Common Law Jurisdictions: Some Representative Models, which includes what turned out to be a heck of an inaccurate prediction, at least with respect to Canada:

It would be overstating the case to say that the pendulum has swung away from mandatory sentencing to a model of sentencing that privileges judicial discretion. However, it is clear that public and legislative interest in mandatory sentencing laws has declined, and is likely to continue to decline in the near future. Although the public supports tough sentencing measures for violent offenders, the experience with mandatory sentencing legislation in a number of countries has shown that these laws do little to promote public confidence in the sentencing process.



Debating justice reform: maybe it’ll have to happen in court

  1. Hmmmm….JMHO but enforcing MMP and restricting the use of ‘house arrest’ is their way of getting the pendulum to swing to concern for the victim rather than the perp.

    A good example are the new drinking and driving laws here in B.C.   At first everyone was screaming about civil rights – then the stats came out that the number of deaths had been cut in half.

    • “A more thoughtful debate might include a discussion about how to identify that minority of convicted criminals most likely to reoffend, rather than lengthening time behind bars for broad categories of prisoners. It might seek to first establish a clear understanding of what sorts of sentences judges are actually handing down, before prescribing mandatory minimums as an all-purpose solution. As it stands, Canadians are hearing plenty of the tough-on-crime rhetoric they clearly crave, but not much about evidence-based policy thinking to back it up”
      JG – Macleans

      Pretty well sums it up for me – lets deal better with the 10% or so of those who do reoffend. The present govt’s solution is simply ludicrous – essentially lock everyone up longer, that way we can guarantee the public will be safer – as Neil Boyd says, it’s not tough on crime; it’s stupid on crime. It’s inherently unjust. Your rights as a victim shouldn’t be used as an excuse to unfairly target the 90% of prisioners who do not reoffend.
      I don’t know all the ins and outs of the new BC laws as i’m no longer a full time resident, but if the results are being obtained in the similar manner ie., treating me as a criminal after i’ve had one beer with my lunch in exactly the same mannner as someone who’s weaving down the highway, then i object to that too.Although it seems a sacrifice worth making.  In the BC it can be argued that some of the rights of the citizens are being unfairly sacrificed in a good cause that it is very hard to achieve in any other way then through a zero tolerance policy – indeed there are other options, take a taxi etc. But the two cases aren’t analogous at all; locking evryone up for a little longer may seem a reasonable price to pay for public safey to you, it doesn’t to me – not when there are other ways to achieve the same results as JG argues above.

      • If they had a gizmo that would identify the re-offenders we would not need to be making changes.  It is all about consequences – the Vancouver Stanley Cup riot will be an interesting case.  Will the ones that turned themselves in be treated differently than the ones that did not?  

        You might find this interesting – wonder if Neil Boyd read it.

        “As strange as it sounds, those who have been convicted of a criminal activity voted in large numbers for the “tough-on-crime” Harper Conservatives in the last election.

        A story in the Ottawa Citizen reported more than 17,000 incarcerated citizens cast ballots for the May 2 election, and of those 46 per cent voted for the Conservatives, 29 per cent for the Liberals and just 15 per cent for the New Democrats.”


        Here is what the criminals think of us.

        “I arrested a guy who has been in prison in seven different countries, and he told me, ‘I like Canada. If I get caught here, you have the nicest prisons.’”


        • I could draw a number of inferences from that OC quote.

          a] The education standards in jail are awful
          and most criminals aren’t too bright to begin with anyway.
          b] Most criminals are conservatives.
          d] Many consevatives are criminals.
          e] You’re right,there aren’t enough cons/criminals in jail yet…lock em all up!!

          Honestly what does that say? Criminals love the tough guy shtick. If you’d done a similar survey during the time Chretien or Trudeau was PM i’m prettty sure they’d have collared most of the vote.

  2. McLachlin opened the door to a constitutional challenge against mandatory minimums in her reasons in R. v. Ferguson. Broadening the scope of offences that have mandatory minimums opens the door for more challenges that a minimum sentence violates s. 12 of the charter in the circumstances. If that were the case, Ferguson decided the remedy would be to strike out the offending provision under s. 52 of the constitution unless it’s saved under s. 1 of the Charter.

    • Please explain these sections of the charter and their relationship in this issue.

      Thank you. I would appreciate that.

      • Section 12 – Freedom from Cruel and Unusual treatment or punishment. It was found in R. v. Smith that this section is violated where a sentence is grossly out of proportion with the offence committed.

        Section 52 – Declares that the constitution is the supreme law of Canada and any law that is inconsistent with the provisions of the constitution is of no force and effect to the extent of the inconsistency.

        Section 1 – Reasonable Limits clause. A law does not violate the charter (and hence, is not subject to being voided by s. 52) where it is demonstrated that it represents a reasonable and justifiable limit on the right in a free and democratic society. 

  3. Like John Geddes previous post on this topic, I find it offensive that the government is offering up this drek as an excuse for reasoned policy. Someone tell the Big Blue Mean Machine that the election is over, time to figure out how to make policy not PR. It isn’t what you say anymore and how it affects the polls, you are the government now, you are expected to do things (and have good reasons, supported by evidence, for doing them).  

    That being said I do echo other people who have noticed that the NDP is a little light on their opposition to these omnibus crime bills … the last one passed with “case management for the judge” which, if you read the reports about this is open to all sorts of abuses and intimidation of defence counsel by the trial judge. Please NDP, do us proud and object a little (a lot, lot, lot ?) stronger to these Big Brother-ish boorish tendencies emanating from the Justice Department … We need you … 

    (Oh ya, Gliberals, I don’t want to hear nothing from you … you and your cronyism wrecked everything, including the justice system and yourselves, so no opportunistic pouncing please, I’ll hear your points on remedying the situation once you acknowledge your responsibility for creating it, and I am looking at you Irwin Colter, I am looking at you …)

  4. Has anyone compared the current sentence averages from a court for a crime of say homicide to the sentence outlines for something like copy write violation?

  5. This from fridays Vcr Sun – perfect example of “soft” judges.   Even with the psychiatric reports saying he was at high risk to re-offend, he gets two years for cutting a guys throat ear to ear,   And people wonder why the tough on crime is getting so much support.

    “A Vancouver banker who had his throat slashed by a stranger during the 2010 Olympics says he is devastated his attacker got sentenced to just two years in jail Friday.

    Lee Reynolds says he thought he was going to die as he held the open wound on his neck closed after Christopher Hurtado slit it with box-cutters on Feb. 20, 2010.

    Reynolds, a police officer in his native South Africa, was downtown on Granville Street enjoying the
    Olympic spirit when he saw Hurtado yelling obscenities at two young women.

    He asked Hurtado to calm down. A few words were exchanged and Hurtado, 24, walked away.
    Minutes later, Hurtado returned with the weapon he had left with a doorman at a nearby club and grabbed Reynolds from behind, cutting his throat from ear to ear.

    Reynolds’ friends chased Hurtado down. He was originally charged with attempted murder, but pleaded guilty to aggravated assault.

    Crown prosecutor Joanne Verrier asked for a sentence of between 10 and 12 years, citing Hurtado’s history of violence and the viciousness of the assault which could have killed Reynolds.

    Defence lawyer Glen Lee said a five-year-term was more appropriate because Hurtado was sincerely remorseful with good prospects for the future.

    Vancouver Provincial Court Judge Frances Howard sentenced Hurtado to a two-year jail term, followed by two years probation.

    She also credited Hurtado with double-time served for the 19 months he spent in pre-trial jail, saying the total term equals five years and two months.

    Howard noted that Hurtado had stabbed someone in 2002 while he collected a drug debt. She also mentioned a 2007 charge for holding a knife to his brother’s throat. But she said it was shortly after Hurtado’s dad was murdered in El Salvador and the young man was traumatized. He got a conditional discharge.

    Howard also quoted psychiatric reports that said Hurtado was a high risk to reoffend violently because he was immersed in a criminal lifestyle. He has admitted to working in the drug trade.

    Hurtado is one of the last Canadian criminals to get a two-for-one pretrial credit. It was eliminated on Feb. 22, 2010 — the day after he was charged.”


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