If, like me, you make a habit of paying attention to criminal justice sentences, I think you'll find that one of the most interesting aspects is that some judges, despite handing down often ludicrously light sentences, are convinced that they are in fact laying a heavy hand on the criminal. Let's take, as an example, the sentence given to Daniel Sylvester, the killer of Alicia Ross. Now, the sentence given to Sylvester is not "ludicrously light", though I would argue it is relatively lenient, given the circumstances. Regardless, let's compare the sentence he was given to what he could have been given.
Sylvester was convicted of second degree murder. The distinction between "first degree" murder and "second degree" murder is somewhat subtle. In order for a homicide to be classified as murder (see section 229 of the Criminal Code), it must meet one of the following criteria: the killer must have (a) meant to cause the death, (b) meant to cause bodily harm which the killer knew was sufficient to cause death, (c) meant to cause death or sufficient mortal bodily harm and accidentally caused the death, or (d) done something with an unlawful unpurpose that the killer knew or should have known would be likely to cause death, and thereby causes the death.
For a murder to be "first degree" it must either have (see section 234 of the Criminal Code): (a) been planned and deliberate; (b) been a contract killing; (c) been the murder of a peace officer; (d) occurred during a hijacking, kidnapping, hostage-taking or sexual assault; (e) occurred in the course of a pattern of criminal harassment; (f) occurred during a terrorist activity; (g) occurred in the course of using explosives for a criminal organization; or (h) occurred in the course of criminal intimidation.
Other than those categories, all other murders are "second degree".
It's a pretty critical distinction. Pursuant to section 235 of the Criminal Code, anyone convicted of murder is sentenced to "imprisonment for life". That sentence is, of course, virtually a complete lie - almost no one in the Canadian incarceration system serves the rest of their life in prison. For first degree murder, parole ineligibility (i.e., the minimum number of years an inmate must serve before being considered for release on parole) is automatically set at twenty-five years (see section 745(a) of the Criminal Code).
For someone convicted of second degree murder, minimum parole ineligibility is set at ten years (see section 745(c) of the Criminal Code), with a maximum parole ineligibility of twenty-five years.
(Of course, even those advertised minimums are functionally lies - "Inmates incarcerated for second degree murder become eligible for consideration for unescorted temporary absences and day parole three years before their full parole eligibility date." More than 60% of applicants convicted of second degree murder are granted day parole on their first application (see Table 4 at the link; Table 5 is incorrectly labelled in the html version of the report linked to - it actually shows the percentage of day parole applications granted on first and subsequent reviews - which means the numbers climb to between 75% and 85% of all second degree murderers being granted day parole, as shown by Table 5 in the .pdf version of the National Parole Board report). Even before they become eligible for "day parole" (which, remember, is three years before they become eligible for "full parole"), they are eligible for "temporary absence" programs, which means they can, you know, just walk out of prison for a while ("95% of all offenders released on day parole first reentered the community on temporary absence programs").)
So, when dealing with Daniel Sylvester, Justice Edwin Minden had the option of giving Sylvester anywhere between ten and twenty-five years of prison time (which isn't really "prison time" because, as noted above, Sylvester would in all likelihood be wandering around unescorted outside of a prison a good few years before the date indicated by the sentence handed down by the judge). Minden described the killing as "brutal, vicious and sustained". The crime was, in the words of Justice Minden, "heinous", an "act of extreme cruelty". The victim "sustained at least 33 fractures, including most of her ribs and her nose and right cheekbone were broken. Her breastbone was also cracked in the middle and three of her neck vertebrae were also fractured". Even the judge, in the words of the Toronto Star, "doubted [Sylvester] could ever be rehabilitated".
Yikes. So, did Justice Edwin Minden "throw the book", to use the colloquial, at Daniel Sylvester? Don't be absurd - despite the fact that he could have sentenced him to twenty-five years of parole ineligibility, he demurred and gave Sylvester sixteen years, or a little less than half of the mid-point between the minimum of ten years and the maximum of twenty-five years. A nine year gap exists between what Sylvester was given and what he could have gotten. Which raises the question - what exactly would Daniel Sylvester had to have done in order to warrant the full sentence which could have been given to him? What would constitute those nine missing years? Sylvester, remember, attacked his neighbour in a, to reiterate, brutal, vicious and sustained assault, which was an act of "extreme cruelty and callousness". What does our judiciary need to see before they sentence someone to the maximum amount permitted under the law?
Even the judge seems to have at least subconsciously realized his sentence would be slightly ridiculous in light of what Sylvester did - Minden felt the need to "[remind] the court it didn't mean the "prison doors will open" for [Sylvester] on the date of his parole ineligibility" (of course not - they'll in all likelihood open even before the date of his parole ineligibility). And in a nice bit of buck-passing, he informed the court that "it will be up to the National Parole Board to decide if [Sylvester] spends the rest of his natural life locked up in a federal penitentiary". Which is technically correct, but why didn't he see fit to at least delay that day of reckoning by a further nine years (not counting "temporary absences" and "day parole" before the sixteen year mark)? You will often hear the argument from the judiciary that criticism of them is unwarranted because their hands are tied by the laws written for them by the legislature - so why do they consistently refuse to use the tools which are given to them?
