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UPDATED: The chief justice on whether judges coddle criminals


 

[UPDATED BELOW]

Chief Justice Beverly McLachlin isn’t given to casual remarks about matters of law and order, and she’s cautious about politically sensitive subjects. In her interview with Maclean’s (in this week’s issue and here), she seemed understandably reluctant to say much about the federal government’s push to imposing mandatory minimum penalties for a raft of offences. McLachlin deflected our first question on the topic, on grounds that issues surrounding the new minimums are likely to come before her court.

However, asked a follow-up question on whether Canadian judges are, by and large, imposing appropriate sentences, she defended them. It’s the sort of thing she needs to know about, as chair of the Canadian Judicial Council, which has authority over all federally appointed judges. Her main point: courts sentence criminals appropriately, keeping in mind that, unlike their self-described tough-on-crime critics, judges must under the Criminal Code consider factors other than retribution, including rehabilitation. And McLachlin made a point of noting that if a particular sentence looks too soft, Crown prosecutors can always appeal, and often do.

I’ve written about the Conservatives’ enthusiasm for mandatory minimums before. On several occasions, I’ve asked the Justice and Public Safety ministers’ press officials to provide information on any patterns of light sentencing that the government find so egregious that dictating sterner penalties is the only solution. So far, they have not offered any such analysis. This leaves us in the dark about exactly why the government feels it needs to direct judges on sentencing. In some cases, the minimum jail terms proposed are downright baffling—at least two years for major fraud, for example, even though the normal sentence is already three to five years.

Without any analysis of sentencing to go on, we’re left with nothing but anecdotes and impressions. These have proven highly suspect. Treasury Board Stockwell Day, for instance, spoke in detail during a news conference last summer about how repeat, violent offenders often got off with no jail time under the Liberals, particularly thugs who broke into the homes of senior citizens and beat them up.

Day painted a disturbing picture. But when I asked his officials for background on the judicial outrages he so vividly described—cases, reports, anything at all—they could provide nothing. Shunted along to the Justice and Public Safety ministers offices, I discovered they, too, couldn’t point to examples that support Day’s remarks. In fact, as I discovered when I looked into the question, Canadian judges typically hand down sentences of eight to 13 years in for violent home invasions, and prison time has been getting longer in recent years.

It’s entirely possible, of course, that judges have been systematically handing down sentences for some crimes that Canadians might find too lenient. The government simply hasn’t bothered to make that case. Instead, the Conservatives seem to be using mandatory minimums mainly as an easy way of signaling their outrage.

Declaring a desire for longer prison terms is lighter lifting for any politician than, say, the slog of developing credible strategies for actually combating crime, or addressing its roots—you know, poverty, inadequate schools, lousy services in run-down neighbourhoods, the mere mention of which consigns one to being written off as a hopeless softy.

Yet these are the factors that spring to mind when you read the Criminal Code’s “Purpose and Principles of Sentencing” section. It spells out the need “to denounce unlawful conduct” and “deter the offender and other persons.” But, as McLachlin alluded, the code also affirms the aims of “rehabilitating” and instilling “a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.”

UPDATE:

Reading some of the comments on this post, I thought it might be helpful to offer a bit of background on McLachlin’s approach to criminal law cases. Here’s what Philip Slayton wrote in Maclean’s last year in an article marking her 10th anniversary as chief justice:

“Criminal law? Here, commentators think they see a trend to favour the Crown and the police, rather than the accused. Queen’s University law professor Donald Stuart was reported as saying at the June CBA conference that a law-and-order bias has crept into recent Supreme Court Charter decisions.”

I mention this since it seems some readers imagine that McLachlin and her court tend to be permissive on crime. That apparently isn’t the conventional wisdom among close watchers of the Supreme Court of Canada.

Sorting out her bent on crime strikes me as interesting, but not the core issue here. That would be whether or not the government has provided a convincing argument to support its view that mandatory minimums are needed for many different crimes.

I don’t see how they can make that policy case without assembling data about the sentences that judges have been handing down for those crimes, showing that the prison terms are too short. Again, as I said above, it’s entirely possible there might be crimes for which judges are too lenient. But where’s the research from Justice Canada to make that case?

And one final observation. When we’re debating sentences, we need to keep in mind the fact that mandatory minimums are mostly imposed for very serious offences—gun crimes, major fraud, human trafficking, and the like. But public outrage and police frustration are more often associated with chronic offenders, who tend to commit a long series of less shocking property crimes—shoplifting, small-time drug dealing, breaking into cars.

It’s notoriously difficult to figure out what to do with repeat criminals, often drug addicts, who don’t graduate to major crime. But a lot of work on this has been done in British Columbia. The Vancouver Police Department reports that significant progress has come from smarter police work and closer cooperation with Crown prosecutors:

“In 2009, the VPD increased the number of targeted enforcement investigations on the most prolific chronic offenders. To complement these efforts, great strides were taken to further increase sentences and pre-trial custody for property crime offenders.”

This seems to me to be a big part of the solution to public disenchantment with the way criminals are punished. On the other hand, it’s not easy to encapsulate pragmatic new police strategies in a slogan, or to claim credit in the political sphere for that hard work.



 

UPDATED: The chief justice on whether judges coddle criminals

  1. It takes a very brave politician to take a position against criminals, it being so unpopular and all.

  2. The Conservative cabinet does not care if prison sentences are longer or criminals not rehabilitated when they come out. They'll be collecting their government pension by then and the problem will belong to someone else.

  3. "Without any analysis of sentencing to go on, we're left with nothing but anecdotes and impressions. These have proven highly suspect."
    And yet, in naming Quebec the most corrupt province, you seem to think anecdotes and impressions are just fine.

    • We are in fact trying to figure out how to send Quebec to prison for at least 14 years.

      • C'mon now. With softy liberal judges like McLachlin, Quebec will get off with a slap on the wrist.

        • Not to try to bring the conversation back to the point of the story or anything, but got any evidence to back up that statement?

          • Well, anecdotes. They count. Plus, just a gut feeling.

          • Anecdotes do count, for something, yes. But not a ton. And in my experience, when people complain about the Supreme Court, or a specific Supreme Court judge, they are only looking at anecdotes. And even in the anecdotes, they are looking at the final decision and not the reasoning (understandable when the decisions go on for so long – actually one of McLachlin's personal bugaboos: she thinks they would be more accessible and better and clearer if shorter and more to the point.).

            I remember reading a stat one time that McLachlin's court (i.e. since she has been Chief) rejects criminal appeals by the accused at a rate of something like 97%. (It was a newspaper article and I've tried to find it since without luck unfortunately, so you'll have to believe me or not.) That to me sounds somewhere between what I would expect and high. I think the same article pointed out that it was about 1-2% higher than the prior Chief.

            I happen to think she will go down in history as one of our best, most solid, rigorous thinking justices.

          • An important thing to remember: the plural of 'anecdote' is not 'data'.

          • For the sake of clarity… if it wasn't obvious that I was being sarcastic with the 'lefty judges' crack, I was… same with the follow-up. It's hard to convey comic (?) irony sometimes.

          • Gotcha. Though McLachlin has been very wrongly labelled a far lefty by unknowing or ignorant right wing idiots like Ezra Levant and Mark Steyn and others when she is far more than anything on any simplistic right-left political spectrum. Folks like that are results oriented in their judicial analysis: they want a certain result, law and facts and circumstances be damned, and if they don't get that, you must be socialist lefty activist judge.

            I'd say her criminal cases and free speech cases would make her seem like a right wing libertarian if that wasn't just as moronic a false pigeon-holing. She rigorously applies the law including the Constitution, political spectrums be damned.

            I think the Supremes don't do enough to defend themselves, understandably, and there are not enough others or other places to actually learn about what they actually do. Other than the occasional controversial issue/decision, when is the last time you read about any of their decisions in the media or even on blogs, yet they decide hundreds of cases.

          • From personal experience, that 97% number seems about right. However, consider that there are only three ways an accused can appeal their case to the Supreme Court:
            1. If a judge of the Court of Appeal dissents
            2. If the Court of Appeal overturns an acquittal and substitutes conviction
            3. If the Supreme Court grants leave
            In the first 2 cases, you have judges disagreeing, and in the third, the Supreme Court has agreed that there is an issue of national importance to be decided. Given this, the ratio should be closer to 50-50. The slam-dunk cases get weeded out well before the Supreme Court hears them.

      • Serving the usual one third, plus the two for one credit, Quebec will be out by Christmas. Course they'll be fully rehabilitated.

  4. Oh yes, nothing but anecdotes. No truth whatsoever. Just keep moving – nothing to see here…
    http://www.cbc.ca/canada/calgary/story/2010/07/15

    "Calgary mom who killed daughter gets probation
    A Calgary mother will not serve any jail time for strangling her teenage daughter, a judge ruled Thursday."

    • are you suggesting that John Geddes should do ten minutes of background research before writing an article? don't be a right-wing crank – journalists don't do menial work like that. they pronounce, and since they are hyper-knowledgeable on every subject we should accept their infallibility.

      also, the conservatives are evil, judges are almost as infallible as reporters, and it's not politically correct to jail mothers – if she's a murderer it's no doubt because some evil male pressured her into it. get with the program buddy.

      • No one is saying conservatives are evil or judges are infallible.

        Just that the Conservatives are making it up and this judge has a point.

    • What part of "It's entirely possible, of course, that judges have been systematically handing down sentences for some crimes that Canadians might find too lenient. The government simply hasn't bothered to make that case." was too complicated for you to understand?

      The government is making changes in our laws. The government is not making the case for making changes to our laws despite being asked multiple times. They are clearly making it up as they go.

      Further, while there are lots of cases that – at least on the surface… or in the headline – appear to be miscarriages of justice like your one single example, research does indicate that even there the Conservatives are making it up. As Geddes reports and as I've read numerous times elsewhere, the "minimum" sentence Harper imposes is way way below the average sentence doled out.

      For Harper and other "lock-'em-up/throw-away-the-key" crowd, usually like Harper career politicians and desk jockeys, it is all about the appearance of looking tough and not actually being tough on crime. At best it is being tough on criminals and dumb on crime.

      • What part of that don't I get? I get all of it, thank you very much. But i seriously doubt that you do. You cite Ms. McLachlan's assertion that the "government simply hasn't bothered to make that case" without ever once mentioning that this is HER area of responsibility, and that she hasn't bothered to present evidence to make her case either. You state that the govt. is changing law: so one would presume that requires a more stringent burden of proof. So what on earth do you think the Supreme Court is doing – baking cookies? Everything they do is making law, for heaven's sake.

        So, in a debate where it's alleged that there is no evidence I cite a relevant case. You refute that it's not enough, and may be an exception. But, so far, my comment contains the only hard evidence on either side. How about you come up with some of your own before climbing on mine?

        • Oi, where to start.

          First of all: it is absolutely very definitely not a judges role to advocate for changes in the law. And she properly declines to comment on new legislation, recognizing that a judge's role is to review the legality in the context of a real case. Judges don't make changes to law unless they conflict with other laws, in which case they always explain themselves in their judgment. You are not making your case any stronger that you actually do get it.

          Second: it is Geddes making the argument. Proving you really are so raving you can't read.

          Third: Yes, when the government is proposing to make changes to the law, when they make assertions of fact to back up the changes, yes, I do think it is their responsibility for making the case and for backing it up with facts, real facts. Call me a crazy fan of democracy!

          Fourth: As Geddes points out, as I do, loads of "hard evidence" counters your single anecdotal evidence: the minimum sentences being imposed are way less than the average sentences, and sentences have been getting longer all on their own over the last 10 years or so. Further, Harper has done not one thing to change the requirement that a judge consider rehabilitation.

        • "The government simply hasn't bothered to make that case."…Was not McLachlan's assertion…try reading harder.

      • So, by your logic minimum sentences aren't required when the AVERAGE sentence is higher than that minimum.

        So how about you get back to me the next time you've been held hostage by someone with a knife (or gun, or boxcutter) who couldn't care less if you live or die – but if you have to die it'll be entertaining for him/her to watch) and then when they get off with that proverbial slap on the wrist due to some technicality you let me know how comforted or safe you feel knowing that – for the majority but not for you – the AVERAGE sentence is higher than your perp got.

        For the record, I've been a life-long "leftie" AND a victim of violent crime. Calling a spade a spade should not be a left/right partisan issue.

        • You clearly don't even know a dictionary definition of the word "logic" if that is what you conclude.

          As McLachlin points out and as anyone with any real understanding of the issue knows, the point is that sometimes locking them up and throwing away the key does not serve justice and the point of the Criminal Code section requiring a consideration of broader issues is just that, to consider broader issues.

          Will judges get it wrong? Of course. For a myriad reasons: poor prosecutor, rich defendent, dumb or easily swayed judge, a good actor of an accused, bad facts. But overall, these are rare and getting rarer. So the result of Harper's actions – an attempt to look tough for the sake of looking tough – will result in more miscarriages of justice.

          There is a saying we learn in law school: bad facts make bad laws. The same rule applies in politics.

          Canada incarcerates violent crime for longer sentences more than any other Western nation, including the US. Sentencing is not the problem. But it is an easy political optic.

          • Interesting definition of "logic" you have. So how exactly does "minimum sentence" equal "locking them up and throwing away the key"?

            "First of all: it is absolutely very definitely not a judges role to advocate for changes in the law. And she properly declines to comment on new legislation" .
            And the whole point of the Maclean's articles is what, exactly? Seems to me there'd be little reason for the article if there wasn't a "comment" in there somewhere.

            "Judges don't make changes to law unless they conflict with other laws"
            So you're saying that no judge anywhere will ever cite the Magomadova case as precedent? I seem to remember Flora Macdonald going all they way back to the "constitutional" debates in Parliament to provide evidence that the Supreme Court had "interpreted" law in a way that went against the "spirit" of the original legislation. Thus, in effect "changing" it.

          • The whole point of Geddes' post was Geddes view that, on balance, the Conservative are making it up as they go. The evidence seems to point to no need for minimum sentences since that is not the problem but an easy optic. The Conservatives are not even offering up any evidence to support their decisions. Further more – and this is the part where McLachin's comments are indicative, though they are not comments on the new laws – there is evidence that sentencing has been getting tougher, longer and longer in Canada than anywhere in the Western world.

            I'm not saying Magomadova case won't be used as a precedent. Some criminal attorney with some borderline insane accused will almost assuredly try to use it as a precedent. Bad facts make bad laws means that individual cases with unique sets of facts make bad precedents and, my point, a bad basis for changing laws.

          • I don't know all of the ins and outs of the Magomadova case. There was a 25 page judgement which is quite a long one I think for a criminal case in the first instance. The fact the prosecutors are not appealing the sentence (at least as reported) indicates they don't think there was a huge miscarriage of justice based on their far more intimate understanding of the facts.

            But like I said, judges do screw up and give the wrong sentence. In a jury system, this happens even more. I'm not saying this was a good decision. Just saying that sentencing is not the problem in Canada that leads to higher crimes and raising minimum sentences won't reduce the number of crimes. (In fact there is a good argument that more accused will get let off if the judge has no discretion and thinks 2 years for a first time marijuana charge, for example, is too harsh.)

  5. So asking the biggest coddler of them all if her peers coddle criminals is Macleans journalism at it's finest.
    Sheesh what tools!

  6. "Without any analysis of sentencing to go on, we're left with nothing but anecdotes and impressions. These have proven highly suspect. Treasury Board Stockwell Day, for instance, spoke in detail during a news conference last summer about how repeat, violent offenders often got off with no jail time under the Liberals, particularly thugs who broke into the homes of senior citizens and beat them up."
    http://www.nowtoronto.com/news/story.cfm?content=

    Not exactly the first time Stockwells judegement has been proven to be highly suspect…and this guy's a minister of the crown. Yeesh!

    • Prove to me that dinosaurs and humans didn't exist at the same time. Go on. Prove it!

      • Not worth the effort – just attack the source! NOW Toronto?!? That communist left-wing Toronto mouthpiece is *obviously* a shill for the Liberal party!

        No need to even read the article! It's the sweet life of the right wing…

        • It was a convient link. I lived in AB at the time and i'd imagine the story got some coverage in the Red Deer Advocate.

  7. If you're convicted of a serious, violent crime in Canada and you'll be behind bars longer than in other western countries.

    While it is always a challenge to process facts when they run counter to "conventional wisdom", criminals sentences to jail time in Canada for serious crimes tend to serve more time in prison than do those convicted of similar crimes in the US, UK, Australia, France, etc.

    This is especially true of homicides, where the Canadian sentence of life (with the possibility of parole) results in time served (28.4 years) that is roughly equal to the US sentence of life without parole and nearly 10 years longer than the US sentence of life with the possibility of parole.

    Sentences in Canada for violent crimes began to rise in the mid 1970s and have continued to do so. Most of this time was, of course, under "hug a thug" Liberal governments, but why let facts get in the way of a good stereotype?
    http://www.justice.gc.ca/eng/news-nouv/nr-cp/2005
    http://www.csc-scc.gc.ca/text/rsrch/briefs/b27/b2

    • What do facts and reality have to do with anything?

      This is the Harper Government where Harper not only "makes the rules" he makes his own reality.

      • Wow. By suggesting that people acquaint themselves with the facts of sentencing in Canada rather than base their responses on erroneous (if commonly held) assumptions, you get thumbs down.

        Sad days.

        • No, actually, I was serious. I've bought into the genius that is Harper. I have seen the wisdom in letting him decide what facts are important, if any, and what emotions are important on what issues. I've been wrong all along. That is why he is our political better. The political elites, Harper chief among them, know what is good for us and what is in our best interest. And really, that all he is interested in, protecting us.

          Now excuse me. I have to run out to my next Two Minutes of Hate session.

          I love Big Brother.

    • Again, there is a very real and substantive difference between the AVERAGE sentence, and the MINIMUM sentence.

      You may argue, as Geddes has, that "minimum" sentences are acting as a proxy for "longer" sentences by the CPC. But that isn't what the legislation is proposing. I don't see any issue – in principle – with a minimum sentence for a particular crime. If the recommended sentence is disproportionate to the situation, it seems to me that the issue to be reexamined should be the charge, rather than the sentence.

      • So I've got some kids and a family and a good job and pay my taxes on time and no criminal charge of any kind, and I go up to my cottage with a couple of buddies from high school. We reminisce, have a few beers, its late and some pulls out a doobie. We pass it along. A cop shows up and arrests us.

        Do you think 2 years mandatory minimum sentence serves justice? or do you think justice is better served by allowing the judge some flexibility in this case? Spending two years in jail for smoking a joint would do irreparable harm to me, my job, my career, my family.

        • Again, the issue is with the charge (or the law in this case), not with the minimum sentence. If you have an issue with the law itself – then argue that. After all, you went to law school.

          For that matter, if you know what the law is and decide to flout it regardless, because YOU don't believe it should apply to you (especially knowing that you have "kids and a family and a good job") you've made your own bed… It wasn't the law or the cop who jeopardized your job, career, family, it was your own choice to do so.

          • Nice avoidance. I'm interested in your answer. This is something Harper is doing right now: taking away the flexibility of the judges to render a decision that is in the interest of justice, not merely lock-'em-up-destroy-all-their-lives-and-throw-away-the-key.

            Do you think 2 years mandatory minimum sentence for possession of marijuana serves justice? I'm interested in your view on this.

          • While mandatory minimums have never been shown to reduce either crime or recidivism, they are highly effective in increasing the prison population with low-level and first-time offenders. This is very important if you are a Conservative politician lacking any actual evidence for your justice policies and your donors are interested in building more (possibly privately run) prisons.

            Get with the program, man.

    • Again: "A Calgary mother will not serve any jail time for strangling her teenage daughter, a judge ruled Thursday."

      So if our sentences are that much longer, how much time would that be in "US, UK, Australia, France, etc. "?

      Or should this discussion try to come back to the issue of MINIMUM – not AVERAGE – sentences?

      • She seems borderline insane. There was a 25 page judgement that took into consideration, among other things, the recent murder of her husband while pregant with their son, the devastation of her war-torn home and family, the uprooting to Canada, the diagnosis of muscular dystrophy of her son (for which there would be limited provincial health care support as a new migrant). None of that justifies the killing, but it seems to me to justify the acquittal on second degree murder charges. Was she a threat to others? Was she likely to harm again? The prosecution, which knows the facts far better than you or me, seems to think no or else they would be appealing.

        She is now under strict probation. With minimum sentences what you will get is juries acquitting more often because they can see what you can't. And then she is on her own without any requirement for therapy or probation. More harm and injustice to more people does not make up for the injustice done to that teenage daughter.

        It is a sad sad case and maybe the wrong decision, but bad facts should not lead to bad policies. Punishment is not the only goal of sentencing, in fact it is the least, and anger driven vengeance is not a goal at all.

        • Ted – you've made teriffic arguments on this thread – not sure if you've convinced Guest#2 but well done.

  8. Actually, the 28.4 years is the time spent in CUSTODY, and if you factor in the 2 or 3 times credit for pre-sentencing time in custody, well you get the idea of inflated stats!
    And then there is the parole elegebility which in the U.S. is mostly a non started for early parole, where here it's greatly reduced.
    Those pesky facts!
    Remember liars figure and figures lie!

  9. How is identifying where I learned the saying make the comment "self-serving"???

    And I addressed the original point head-on without any intention of "baiting".

    I'll repeat what I summarized somewhere else in this thread: I don't know all of the ins and outs of the Magomadova case. There was a 25 page judgement which is quite a long one I think for a criminal case in the first instance. The fact the prosecutors are not appealing the sentence (at least as reported) indicates they don't think there was a huge miscarriage of justice based on their far more intimate understanding of the facts.

    But like I said, judges do screw up and give the wrong sentence. In a jury system, this happens even more. I'm not saying this was a good decision. Just saying that sentencing is not the problem in Canada that leads to higher crimes and raising minimum sentences won't reduce the number of crimes. Canada throws violent ciminals in jail for longer terms than anyone else in comparative democracies.

    Changing the laws because of a bad aberrant case will result in more injustices. Bad facts make bad laws and bad policies. Minimum sentence laws are about optics and elections, not crime.

  10. What amazes me is how the conservatives are seen as tough on crime when the liberals brought in many substantive changes between 1993-2005. They were much more productive on the criminal file than the conservatives who really have done little besides setting, or raising, mandatory minimums.

    If you were to look at their records side by side I doubt anyone would doubt the liberals have accomplished more.

    • Conservatives are tough on criminals. Liberals are tough on crime.

      One party uses crime policy to get money and votes. The other party uses crime policy to reduce crime.

  11. and it's still there after all of this time?

  12. the tories are trying to paint the opposition as soft
    they are trying to monger fear in their voter base
    they are trying to impose a US-style, for-profit, inmate-manufacturing industry so that their cop and jailer friends can get rich.

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