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Why not trust judges on “house arrest” sentences?


 

Back in the fall of 2007, two very drunk men, who had previously been romantically involved, were arguing outside a Winnipeg bar. One shoved the other, who fell and hit his head on the pavement. Lyle Walker, 35, was reportedly able to stand up, but died a few days later from the injury. When the man who had pushed him went to trial, his lawyer and the Crown prosecutor agreed he shouldn’t go to prison. The judge accepted their joint recommendation, and Jeffrey James Bear, then 33, pleaded guilty to manslaughter and received a 15-month conditional sentence.

That meant he would be allowed to serve his time, with restrictions, out in the community instead of behind bars.  It was an extremely unusual case—the vast majority of “house arrest” sentences are handed out for much more minor offences. Still, in tabling their sprawling Safe Streets and Communities Act today, the Conservative government highlighted the supposed need to outlaw conditional sentences for crimes that carry a maximum sentence of 14 years to life, including manslaughter, aggravated assault and arson, and crimes that carry maximum of 10 years, when that crime involves bodily harm, drug dealing or the use of weapons.

That probably sounds about right to most people: serious time for serious crime. But, then, most people, reading the word “manslaughter,” won’t be conjuring up the sordid facts of a drunken squabble that turns tragic. A judge, however, must consider such wretched details. That’s why we have them. Or are you among those who suspect they are generally too prone to leniency? Hey, sometimes it happens. In 2008, for example, a lower court judge in Ottawa gave conditional sentences to a father and son who tried to burn down their tanning salon for the insurance money. But the Ontario Court of Appeal overturned that sentence, ruling that the “grave and reprehensible” crime of arson demands incarceration. And that’s why we have appeal court judges.

There is no data that I’ve seen exposing a pattern of soft sentences, conditional or otherwise, handed down by Canadian judges for heinous crimes. For the odd case of coddling, there are always appeals. I have in the past, and again today, asked the Justice Department to provide details on sentencing patterns that would back up the Conservative government’s insistence on limiting the discretion of judges. I’m interested particularly in the facts that convince them judges must be stopped from sentencing dangerous criminals to mere house arrest. So far, nothing. Rest assured, though, I’ll post on it when Justice Minister Rob Nicholson’s department passes along something substantial.

When the government has raised specific points in this area, I’ve tried to follow up on them. Notably, Stockwell Day has claimed (both when he was in government and again yesterday on CBC’s Power & Politics as a Conservative commentator) that thugs convicted in violent home invasions often get off with house arrest. But his office was unable to support his claim when he was a cabinet minister, and he hasn’t yet gotten back to me after I emailed him today.

Here’s what I have discovered (and posted on before) about home invasions: mounting outrage over this frightening sort of crime in the late 1990s led to stiffer sentences, and to the Liberal government of the day amending the Criminal Code in 2002 to make home invasion an aggravating factor that judges must take into account when hand down sentences for related crimes like robbery. In 2006, an Ontario appeal decision surveyed the cases law and found that the “gamut of sentencing dispositions” in home invasion convictions ranged from “as low as four or five years, to as high as eleven to thirteen years.”

And that means in a violent home invasion conviction, house arrest  has not even been in the realm of possibility. Under a 1996 federal law, judges can only use conditional sentencing as an alternative to a prison sentence of less than two years. If the appropriate prison sentence for the crime would be longer—as it would certainly be in a violent home invasion—then a conditional sentence  would not be allowed even if a judge, for some strange reason, was so inclined.  This is equally true for any serious crimes for which the usual prison sentence would be longer than two years.

In other words, the new restrictions on the use of house arrest aren’t going to make much a difference in the way courts typically deal with really frightening crimes. Serious jail time for these offences is already standard, except in outlier cases like that Winnipeg manslaughter. So the big change, according to defence lawyers I spoke with today, will come in the way judges deal with the less shocking offences for which the Tories will also forbid them from opting to hand down conditional sentences. These include fraud over $5,000, and a raft of offences involving selling, importing or producing drugs.

I have no details on how judges currently tend to exercise their discretion to impose conditional sentences for these somewhat more mundane crimes. The less alarming the crime and less hardened the criminal, I would guess, the more often they decide house arrest makes sense. If there is evidence that judges don’t use the power judiciously, the government hasn’t yet bothered to provide it.

 

 


 

Why not trust judges on “house arrest” sentences?

  1. Nicholson never feels the need to prove anything.;  His recurring mantra is ‘sending a message’.  He seems to assume criminals pour over sentencing guidelines before choosing the crimes they commit.

  2. I think you’ll be waiting a LOOOONG time for the government to produce evidence that their crime policies make any sense.  Your request for said evidence was probably the first time it had even occurred to the Tories that they should maybe base their crime policies on events and circumstances that are actually occurring in the real world.

    • No, it isn’t.  Remember, he was up there not long ago and said precisely that they don’t base their policies on the latest statistics, but on what fearful Canadians tell them.

      So, I need a bunch of you to start telling the CPC that we *need* Tony Clement shot for our safety.

  3. When you think every crime, no matter what it is, below murder should involve the lash, and anything above that requires a tree, a horse and a rope…..all else seems bleeding-heart librul.

  4. Well, that was a fine article based on facts.  What a waste of time!

    • Indeed. An unfortunate irony.

  5. So, out with common law, in with the civil code?

  6. the media is to blame for ALL of this. this government would not be in power if you had not helped them. you. yes you. all of you. we are sick to death of you, and we are going to find the cure.

    • The media is just a mirror of society. I say put the blame where it belongs: with the voters and the sycophants we let run the country.

      If everyone who could vote, did vote, and if everyone took responsibility for that vote by informing themselves, we wouldn’t have governments like this. It’s not like the information isn’t just sitting here waiting to be accessed.

      At the end of the day we only have ourselves to blame collectively, and frankly, the media can’t sell what we aren’t prepared to buy.

  7. Thank you John Geddes for this well researched and thoughtful piece.

    We can all look back at it a decade from now and agree how right you were.

    And unfortunately that’s about all we can do with it.

    I don’t want to generalize too much since I know it’s not entirely fair, but sometimes I wonder if hard right conservatives realize how fearful and hateful this makes them look?

    And I mean that honestly. During a time when crime has been dropping for nearly 25 years, and without any reason to believe that judges aren’t doing a good job, somehow they’ve scared themselves into building a gulag.

    Maybe it’s the negative versus positive worldview thing that is really the difference between cons and libs, as it oftens seems to me that hard-left libs are almost naive in their opinions even while the cons seem to trust nothing and no one.

    As with all things in life I think balance is best, but what we have here is nothing like balance.

    • I think it’s the other way around. Cons seem to trust far too much that life is fair, that bad things don’t happen to good people unless it’s caused by another bad person.  So when bad things happen, it’s somebody’s fault and that somebody must be punished — because that’s what’s fair.

      And as for me, I’m more Liberal because I’m a pessimist. I know that good people will do bad things if times get desperate, and I want there to be consideration for them — not because I care about them, but in case I wind up in that situation.

      I want better welfare not because I care about my fellow man, but because I don’t want there to be desperate people who might mug me.

      I don’t want minimum sentences not because I actually worry about grandma being sent to prison, but because our prisons are nothing more than violence training camps and we’d be well served by using them as little as humanly possible.

      • Interesting, though I’m not sure whether I agree that you’re actually being pessimistic and therefore an outlier from my hypothesis.

        Bear with me a moment:

        Seems to me that cons aren’t trusting that life IS fair, but that it should be and isn’t. So they try to MAKE it fair, and in doing so fail to recognize that it isn’t a black and white situation with black and white answers.

        Meanwhile, you seem to believe that treating people fairly will result in fair treatment of yourself. That’s an optomistic leap of faith, given the ephemeral nature of fairness.

        A con knows for sure that if a man is in prison, he can’t be robbed by that person. It’s an absolute, even though it ignores the bigger implications.

        Meanwhile, as a lib, you have no hard and fast assurance that fair treatment really will result in fair treatment of yourself. It’s an ideal that requires faith/optomism.

        I hate to break it to you, but it appears to me that you are in fact an optomist. ;) LOL

        Besides, keep in mind I was modelling the extreme ends of the spectrum, when in fact most fall in the middle with a mixture of beliefs.

  8. Oh, boohoo for the poor criminals.

    What a wad of Liberal BS.

    • You mean like the grandmother who sent her friend dealing with arthritis 4 grams of pot in the mail?  That’s trafficking and the new law means grandma gets to go to jail for a minimum of one year. Period.

      I would add that I’d hope it’d happen to your grandmother, but I expect the lady has more than enough troubles already.

      • Why didn’t her friend get a perscription?

        It’s actually quite easy and perfectly legal. No need to break the law.

        • The question of a what a ‘perscription’ is aside (I know, probably a typo, but coming from a precious metals cultist guy who self-presents as Yosemite Sam, ya gotta go there) it is extremely difficult to get a prescription for medical marijuana. The great majority of physicians won’t so prescribe (for many reasons: ethics, professional liability and yes, medical efficacy among them), thus creating the unfortunate circumstances where you throw gramma in the slamma.

        • Quite easy? Really? Perhaps that depends where you live.

    • You know, just because you’re a Turd doesn’t mean you have to live up to the name.

      I know you love the attention, but really, are you a double agent in disguise? LOL

      • Someone has to cause some drama on these boards besides OE1. Although I admit, trying to keep pace with her can prove daunting, she is truely a master at trolling.

  9. I remember when the conditional sentencing issue came before Senate committee a few years ago, somebody’s package referred to the results of a survey – I believe it was performed by the Canadian Centre for Justice Statistics, but it might have been part of the CBA submissions.

    Basically what they did was they gave people a crime and a sentence and ask if it was fair. People overwhelmingly said the sentence should have been higher. They then gave factual background on a crime committed (i.e. a battered wife kills her abuser, a man pushes his former boyfriend and causes his death) and a sentence. With the background, people overwhelmingly said the sentence was fair or even that it was too harsh.

    I agree that judges, who are apprised of both the facts and the law, take sentencing seriously and can be trusted to handle these matters. As with anything, there will be times when not everyone will agree, but as you say that’s why we have appeals. If we straightjacket judges with minimum sentences, there will be no discretion and no jurisdiction for appeal where the one size fits all sentence doesn’t fit.

    There’s also an economic consideration that I know has been raised but is rarely considered. That’s the fact that conditional sentencing is a useful tool for plea-bargaining. In cases where even the crown considers conditional sentencing to be an option, it’s often something that can be used to avoid the (massive) expense of a full trial. A very high percentage of criminal cases are resolved when an accused agrees to plead guilty because the crown will agree to recommend a lesser sentence. Take this power away from crowns, and accused persons will have very little reason to not take their shot in court and test the crown’s case. You’ll see more and more cases go to trial.

    • Thanks for the sanity.

  10. Don’t know if this is what I saw before, but the public’s opinion on conditional sentencing (and the tendency to increase support for conditional sentencing where there is knowlege of the facts of the offence) is considered in some detail in this Justice Department report:

    http://www.justice.gc.ca/eng/pi/rs/rep-rap/2000/rr00_6/p4.html

  11. Of course, the really funny thing about this is that it will probably result in lighter sentences over-all.

    Defence lawyers, after all, tend to argue for the lightest sentence they can expect to get for their clients. Before the minimum sentencing rules came into play, they were guided as to what to expect by precedent. Precedent which, unless there were exceptional circumstances involved, tended to be higher, sometimes much higher, than the minimums which have been written down.

    Now they’ve got a minimum sentence defined by law which is lower than precedent, so guess which they’re going to argue for? And since codified law trumps precedent, I wouldn’t doubt that many judges would feel compelled to agree.

    • Going even further as regards the possibility of lower sentences…

      When a judge is asked to pass a sentence that they might have considered appropriate for conditional sentence, they are now faced with a rather stark choice:

      They can impose the minimum jail term, but other options remain – suspended sentence, conditional or absolute discharge.

      I hope the CCJS keeps track of this – it will be interesting to see if these sentencing options (particularly conditional discharge) are employed more broadly after minimum sentences become the norm in the Criminal Code or if it already has been for those offences that have already had the conditional sentencing option removed.

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