bob tarantino

The Revolt of the Judiciary Continues

Further to this post, another judge (with the nodding approval of Kirk Makin) decides that politics is really where he has the most to contribute:

Defying community anger and Canada's drift toward more punitive, U.S.-style sentencing laws, an Ontario judge has given two aboriginal youths a lenient punishment for burning down a venerable community building.

Mr. Justice John Keast of Superior Court in Sudbury, Ont., said that probation and a strong dose of rehabilitation is better than throwing the boys, aged 12 and 13, into secure custody.

His sweeping condemnation has trained a light on one of the most divisive issues in the Canadian judicial system: growing discontent over the federal Conservatives' harsh sentencing policies.

Judge Keast urged Canadians to wake up to the fact that stiff penalties brutalize society, do nothing to prevent crime and waste staggering amounts of money.

I particularly like the "brutalize society" bit - on this account, crime doesn't "brutalize society", only responding to crime does.  Since one of the talking points for the New Reactionaries of the sentencing push-back is that the government is proceeding without sufficient empirical evidence, perhaps Justice Keast could provide the peer-reviewed empirical evidence undergirding these statements of his:

• locking up the arsonists would “satisfy a certain primal desire for punishment,” but create a pair of hardened criminals
• scant money is put into eliminating the roots of crime: poverty and mistreatment of the aboriginal population. “Canada lags behind most western democratic countries,” he said
• the federal government is shirking its responsibility toward generations of aboriginals who have suffered because of the residential school system
• Canada would do well to emulate Scandinavian countries, which pour money into social programs, rather than responding “with the mantra of jail.”
• most criminals are shaped by poverty and lack of opportunity: “Most of today's serious criminals were once victims.”

"'You're soft on crime,'"

The latest Globe and Mail article shrieking about the impending horrors of tougher crime policies is well worth reading for a variety of reasons (mostly for how you could predict virtually every word of it having known only the identity of the author and who he was quoting - the number of unsupported assertions of (mistaken) fact, unquestioned biases and transcription of quotations from "experts" (rather than interrogating them to determine their validity) is, though typical, nevertheless breathtaking), but this is almost certainly the most important piece of information it contains:

Judges are skilled at devising creative ways to fight back against laws they believe may skew the system. [Mr. Justice David Cole of the Ontario Court of Justice] said the elimination of two-for-one pretrial credit has prompted judges to begin talking openly about forcing trials to be held more quickly. He said Canadian judges may also start compensating by intentionally lowering sentences.  “That appears to have been the experience in other jurisdictions where Draconian sentencing policies have been forced upon the judiciary.”

Justice Cole is to be commended for being (unintentionally?) honest about how judges approach sentencing matters: evidently they (and he) think duly passed legislation is something which is being "forced upon the judiciary" (and is thus to be resisted and subverted) and they will happily ignore binding precedents in order to "intentionally lower[] sentences".

"vitriol, anger and ad hominem sentiment"

Everybody's a critic...

Neil Boyd and I debate the morality and practicality of the faint hope clause over at The Mark.  Mr. Boyd is, shall we say, something less than a fan of your intrepid correspondent.

Don't Call It a Comeback

JJ McCullogh and I had a long discussion about the Supreme Court of Canada, judging and politics - read it here.

Neil Boyd wrote something at The Mark about the elimination of the faint hope clause - something which I felt merited a response, a response which the good folks at The Mark published here.

Great Moments in Canadian Sentencing 07.09.09

Another data point for assessment of the Greenspan-Gardner Hypothesis:

A three-time killer is facing not only a lengthy prison term [sic - ed.], but an order that will ensure authorities keep a close eye on him for a decade after his release.

... he was sentenced Thursday to a further 11 years in prison for his third manslaughter conviction - a penalty jointly recommended by the Crown and defence.

...Raphael stabbed Cadreau four times in the chest and twice in the back. The lethal wound was to the heart.

... Cadreau's death came just six months after Raphael had walked out of court a free man after receiving time served for his second manslaughter. One of two men charged in the crime, he pleaded guilty for his role in the death of a 33-year-old Regina man who was beaten with a beach umbrella. Because Raphael had already spent three years on remand, he was set free after the June 18, 2005, sentencing.

Twenty years earlier, Raphael was sentenced to four years for his first manslaughter. He had stabbed his victim in a bar fight in Edmonton.

It is just so strange how this guy's knives and, er, beach umbrellas keep slipping and hitting other people, innit?

At least (whatever marginal comfort that provides) this one is getting appealed (here):

Bird, 21, was sentenced to 12 years after being convicted of manslaughter, aggravated sexual assault and kidnapping for her role in the killing on April 3, 2005.  Ross found Bird knew of the plan to kidnap and kill a victim, had helped carry out the kidnapping, was armed, had hit Nina with a wrench and had held Nina’s hands down while she was being raped.

(h/t Dawg)

Great Moments in Canadian Sentencing 07.07.09

Maybe when he gets convicted for an eighth time he'll actually be punished?

"The Parliamentary intent is to address ... serious violent offences that involve maximum penalties of 10 years or more and are indictable," Brown ruled as she sentenced Francisco Amaya to nine months house arrest and two years probation.

Amaya, who has prior convictions for seven similar incidents, grabbed a stranger's buttocks inside a grocery store on in February of last year.

Read the story and you'll learn that the judge didn't like the express wording of the statute and decided to divine legislative intent by references to what the Minister of Justice said in some press conferences (presumably - all we know is "Brown said the wording flies in the face of comments made by federal Justice Minister Rob Nicholson when changes to conditional sentence legislation were introduced" - in any event, regardless of when and where the comments were made that's a fairly radical innovation in statutory interpretation).  What is it with judges in this country just willfully ignoring the wording of laws they don't like?

"a bit of a joke"

The execrable Jeffrey Simpson demonstrates again why his paper is the worst in Canada:

Similarly, the ending of “faint hope” clause appeals for murderers and the like is eyewash, since only a handful of such appeals are made every year, and they are invariably turned down.

It's astounding to see a single sentence be so wrong from start to finish.  The "faint hope" clause is Section 745.6 of the Criminal Code of Canada.  It does not apply to "murderers and the like" - it only applies to murderers (well, and those convicted of high treason - of which there have been, so far as I know, two in Canadian history).  The notion that "faint hope" clause appeals are "invariably turned down" is further evidence that Simpson is either a liar, incapable of performing simple mathematical operations or singularly uninformed on the topic about which he is writing.  National Parole Board statistics (see the answer to item 15 here) show that, as of April 30, 2009, of the 174 applications made for "faint hope" early release, early parole was granted in 131 cases.  That's a seventy-five percent (75%) success rate.  How Simpson (and his editors) manage to translate that into such applications being "invariably turned down" is testament to the raw stupidity which informs so much op-ed writing.  Simpson also manages to avoid engaging the question of why the families of murder victims should be put through the agony of the "faint hope" process despite the fact that the criminal has already been convicted and sentenced to life imprisonment.  But such ripples on the pond of serenity don't much trouble the Olympian heights (or is it Stygian depths?) of the scribes at the Globe and Mail.

Most brilliant of all, though, is Simpson's dismissal of proposals like the Conservative's recently announced crime policies because "[a]s almost every criminologist in Canada would attest, the Conservatives' crime policies are mostly illusory".  In other words, bereft of any actual arguments that he himself could wield, Simpson relies on the authority of the technocrats who are in large part responsible for the trend of our violent crime rate looking like this:

Great Moments in Canadian Sentencing 06.25.09

So, let's say, f'rinstance, that tomorrow night you decide, completely out of the blue, to get on the subway and start, stay with me here, randomly stabbing another passenger, until he dies.  What do you think the courts will do to you?  I'm willing to bet you don't think they're going to sentence you to six years in jail:

Ontario Superior Court Justice Eugene Ewaschuk called the slaying a random, unprovoked attack on an unarmed stranger "peacefully riding a TTC subway train, minding his own business."

But in sentencing John Paul Vallon to 10 years – less four years and four months for pre-trial credit – the judge noted that he has no criminal record and a good work history.

Right.  He didn't have a criminal record, but oddly now he does - perhaps the latter fact should trump the former?  Or am I just being wacky again?

I like this part:

In the early hours of April 13, 2007, Vallon, then 26, cut and stabbed Brown more than 14 times as they rode an almost empty eastbound subway car. He exited at Victoria Park station, leaving the 21-year-old victim bleeding on the floor of the subway car.

Brown suffered a fractured skull and breastbone in the attack. But it was a cut to his left thigh that proved fatal, causing him to bleed to death.

The judge blamed Vallon's "stupidity" in carrying a knife. "That's what brought it all on. He got the knife and he was looking for trouble."

Ah.  "Stupidity".  It was merely "stupidity" which caused him to, I don't know - accidentally?, stab someone "more than 14 times".  Not maliciousness, not depravity, nothing so verboten as simply being evil - just "stupidity".  What were the immortal words of Eddie Greenspan?

I am frequently told Canada is soft on crime. I think that is a myth.

Canada is tougher on crime than most people believe, and getting tougher by the day.

Indeed.

"political grandstanding time again"

Eddie Greenspan has taken another opportunity to offer up a hodgepodge of terrible arguments and fatuous reasoning, this time in support of... being more lenient on criminals.  But then you probably could have guessed that last part.

Greenspan is flummoxed by the government's plan to limit the circumstances under which judges can hand out conditional sentences (known in the real world as "house arrest", although even that is a misnomer, because people generally aren't actually restricted to their residence - they can leave to attend work or school). 

As we've seen before, one of Greenspan's stylistic quirks is argument by misdirection: he simply mischaracterizes the point he's arguing against in order to make his own argument appear stronger.  Honesty and good faith are the first requirements for a good debate, and Greenspan elects not to treat with either.  Here's Greenspan on the government's proposal [emphasis added]:

This season's version is Justice Minister Rob Nicholson's proposed legislation that would terminate the use of conditional sentences in many cases.

... The Conservatives' proposal would remove sentencing judges' discretion to impose a conditional sentence, even though the judge -- not Parliament -- is in the best position to determine the proper sentence on a case by case basis.

Those are just flat-out lies (the second more flagrant than the first): the government's proposal ends conditional sentencing for a limited selection of serious crimes: crimes that the Criminal Code prescribes a maximum punishment of 14 years, or crimes for which the maximum punishment is 10 years and involves bodily harm or the use of a weapon.  As an example, the list would include crimes "such as theft over $5,000, auto theft (proposed by Bill C-26 currently before Parliament), breaking and entering and arson are included on the list of indictable offences that will be ineligible for a conditional sentence."  It's telling that Greenspan frames his argument in the abstract, instead of telling us why he thinks people convicted of aggravated assault, or assault causing bodily harm or arson should be able to hang out at home as "punishment".

Let's turn to Greenspan's positive arguments in favour of conditional sentencing.

In fact, a conditional sentence may be as onerous as, or perhaps even more onerous than a jail term, particularly where the offender is forced to take responsibility for his or her actions and make reparations to both the victim and the community, all the while living in the community under tight controls.

That's the sort of statement that could only make sense to someone in the blind thrall of ideology.  Getting to hang out at home ("under conditions") is tough!  But let's even accept it as correct - let's say that hanging out at home really is "even more onerous than a jail term".  Can we at least now admit, if being in your own home and going to work and school is rougher than being in prison, that maybe our prisons have become a little more soft, a little more thug-huggy, a little more cushy, than they ought otherwise be? No? Oh. That's a surprise.  Because the little bit of jiu jitsu that Greenspan attempts is all part of the rhetorical stupidity that goes on in criminal justice thinking: prison is just so awful and inhumane and degrading that we should never send anyone there, except that "keeping" them "at home" under conditional sentencing is potentially even worse, and, suddenly, then, you're at the point where both punishing someone (by putting them in jail) is inhumane and not punishing someone (by letting them hang out at home) is (even more) inhumane, and so, really, why not just drop the whole "punishment" thing and we'll just have them write essays expressing how sorry they are, except if they don't want to then they don't have to?

How is it possible for a conditional sentence to be more onerous than being confined to prison?  It's not, but it's the kind of delusion to which one needs to subscribe in order for most things in the Canadian criminal justice system to make sense.  We keep being told that the criminal justice system in Canada is just one long nightmare of punishment and pain, and yet now we find out that it's actually not so bad, being sent home (well, when you're not busy not being home) is even worse.  And it is worth recalling that what Greenspan is arguing in favour of is conditional sentencing for violent criminals.  We're not talking about people who have stolen a comic book, but people who have committed aggravated assaults and burned down people's homes.  Which alludes to the matter at the heart of it all, and which, of course, Greenspan conveniently ignores: society's just entitlement in punishing, denouncing and exacting retribution on those who commit crime.  Like most of the commentariat when talking about sentencing in Canada, Greenspan prefers to frame the issue in purely instrumental terms: if Criminal A gets a conditional sentence and never commits another crime, then the system has "worked" - which overlooks the fact that Criminal A has never received his desert for the original crime he committed.  Discussions led by the likes of Greenspan have sidelined the issue of what people, particularly violent criminals, deserve when being sentenced.  Paul Tuns did a nice job of articulating the point a few weeks back:

People do not -- or at least should not -- want tougher sentences because they deter crime or otherwise affect the crime rate. They want tougher sentences because criminals should pay a price for their law-breaking, especially for violent crimes. The popular saying among regular folks who don't read editorials in the large dailies is "you do the crime, you do the time." That isn't incarcerating Paul to stop Peter from robbing a store or beating up someone on the street. It means putting Paul behind bars because that is what Paul deserves. It's called just desserts. That is why the crime rate is not a relevant consideration to what a just punishment is; there is no correlation between how many crimes are committed and what a criminal deserves. To take the Ottawa Citizen argument to an extreme, let's say there was zero crime in Canada and out of the blue a person kills his neighbour. Would that killer deserve just a few days in jail? No, that is ludicrous -- he would still deserve a long time in jail (or death) because that is what murderers deserve.

Indeed.  I harp on this point a lot, but only because too many commentators on the matter insist on ignoring it: deterrence is simply one of the reasons for which we punish.

But, of all the pathetic arguments in favour of conditional sentencing, the "it's just so hard on the criminals!" line isn't even the worst one.  This one is:

To the contrary, it is known that offenders who serve their sentences without prison have a much better chance of rehabilitation and reintegration into society.

Read that again.  Slowly.  Okay, read it again.  Has your brain turned to mush yet?  It should.  You know why "offenders who serve their sentences without prison have a much better chance of rehabilitation and reintegration into society"?  Because they've never been separated from society.  There's nothing for the them to reintegrate into - they've been integrated all along.  But that, folks, is the best argument which the pro-lenient sentencing side has.

Next, Greenspan offers up this bit:

Concerns about releasing offenders into society are overblown and exaggerated. There is no denying that some offenders under conditional sentences have committed crimes. But an offender on a conditional sentence is no more likely to re-offend than someone who has served his or her time in jail. To the contrary, it is known that offenders who serve their sentences without prison have a much better chance of rehabilitation and reintegration into society.

Odd.  Nobody has produced any studies which demonstrate what Greenspan is asserting.  In 2006, the Canadian Criminal Justice Association, in its submission to Parliament arguing in favour of increasing the use of conditional sentences, stated "To date, there is no known recidivism data available to evaluate the impact of conditional sentencing."  Nothing that I've been able to find subsequently indicates anything to the contrary.  So, where is Greenspan getting his information from, such that he is able to make those definitive statements quoted?

And here, evidently realizing that he doesn't have any actual arguments to wield, he falls back on a bit of sophistry which amounts to effective arguing in the courtroom, but elsewhere is regarded as feeble.  I'll call it the "but Billy said it" form of reasoning.  When losing a debate, the last refuge of incompetence is not patriotism, but relying on external assertion - "but Billy said it!".  In legal reasoning, because of its institutional nature, arguing by reference to authority is considered not just acceptable, but the most effective form of argument - it's actually acceptable in legal argumentation to say "but these guys over there said this, therefore this is correct".  It's usually gussied up as an appeal to precedent, in the form "the Supreme Court of Canada said X, therefore X is correct and the law of the land".  It's a puerile form of argument, but within the confines of the courtroom, and within the four corners of a judgment, it's necessary and understandable.  As a form of reasoning absent those particular circumstances, it's nonsensical.  Rationality requires examining the substance of the argument, not its source.  But that's all Greenspan has, so he starts waving his hands:

Because I am a criminal defence lawyer, people will think I'm just trying to protect my clients. If you don't want to hear it from me, then at least listen to the Supreme Court of Canada, which has repeatedly upheld the use of conditional sentences and explained their value: "Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence."

It is too simplistic to dismiss conditional sentences as getting off easy. Again, the Supreme Court has said it best: "The stigma of a conditional sentence with house arrest should not be underestimated. Living in the community under strict conditions where fellow residents are well aware of the offender's criminal misconduct can provide ample denunciation in many cases. In certain circumstances, the shame of encountering members of the community may make it even more difficult for the offender to serve his or her sentence in the community than in prison."

Right.  Shorter Eddie Greenspan: not only am I soft on crime - so is the Supreme Court of Canada!  But then we knew that already.

But, fine.  If we're just going to accept, like babies being fed pabulum, the words of the Supreme Court of Canada about conditional sentencing, we should at least take time to look at everything they've said about it.

The quotes which Greenspan provides are taken from a case called R v Proulx.  Let's see what else the Court in Proulx had to say about conditional sentences:

Although a conditional sentence is by statutory definition a sentence of imprisonment, this Court, in R. v. Shropshire, [1995] 4 S.C.R. 227, at para. 21, recognized that there "is a very significant difference between being behind bars and functioning within society while on conditional release". See also Cunningham v. Canada, [1993] 2 S.C.R. 143, at p. 150, per McLachlin J. These comments are equally applicable to the conditional sentence. Indeed, offenders serving a conditional sentence in the community are only partially deprived of their freedom. Even if their liberty is restricted by the conditions attached to their sentence, they are not confined to an institution and they can continue to attend to their normal employment or educational endeavours. They are not deprived of their private life to the same extent. Nor are they subject to a regimented schedule or an institutional diet.

Heck, since we're playing this fun game, howzabout we take a look at who precisely wrote those words?  Let's, in other words, since we're on the merry-go-round of "but Billy said it!", see what Billy actually said.  So - who was the author of the judgment in Proulx? Ah, former Chief Justice Lamer, one of the softest of the soft touches when it came to criminals.  Just for fun, let's take a look at what Lamer was saying a few years later:

in an interview in his Ottawa apartment, [former Chief Justice of Canada Antonio] Lamer said he thinks some judges these days are too lenient and some prisoners, such as drug traffickers, are up for parole too early. "I will candidly say I have been looking at some sentences and I have found they are not what they should be. They should be more severe," said Mr. Lamer. "These words coming from me might surprise some people, but I mean them." To that end, Mr. Lamer said, he agrees with some of the Harper government's tough-on-crime initiatives. [emphasis added]

So, if we're going to indulge in "argument via source", let's really indulge in argument via source.  Odd that Greenspan elected to leave all that stuff out, innit?

One final thing to note about what both Greenspan and the Supreme Court yammer on about when talking about conditional sentencing.  Let's look again at what the Court (and Greenspan) have said:

Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender.

That sounds nice. Regrettably, as we've previously seen, when some members of the judiciary are confronted with a law which runs counter to their instinct to treat criminals leniently, they just, you know, ignore the law.  So, no one should be suprised to learn that the rhetoric about conditional sentences providing an opportunity for "reparation" to be made to the victim and for the criminal to accept responsibility for the conduct are simply that - empty rhetoric.  As the Department of Justice's 2004 report on conditional sentences found, judges (surprisingly!) have little interest in making criminals take responsibility for their crimes in any meaningful way: "Very few reported cases contained conditions that provided acknowledgment of and reparation for the harm done to the victim".  Even better, imposing conditional sentences in crimes of serious violence has the consequence of "increas[ing] the suffering of the crime victim, whatever the benefits for the offender", because victims see their offenders not being punished in any meaningful way, even to the point of having to endure criminals entertaining friends at home while being "punished".  Strange, again, that Greenspan elected not to mention any of these empirical reports about the uselessness (and in some cases positive misfeasance) of conditional sentencing in his little jeremiad.

What we see in Greenspan's column, in the Supreme Court's decisions on the matter (and even, as yesterday, in judicial pronouncements when talking about sentencing, when letting someone out of jail was emphatically described as not letting them out of jail), is the embedding in the very heart of our discourse on crime and sentencing the cancer of a radical untruth: that not punishing is the same as punishing, that being soft is the same (even worse!) as being hard, that things which have not been shown to work actually do work, that up is down, wet is dry, right is wrong.  Worse than the implicit degradation of the suffering of innocent victims which is implicit in the entire conditional sentencing regime is the fact that the soft on crime agenda debases not just language but the ability to engage in rational debate.  Even worse than that is the fact that it undermines public confidence in the system: people aren't so stupid that they don't know when they're being lied to, and the fervent assertions of judges, academics, pundits and criminal defence lawyers that giving someone a slap on the wrist is just as bad, just as effective, just as meaningful, as actually punishing them by putting them in jail, are lies of a profound and debilitating order.

Great Moments in Canadian Sentencing 06.22.09

The Greenspan-Gardner Hypothesis suffers another cruel blow:

A 23-year-old Mississauga woman is getting released from prison just three years into her 10-year sentence for murdering her mother.

I know this isn't a funny story, but this is really just too hysterical for words:

Duncan said to keep the "gifted and intelligent woman with superior intelligence" in prison would be "little more than warehousing" her, something Canada's youth laws oppose.

True.  Or it might be "little more" than punishing her, but I understand that's something that "Canada's youth laws oppose" as well.

She has been accepted at the University of Waterloo for programs in science and engineering with a scholarship for the fall term. For now, she will take courses online using the halfway house computer.

Nice.

The woman, whose identity remains protected by Canada's youth laws, smiled when she heard Duncan's decision.

I'll bet she did, the charmer.

She was the driving force behind their mother's murder and held her head under the bathtub water for four minutes.

True, but she is also a "gifted and intelligent woman with superior intelligence", so she's, I guess, intelligent-squared.  And, really, who are we as a society to hold a "gifted and intelligent woman with superior intelligence" in jail just because one night she happened to, say, kill her mother by drowning her in the bathtub?

This is the best part, though:

But it's important for society to understand she will not be "let out," Duncan said.

No, no, god forbid we misconstrue what's happening as her being "let out" - her freedom to attend university is entirely not a characteristic of somebody who has been "let out".

"She will be under a different form of custody," he said.

Yes, the "not in custody" form of custody.

"She has completed every available program (in prison)," Duncan said. "In respect of her rehabilitation, there is little or nothing left for her and by extension for society."

Right.  What about, say, punishment?  Is there "little or nothing left for her and by extension for society" in that?

She will be going from a cottage-style living environment in prison to a halfway house where she will be under the restrictions of the home but with greater opportunities for rehabilitation and re-integration into society, he said.

Oh, now I get it: she's not being "let out", because she wasn't ever really "in" to begin with - she was hanging out in a "cottage-style living environment".

But the good news never ends!

They will be eligible to apply for full federal parole Oct. 29, 2009 with their mandatory release after serving two-thirds of her sentence on March 11, 2013.

Yay!

Great Moments in Canadian Sentencing 06.15.09

Another blow to the Greenspan-Gardner thesis that Canada is just so darn tough (and getting tougher!) on convicted criminals: a convicted murderer has walked away from "imprisonment" which is so laughably soft-touch that not even the guards can figure out why he bothered to escape.

He slept in a bedroom, not a cell, and the ground outside his prison was free of walls and guard towers – in fact, there wasn't even a fence.

So why would Andrew John Wood, convicted of murder in the execution-style shooting death of a Toronto man in 1989, want to escape?

... A Frontenac employee who asked not to be named said the reason for the escape was not obvious to her.

"I really don't know why he left."

"simply do not buy it"

I have to admit I'm becoming a keen anticipator of Edward Greenspan's columns written for the Sun chain of newspapers.  Because they're so good, you ask?  No, because they are so painfully bad (his installment discussing the finer points of this newfangled thinger called "the internet" is for the ages).  His latest column, soaringly entitled "Let criminals write" is absolutely glorious in its awfulness.  The arguments presented are so poor he actually manages to refute every single one of his own arguments by the time he gets to the end of the column.  It is, and I speak with no hyperbole whatsoever, a masterwork.

I am frequently told Canada is soft on crime. I think that is a myth.

Canada is tougher on crime than most people believe, and getting tougher by the day. Just consider the response to the news that convicted murderer Colin Thatcher is planning to publish a book later this year about his infamous case.

Tougher and tougher (by the day no less)!  One has to admire the sheer gall of writing the phrases "Canada is tougher on crime than most people believe" and "Colin Thatcher" within a couple of sentences of each other.  Colin Thatcher, you might recall, was convicted of the first-degree murder of his ex-wife.  Bear that in mind: first-degree murder, supposedly the worst of the worst crimes that can be committed under our legal system, nominally resulting in an automatic "life sentence" with no possibility of parole for a minimum of twenty-five years.  So, as I was saying, Colin Thatcher gets convicted of first-degree murder, and what does the "tougher and tougher" Canadian sado-state do to him?  It houses him in Ferndale, a "prison" complex which accords Thatcher residence in a duplex-style house with a room of his own, a nine-hole golf course on the grounds to sate any desire to swing at little white balls, and room for him to board his pony (seriously.)  I've never committed a crime in my life, and the government doesn't pay for me to play golf every day with my pony nearby; it's an outrage, I tells ya.  Oh, and then Thatcher was given full parole (after previously being accorded day parole) after twenty-two years.  With malicious, gratuitous punishment like that, it's a wonder people have any faith left in the government whatsoever.  But them's were the olden days! you might cry - we're really tough on criminals now.  We sure is!  Like, say, this guy, who was convicted in 2000 of raping an 11-year old girl (after being on statutory release for a previous sexual assault conviction), and who has "a history of violence against 'people he perceives that he has a grievance' as well as those he comes into contact with during the commission of other crimes, such as robberies".  What did the "tougher and tougher" Canadian prison-industrial gulag-complex do to him?  Paroled him the other day.  I digress...

On to the topic at hand, Greenspan's arguments against Saskatchewan's Profits of Criminal Notoriety Act (text of bill can be found here - Download Saskatchewan Bill 94).

Greenspan argument against, the first:

Several provinces already make it illegal to profit from writing or selling the story of a crime, but Morgan said he will consider new legislation "not just with regard to specific items but with regard to all sources of revenue."  Apparently Saskatchewan may want to prohibit convicted criminals from ever having a cent of revenue for the rest of their lives. I am sure many readers would have no problem with that.

Oh ho!  Little bit of misdirection there - "apparently Saskatchewan may want to prohibit convicted criminals from ever having a cent of revenue for the rest of their lives".  Well, no - as anyone who is familiar with similar "Son of Sam"-type legislation in force in other provinces, or anyone who read the Saskatchewan government's press release, or anyone who has read the draft bill, or anyone who understands basic English, could have told you, the Saskatchewan justice minister was referring to all sources of revenue arising from the crime or the recounting of it, such as the sale of memorabilia or the sale of movie rights in the book.  But yes, if it makes your argument easier to make, Mr Greenspan, let's assume the government of Saskatchewan is going to introduce legislation which will prevent convicted criminals from ever earning a dollar in their lives from any source of income whatsoever.  So, first argument against fails due to acute strawman-itis.

Greenspan argument against, the second:

Saskatchewan should not fall for the same mob mentality other provinces have. The publication of accounts of crime should be unfettered in a democratic society that respects freedoms of expression, press and other media communication.

Indeed they should be, and the proposed legislation does absolutely nothing to inhibit any of "freedoms of expression, press and other media communication".  It contains no language whatsoever which prevents anyone, at any time, from writing and/or publishing accounts of crime.  It merely prohibits payment to a convicted (or accused - more on that later) criminal on account of the recounting of their crime.  So, second argument against fails due to... I don't know, sheer obtuseness.

Greenspan argument against, the third:

History has repeatedly demonstrated there are invaluable insights to be gained from the writings of convicted criminals.

Following that sentence, Greenspan provides... no examples whatsoever.  Maybe they're out there.  Mr Greenspan couldn't be bothered to enumerate them.  Third argument fails due to lack of evidence.

Greenspan argument against, the fourth:

And in an era where wrongful convictions are prevalent, we should not discourage people who believe they are innocent from trying to raise funds to plead their case. There would be a major chilling effect upon the wrongfully convicted.

At first glance, this seems like a compelling argument.  But only at first glance.  The main organizations in Canada which advocate on behalf of the wrongfully convicted (the Osgoode Hall Law School Innocence Project and the Association in Defence of the Wrongfully Convicted (both of which are endeavours which deserve greater financial support from both government and public) are both non-profit volunteer organizations - the ability of an individual contesting their conviction to pay is irrelevant (there is no one to pay).  Might there be situations where an individual who has been wrongfully convicted is rejected by both those organizations and yet still wants to mount a contestation of his or her conviction?  Possibly - but since those will inevitably be marginal cases, we would need to balance such marginality against the purposes of the legislation (about which more later).  We should also note that the proposed legislation (in sections 8 and 9) allows for the possibility of a convicted individual to apply for a court order approving a contract for payment in exchange for recounting a crime - meaning someone who is wrongfully convicted could enter into a contract which provides that payment be made to their lawyer, thereby funding their contestation of their conviction.  So, argument the fourth gets about a third of the way there, then gets harried back to the starting line.

Greenspan argument against, the fifth:

The proposed law and existing ones like it are not even necessary. It is important to recognize there is a difference between the proceeds of crime and the proceeds of writing about crime. Convicts are typically required to return the proceeds of their crimes, such as stolen property.

But crime victims and their families can sue the perpetrators for damages. If the victim receives a judgment, then the victim can seek to collect money from the perpetrator until the judgment is satisfied, regardless of whether the perpetrator's income is from writing fact, fiction or just from plain working.

It is thus an irony of the proposed Saskatchewan law that under the current status quo, victims are now more likely to have a chance of receiving compensation from their attackers than they would be if the law passes and perpetrators lose all financial incentives to tell their tales.

Here is where Greenspan's argument starts getting really wonky.  The argument, as near as one can translate it into plain English, appears to be that the proposed law is "unnecessary".  Not "unnecessary" in the sense that "it serves no purpose", but "unnecessary" in the sense that "it is redundant" - in other words, the purpose is already being served by existing laws - in this case, tort law.  Let's accept that as the case for the moment.  If so, then why isn't Greenspan arguing against the existing doctrines of tort law which have the result he decries?  He doesn't - not even once, not even remotely.  He apparently thinks it is perfectly fine for victims to be able to sue criminals and recover the proceeds of any book advance or royalty or any other revenue stream derived from the "sale" of a recounting of the crime they committed.  And note that the tort law doctrine, which Greenspan does not argue against, actually bears the characteristic which he incorrectly ascribed to the proposed legislation: if you obtain a judgment in tort, it applies against all sources of revenue, regardless of provenance, until the judgment is satisfied.  So now we know that Greenspan is either lying about his objections to the proposed legislation, does not understand the implications of his argument against it, or misunderstands the laws to which he is pointing.  On this account, all that the proposed legislation does is short-circuit the need for victims to sue their victimizers: instead of having to go to court to get a judgment in order to get their hands on the book advance/royalties, the funds are supposed to be paid directly over (well, first they go to the minister of justice, then they go to the victim - still, that's a lot quicker than going through a trial and trying to enforce a judgment).  Since Greenspan evidently has no objection whatsoever to the underlying principle, why is he opposed to victims being given a more efficient way to seize those funds?  His fifth argument therefore fails for lack of internal consistency and coherency.

The final portion of his fifth argument reveals just how confused it is, and I'll repeat it here for the sake of convenience:

It is thus an irony of the proposed Saskatchewan law that under the current status quo, victims are now more likely to have a chance of receiving compensation from their attackers than they would be if the law passes and perpetrators lose all financial incentives to tell their tales.

That makes no sense whatsoever - on both scenarios, whether sued in tort or as a result of the proposed legislation, the "perpetrators lose all financial incentives to tell their tales", since in both cases they would be foregoing the money in favour of the victim.  So, on Greenspan's account, authors never have a financial incentive to tell their tale - under current law, they can be sued in tort, and under the proposed law they are a priori not entitled to receive the funds.  So what's he complaining about?  Which gets us into the question of motivation and incentives.  But before we get there, let's take a look at the remaining arguments which Greenspan proposes, because from this point, they become simply nonsensical.

Greenspan argument against, the sixth:

If the purpose of the law is to ensure victims are compensated, then the law is unnecessary as that is already a remedy available to victims.

Simply a reiteration of the fifth argument, so it remains unnecessary to address it for the reasons outlined above.

Greenspan argument against, the seventh:

If the purpose of the law is to somehow protect victims from having their story told in public, then the law is a violation of the free speech protections of the Charter.

Yeah, that does seem like it woul... hey, wait a second - why are we talking about "the purpose of the law" as "if" we're not quite sure what it is?  The purpose of the law is not at all to "somehow protect victims from having their story told in public" - because then the law would need to cover not just the criminals, but also journalists, court reports, lawyers, hell, even judges - each of them participate in the "telling of a victim's story in public".  So we know that's not the supposed purpose of the law - it would be a deranged purpose, first of all.  So why doesn't Greenspan do the simple thing, and see what the law itself cites as its purpose?  From Section 3 of the proposed legislation:

The purpose of this Act is to prevent persons convicted of, or charged with, a designated crime from financially exploiting the notoriety of their crimes and to: (a) compensate victims of those crimes and their family members; and (b) support victims of crime.

Was that so hard?  To find out what the actual purpose of the law is, rather than concocting absurd "purposes" advanced by absolutely no one, solely in order to buttress an already collapsing argument?

And anyhow, the law would be ineffective in protecting victims from having their story published, since the law would still not prohibit the perpetrator from writing about the crime for no compensation, and would not prohibit journalists or others from writing about it too.

Of course it would be ineffective in "protecting victims from having their story published" - because that's not what the law is trying to accomplish.

Authors can write and profit from the crimes of others with no compensation whatsoever owed to the victims. In Cold Blood, The Executioner's Song, Fatal Vision, and Dead Man Walking all easily come to mind.

It's excellent that those all easily come to mind.  Why, the question arises, though, did the actual purpose of the law not come so "easily to mind"?  The quoted sentence even hints at the underlying philosophy of the law: we don't care so much about other people writing about crime, because they are not involved in the moral grotesquery of committing a crime and then also profiting from its recounting.  You need both elements of that equation in order to fall afoul of the moral and legal sanction.  Oddly, Greenspan does not once, ever, address the very basic moral question at the heart of the matter: does he think it is morally acceptable to profit from a crime you have committed?  It's just possible that he doesn't think it is morally acceptable: as noted above, he's certainly not opposed to people being able to recover a criminal author's monies by means of a tort claim.  But if that's the case, if he agrees that it isn't morally acceptable, then all he's complaining about is the means by which the end is accomplished - and his arguments against the means simply hold no water.

Buried in the heart of his previous argument is the latent fact which undercuts his entire piece:

... the law would still not prohibit the perpetrator from writing about the crime for no compensation...

Exactly.  So, since the law does not prohibit criminals from writing about their exploits, we need not be troubled by any of his first, second, third, fourth, fifth, sixth or seventh arguments against the proposed law - the accounts will still be written (thus ensuring us access to their doubtlessly endless historical value), there will be no censorship of views contra the Charter, there will be no inhibitions on fundraising for appeals, and the actual purpose of the law (not the faux purposes invented out of thin air by Greenspan) is valid and accomplished in a (relatively) limited manner.  But Greenspan isn't done yet: 

Thatcher was convicted and punished. He has served his time.

If you think Colin Thatcher should not profit from his book, simply do not buy it.

Yes, that does seem like an innovative approach.  It would not, however, address the fact that Thatcher has already received an advance from his publisher for his, er, efforts.  And it also does not address the fact that the impulse of criminal prohibition is not that the act in question offends me or you or someone else, but that it offends societal norms - it's all well and good for Thatcher not to get my money, but he will still be getting some money, and therein lies the objectionable act.

And so, at the end, we are left with a limp noodle of a column and argument: Greenspan is objecting to a proposed statute which accomplishes a much more narrow goal than is accomplished by existing law which he implicitly supports.  He is objecting to it on grounds which are so flimsy that they don't even manage to last through to the end of a 700-wrd op-ed column, being refuted by the author's own arguments.

Now, what arguments could be levelled against this proposed legislation?  Overbreadth for one: it applies not just to those convicted of crimes, but those accused of crimes - quite a big difference; it seems unjust to prevent someone who has not yet been convicted of a crime from receiving monies to which they are otherwise lawfully entitled.  We could query whether the mechanisms put in place in the law are as straightforward as they might be (there's a lot of holding onto funds by the government occurring) or put sufficient onus on the government to disburse in a timely manner.  There might be others.  Do we get any hint of them in the column? No.  Do we get even an explanation of how the proposed law would work? No.  Instead, we get hand-waving and mischaracterization.  Not bad work if you can get it, I suppose.

Seriously, Serious Crime

(update: whoops, had some formatting issues with the graphs - should be fixed now)

(update II: okay, is everyone else having trouble seeing the graphs? they show up in my TypePad editor, but don't appear on-screen at the blog itself... hmmm...)

(update III: I'm sure these editorial digressions are fascinating for y'all - all fixed now)

July.  I love July.  Why? Because July is the month in which Statistics Canada usually releases its annual crime rate reports, which sets off a furious round of lies, misdirection and obfuscation from editorial writers, op-ed columnists and "straight news" reporters.  What are they lying, misdirecting and obfuscating about? Violent crime - mostly, they're trying to get you to ignore it or actively attempting to convince you that, in the face of all available evidence, it's really not such a big problem.  Happily, after a couple of weeks of travelling, I arrived back at my temporary homebase to discover that July has arrived a little bit early this year.

New statistics suggest serious criminal offences were on the decline well before the federal Conservative government launched its anti-crime campaign in Parliament.

The figures, reported by Statistics Canada on Tuesday, indicate police-reported crime was less serious overall in 2007, the year after the Tories took office, than it was a decade earlier. The agency says the crime rate had also dropped, but to a lesser degree.

That's a direct quote from a Canadian Press story published by the Toronto Star - which is under the apropos-of-nothing headline "Crime rate hit 30-year low in 2007" (apropos of nothing because (a) that the crime rate hit a 30-year low in 2007 was reported in July 2008 and (b) the StatsCan report on which the news story is based is not about overall crime rates, but about a new ranking called a "crime severity" index).  It all sounds very impressive: "serious" criminal offences declining, crime is "less serious" than before... it's all very soothing.  Heck, they even came up with a fancy graph which resembles a fun little ride on a downhill slope to hunkydory land.  "Serious" crime is down!  What the heck all you knuckle-dragging conservatives so worried about, huh?

How nice things would be if journalists and commentators could manage to make it through to, say, the third friggin' sentence of the StatsCan press release on which they are basing their reports and posts:

However, the seriousness of police-reported violent crime did not follow this downward trend and remained stable.

In other words, the new, arbitrary, entirely-made up category of "serious" crime declined over the last ten years.  Unfortunately, violent crime did not - it stayed stable.

Here's the graph which fits the narrative:

  

Here's the graph you should actually be concerned about (available here):

Here are the numbers which back up the graph you should actually be worried about.

But, as I've said elsewhere, even to diddle about with the intricacies of the "serious" crime rate over the last ten years, or the "severity" index of the last ten years, or even the "violent crime" rate of the last ten years is to be distracted from the more important (indisputable, incontrovertible) fact that our violent crime rate is vastly greater than it was 20, 30, 40 or 50 years ago (source here - see also page 16 of this StatsCan report):

Has the violent crime rate been "stable" over the last ten years?  Kind of.  If you ignore little things like the fact that the most serious assaults have increased over the past ten years by rates of, oh, 32.3% (assault level 2 - involving use of a weapon/bodily harm) or 18.6% (assault level 3 - aggravated), or that forcible confinement/kidnappings have increased more than 100% over the last 10 years.  But that ten year period of "stability" is rather thin gruel when you realize that we're holding "stable" at an insanely high violent crime rate - one which is roughly quadruple what it was when comprehensive statistics began to be maintained.  But the news reports won't mention that, nor will many of the sneering editorials, nor will many of the glib op-ed writers - it will all be about that first, misleading, untruthful, largely irrelevant headline - yes, "crime", a concept massaged, manipulated and interpreted so as to be largely rendered meaningless is "down", but violent crime, the kind that results in you or someone you love being attacked, raped, robbed, murdered, is nowhere near "down" enough.

Polygamy Panjandrum (Tres)

For anyone looking for a detailed legal analysis of the odds of the polygamy prohibition withstanding a Charter challenge, I strongly recommend Beverley Baines' piece in The Lawyers Weekly.  She concludes that Section 293 of the Criminal Code is unlikely to be deemed Chater-compliant, and she also notes that the federal Civil Marriage Act likely precludes any move towards full legalization (as distinct from decriminalization) of polygamous marriage (though I wonder how that might square with the provisions in various provinces which permit recognition of foreign-performed polygamous marriages).  Finally, she notes that the Law Reform Commission of Canada recommended in 1985 that polygamy be decriminalized - which further upends the Steyn/Warren rhetoric that this entire discussion is occurring solely because of teh gayz.

Polygamy Panjandrum (Dos)

Mark Steyn, who I normally have a fair bit of time for, has written his contribution to the latest round of the polygamy brouhaha.  (In case you missed my most recent installment in this series, see here.  If you need a refresher on my views about polygamy, here it is: polygamy is a bad practice, and you shouldn't do it; I don't think there needs to be a criminal law against it; I don't think the Supreme Court of Canada will strike down the anti-polygamy provisions of the Criminal Code of Canada.)

Over at Idea Anaconda, there is this request prompted by Steyn's article:

But, even if one supports gay marriage, it’s important to recognize that its legalization will bring real changes in the culture, polygamy being just one of them, and probably the least of them. The traditionalist opinion may be odious and intolerant to the gay marriage crowd, but the latter will win more credibility if they answer the objections of those like Steyn honestly and without hostility.

Fair enough.  I will hereby try to answer the objections of Steyn honestly and without hostility (not that I think my previous answers to the objections of, say, David Warren, were dishonest and hostile).  Here goes:

...

Well, that didn't work out so well.  Look, I'd really like to respond to Steyn's arguments against polygamy, but I simply can't figure out what they are (Olaf does a marvelous job of pointing this out).  Nowhere in his article does Steyn elaborate on the basis of his opposition to polygamy - presumably thinking that the practice is so obviously odious it requires no elaboration.  Which may well be the case; but that's not really the debate which is taking place - the debate, to the extent it is taking place at all (for all of Warren and Steyn's lamentations, it's a bit unclear quite who the pro-polygamy armies consist of, other than the two shleps who have been charged), is not about whether polygamy is a good or bad idea, but whether there needs to be a criminal prohibition against it.  Even on that count, however, Steyn's argument is, as with David Warren's before it, confused and confusing.

Firstly, Steyn's causal chains seem to be irredeemably broken: he seems to be taking the view that the government launching a prosecution for polygamy is somehow evidence that ... the entire culture is sliding towards a celebration of polygamy.  Which is just bizarre - if everyone was cool with polygamy, wouldn't the government not be laying the charges?  More bizarre still is the notion that the legalization of gay marriage was the catalyst for the sudden open-armed embrace of polygamy.  Here is the chronology:

(1) 1892 to 2005 - no one is getting prosecuted for polygamy in Canada

(2) 2005 - gay marriage becomes legalized in Canada

(3) 2009 - some guys start getting prosecuted for polygamy in Canada

Incredibly, the Warren/Steyn interpretation of the foregoing is the precise opposite of what has actually occurred - they are reduced to celebrating the cultural fortitude of the days when there were no prosecutions for polygamy (even though it was occurring), and denigrating the cultural fortitude of the days when there are prosecutions for polygamy.  It's nonsensical.  More nonsensical still is the fact that everyone acknowledges that polygamy has been practiced, openly, for decades in Bountiful, British Columbia - certainly for decades prior to the legalization of gay marriage, decades, even, prior to the decriminalization of homosexual sex in 1969.  So how is it possible that gay marriage was somehow the causal agent for polygamy?

By the end of Steyn's article, the causal links are simply melted down and cast away:

Madame L’Heureux-Dubé and her fellow progressives think that women’s rights and gay rights are like the internal combustion engine or the jet plane—that once you’ve invented them they can’t be un-invented. Yet tides rise, and then ebb. Forty years ago Nigeria lived under English common law. Now half of it lives under sharia, and the other half’s feeling the heat. Go back to Martha Bailey’s pitch for immigrants: how many highly skilled polygamists and their legions of wives have to emigrate to Canada before “the rising tide of cultural acceptance for gays” begins to ebb?

So... if I've got this straight (punny!), legalized gay marriage (which Steyn doesn't like) leads inexorably to polygamy, which leads inexorably to lots of anti-gay polygamous immigrants, which leads inexorably to gay marriage being frowned upon and possibly being made illegal again.  Right.  So... shouldn't Steyn et al be in favour of encouraging polygamy so as to achieve the desired end of rendering gay marriage unacceptable and/or illegal?  Or am I missing something in the argument?

I think polygamy's a bad idea, for a host of reasons (not least of which is that I imagine it would leave you really tired), but I have no idea why we need it to be prohibited by the criminal law.  I can tell you, definitively, that my views on polygamy are informed not at all by its legal prohibition.  No one, ever, said to me "Bob, polygamy's a really bad idea and if you need any further proof, why it's prohibited in the Criminal Code of Canada" - they didn't need to.  It's like murder, or other "crimes" that the fancy-pants legal philosophy types like to call malum in se - if tomorrow the government decided to repeal the Criminal Code prohibitions on murder, we wouldn't all suddenly go "Oh, so now it's morally okay to kill people".  The criminal law is not morality - nor is morality the criminal law.  It's nice when the two overlap, but if they don't, that's not a critical failing for either.

Take Tom Flanagan's argument, which Steyn references: "If this isn't properly defended, there will be a train of consequences flowing from a loss, which will lead to full-scale normalization of polygamy."  Oh, you have got to be kidding me.  A "full-scale normalization of polygamy"?  This succumbs to what I like to call the "legal determinist" fallacy - that if something isn't expressly prohibited by law, suddenly everyone is going to run out and do it; or, in its a fortiori iteration, that if something was previously illegal, once it becomes legal, everybody will suddenly run out and do it.  Every single Canadian citizen is perfectly free to buy as many Robbie Williams CDs as they want to.  Oddly enough, not many of them do.  Why?  Who the hell knows?  But the fact that something is legal doesn't magically render it fully "normalized" or cause human beings to become automata, unable to prevent themselves from carrying out the action in question.  Our Criminal Code used to make it a criminal offence to attempt suicide - when that provision was repealed in 1972, Canadians didn't suddenly decide to try and off themselves.  When gay marriage was legalized in 2005, millions of heterosexual Canadian males didn't suddenly say to themselves, "f**k it, I'm marrying Steve tomorrow".  (Hell, not even homosexuals were all that fired up about getting married - a point which, bizarrely, the anti-SSM brigades then cited as proof that it should never have been legalized in the first place (bizarre because it contradicted their prior stance that legalizing SSM would result in a cultural tsunami that would bury heterosexual marriage).)  There are centuries of cultural inertia behind our distaste for polygamy - the notion that our cultural aversion to polygamy is buttressed solely by section 293 of the Criminal Code not only does a disservice to our cultural heritage, it seems to completely misunderstand how our society actually functions.

Before leaving Steyn entirely, there is one argument he raises which warrants further consideration:

“Gay marriage, they assure us, is the merest amendment to traditional marriage, and once we’ve done that we’ll pull up the drawbridge.”

Claire L’Heureux-Dubé, the former Supreme Court justice, remains confident the drawbridge is firmly up. “Marriage is a union of two people, period,” she said in Quebec the other day. But it used to be a union of one man and one woman, period. And, if that period got kicked down the page to accommodate a comma and a subordinate clause, why shouldn’t it get kicked again? If the sex of the participants is no longer relevant, why should the number be?

There are the hints of a devastating argument in there: we redefined "marriage" so as to not take account of the gender of the participants, so how can we logically defend a definition of "marriage" which is limited to "two persons"?  As Steyn says, if gender is no longer a limiting agent, why should the number of participants be?  True enough.  It is indeed extremely difficult to construct a logically coherent argument which allows marriage-regardless-of-gender, but draws the line at marriage-regardless-of-numbers.  However, Steyn's argument misapprehends the nature of legal reasoning and quite why laws get struck down or upheld.  In short, "logic" has little to do with it.  We don't require our laws to be logically consistent - we require them only to be reasonable.  If laws required "logic" to be valid, we'd have awfully few laws.  What's the "logical" basis for restricting drivers licenses to those aged 16 years and older?  Why not 14 years?  Why not 32 years?  Yet our courts don't strike down the age-based restrictions on driving, any more than they strike down speed limit laws, or laws prohibiting construction of buildings over certain heights, or laws prohibiting sexual relations with children under certain ages or any other set of laws which contain numerical or other conceptual limitations which cannot be defended on the basis of "logic".  The prohibition against polygamy need only be reasonable: and in light of the relatively well-documented negative social repercussions which follow on from polygamy, my money is on the courts ultimately concluding that a prohibition of polygamy is, indeed, reasonable.

Polygamy Panjandrum

David Warren's latest column, on the inevitability of legalized polygamy, is deeply confused, not to mention confusing.

Warren's argument, near as I can make it out, is that Canadian courts are on the cusp of "inevitably" (Warren's term) making polygamy legal in Canada, which (a) is an illegitimate activity on the part of the courts, and (b) will have dire social consequences.  Neither of those claims stand up to much scrutiny.

As Warren concedes, polygamy has been openly practiced in at least one Canadian community (Bountiful, British Columbia) for going on fifty years (until February of 2009) without a single prosecution being launched under the existing prohibition on polygamy.  That "fifty years" bit is important - if, as Warren seems to think, the Charter is all that is standing in the way of successful prosecutions for polygamy, how to explain the fact that no one was bothering to bring polygamy prosecutions in the decades prior to the Charter's introduction in 1982?  And what does it say about the validity of a law which is openly, wilfully and flagrantly flouted for decades on end without any repercussions?  Does it perhaps say the teeniest thing about the advisability of that law?

Worse, though, is the wilful misrepresentation of the current state of the law:

That the legalization of polygamy will have more immediate practical consequences than same-sex marriage can be easily seen. It will make Canada the first country in the Western world to be compelled to accept the multiple wives of immigrants from such countries as Saudi Arabia, where polygamy is legal; and others, as refugees from where it is not.

Regardless of whether Canada is in the vanguard on this point, Mr Warren should surely be aware that a number of Canadian provinces, including Ontario, already "accept the multiple wives of immigrants from ... countries ... where polgamy is legal" - and they do so not at the end of the whip of the judiciary, but after the considered deliberation of the legislature.  Thus, Section 1(2) of the Family Law Act (Ontario):

In the definition of “spouse”, a reference to marriage includes a marriage that is actually or potentially polygamous, if it was celebrated in a jurisdiction whose system of law recognizes it as valid.

This is not new.  Thus, when Warren goes on to argue that "[Court imposition of legalized polygamy] will have fiscal implications, as polygamous families sue to receive multiples of the benefits now received by common law and other two-adult families ... [and] will create a legal vacuum in which demands will be advanced for everything from public recognition of polygamous marriages to status claims by additional wives and sundry children", he again seems to be entirely unaware of the fact that under the current legal regime in Ontario, as enacted by the legislature, participants in polygamous marriages performed in other jurisdictions are already perfectly entitled to receive public recognition of those marriages and related status claims.  One might be of a mind to try and reconcile the divergent approaches taken by the Criminal Code and the Family Law Act regarding the advisability of polygamy (not hard to do, really - the former prohibits its occurrences in Canada, the latter sanctions it if it occurred in a different legal regime), but no such nuance is present in Warren's column.

Will the courts "inevitably" strike down the polygamy prohibitions of the Criminal Code?  I wouldn't bet the house on it - though it's certainly possible (most informed observers on the matter (see here for example) think it's a pretty close call, but my sense is that striking down polygamy on the basis of infringement of religious freedom will be seen as a step too far by the Court and one which they won't be inclined to take).  For the record, my own position on this issue accords roughly with what Jon Bricker calls "a libertarian stand" - "the state has no more place in the proverbial bedrooms of the nation when it comes to polygamy, than when it comes homosexuality and adultery".  I don't think the state should be encouraging polygamy, but I'm not sure why, absent coercion or fraud, we should be threatening to throw people in jail for it either.  The argument that "Canadian society/culture" has long rejected polygamy has much to recommend it, but one adopts a rather thin view of society/culture if you think that the only way in which a society/culture can express its values is by means of the criminal law.  Put slightly differently, if you need the full penal power of the state to reinforce the abhorrence of polygamy, then maybe the societal/cultural taboo against it is a little weaker than you'd care to admit.  Put even more slightly differently, nobody has bothered to enforce the polygamy prohibition, yet the practice is (and its practitioners are) still shunned by the vast, vast, vast majority of Canadians - so we clearly don't need the threat of the criminal law to undergird the social norm.

But of more concern than any gaps in logic or mistakes of law is this passage:

To ensure self-defeat, [the Harper] government is now mounting its whole case on "Canadian values." As one legal blogger writes, "Canadian values" currently embrace saving puppies, but eating cows. "Canadian values" would have some relevance to the case if Canadians had the right to decide whether they wanted polygamy to be legal; and if, moreover, Canadians were allowed to debate such issues openly, freed from the legal and other intimidations of the politically correct.

But we have lost that right, which has been transferred - thanks chiefly to the Charter, but also to various supporting trends in politics, jurisprudence, bureaucracy, and media - to special-interest activists who can afford lawyers and lobbyists to work the system.

That is such an utterly bizarre collection of assertions that I'm having difficulty separating them out.  (I'll leave aside the contention that the determination of the polygamy issue is being transferred to "special-interest activists who can afford lawyers and lobbyists to work the system" - a cabal which currently, as far as I am able to see, consists of the two men charged with violating the anti-polygamy provisions and their defence counsel.)  To begin, the notion that Canadians are somehow being prevented from "openly" debating the legality of polygamy is manifestly absurd (rendered no less so because Warren is openly debating the matter in a major newspaper in one of Canada's largest cities).  I'm struggling to think of a section of the Criminal Code which has been the subject of as much discussion over the last decade or so as Section 293.  There has been extensive coverage in major Canadian newsweeklies; reports commissioned by provincial governments [.pdf]; reports commissioned by the federal government [.pdf]; more news reports than you can shake a stick at; and more blog posts about it than there are minutes in the day.  The notion that this is an issue which is being obscured by "legal and other intimidations of the politically correct" is, to use the French, delusional.

Moreover, the notion that debate on this issue is being stymied or silenced is itself corrosive to public engagement - if people read Warren's column, not only are they misinformed about the facts, but they are left with the impression that forces are at work which are actively stifling debate, thereby reducing, baselessly, what little confidence people have left in the efficacy of our public discourse.

How Not to Argue in Favour of 2-for-1 (Seis)

The good folks at Canadian Lawyer asked me to write an op-ed about the debate over two-for-one sentencing credits, giving an overview of the arguments.  The result is here.

How Not to Argue in Favour of 2-for-1 (Cinco)

This column by Edward Greenspan in favour of two-for-one sentencing credits is little more than a screed against Stephen Harper, so it hardly warrants much attention (and, really, if you aren't going to accept at face value the arguments of criminal defence counsel on matters of the criminal justice system, then you are just far, far too cynical).  Greenspan wanders through the usual rote collection of arguments in favour of sentencing credits: remand is tough, judges need more discretion, Stephen Harper is a big meanie, etc.  Greenspan's argument largely rests on the notion that Stephen Harper is a bad guy, and since Harper's the one who came up with this idea, it must therefore be a bad idea.  Regrettably, Greenspan never mentions that the proposal to eliminate two-for-one sentencing credits didn't fall out of the clear blue sky, nor was it concocted by a cigar-chomping cabal of Reformatory and Rethuglican strategists - it's something that has been repeatedly agreed upon and requested by provincial attorneys general, over a period of years.  Those provincial attorneys general represent parties across the political and ideological spectrum - Conservative, Liberal and NDP.  The measure proposed by the federal Tories has also secured support from the federal Liberals and NDP - something else which somehow manages to escape Greenspan's attention.

But all that is mere throat-clearing for this post.  My favourite moment of Greenspan's column comes about two-thirds of the way through:

Prisoners are given two-for-one credit because pre-trial detention typically involves conditions that are harsh. ... Some plead guilty just so they could be removed from the harsh conditions of a detention centre and be sent to a prison with better conditions. And our prisons aren't spas, believe me.

You're absolutely correct, Mr. Greenspan.  Our prisons are not spas... except when they are:

For nearly seven years, Kuldip Singh Samra has been playing chess, baking cookies, preparing his own meals in his residential-style unit, working in his vegetable garden, taking courses in sociology and jogging on a private track at the minimum security facility that isn't surrounded by a high wall or a barbed-wire fence. Ferndale Institution also boasts a tennis court and weight room.

Or we could talk about the convicted cop-killer who gets to hang out at the minimum security Kwikwexwelhp Healing Village.  Or when first-degree murderers get to board their horses and play golf in prison, or attend football games while on day parole.  I'm on the outside, and I don't even get to tend my vegetable garden or play golf on the government tab - heck, where am I supposed to put my horse?

How Not to Argue in Favour of 2-for-1 (Cuatro)

(updated below)

Join me again, won't you, for another harangue about the two-for-one sentencing coverage (previously here, here, here and here).  This post isn't about the merits (or lack thereof) of the pro-credit position (I'm assuming we're all a little tired of that by now) - this is about something almost as important: the media coverage of the proposals.  Specifically, this is about how atrocious that coverage has been.  I think this all has something to say about the troubles in which news media outlets currently find themselves.

I'm going to pick, again, on Christie Blatchford and Dan Gardner.  Not because what they've provided has been worse than the other coverage, but because they're better than this.  Both are intelligent, popular, well-respected and award-winning journalists and commentators.  Certainly I enjoy reading both of them and respect their work for its insight and the new information and perspectives it provides.  But the coverage and commentary on this issue has just been staggering.  The uniform awfulness of it is indicative not of individual failings, but systemic failure.  Blatchford and Gardner write under the imprimaturs of major Canadian newspapers (the Globe and Mail and Ottawa Citizen, respectively) which are supposed to be indicators of accuracy and objectivity - but clearly are not.  Neither Blatchford nor Gardner seem to have much stomach for defending two-for-one sentencing credits on their own terms (since there's hardly anything there with which to support them), so they rely on second-order arguments - mostly about how awful the Conservatives are.  They pivot into a discussion about how nobody (but particularly the Conservatives) is doing anything to address the clogged court system.

Blatchford: "The extra-credits practice is just a symptom of what everyone who works in the courts knows very well is the real problem - the egregiously glacial pace of Canadian justice - but which no one much wants to discuss, let alone fix."

Gardner (in his column): "So why aren't the Conservatives talking about how to unclog the arteries of the justice system and make it work better? Because that's administrative reform."

Gardner (in comments at this blog): "If a federal government is upset by sentence discounts, they can bring the provinces together to identify the sources of administrative congestion and work together to resolve them. Simple, pragmatic, sensible. But not politically sexy in the least, which might explain why the feds aren't doing it."

It's difficult to overstate just how absolutely, incontrovertibly, undeniably incorrect those statements are.  Does Blatchford honestly believe that "no one wants to discuss, let alone fix" slow criminal trials?  Is she honestly not aware of the numerous federal and provincial initiatives which have taken place in order to address this very issue?  Is Gardner seriously saying that the Canadian federal government has never "[brought] the provinces together to identify the sources of administrative congestion and work together to resolve them"?  Really?  Really?  So when the federal government convened a meeting of all attorneys general across Canada (in September 2008, no less) to discuss this very issue, and announced new funding and programs to tackle this very issue, and then put out a press release about it, what exactly was that all about?  When provincial governments across Canada implemented programs (see Ontario's here) to address this very issue, how did it get missed?  How did that not get taken account of in either the straight news coverage or the commentary about it?  I have not seen a single news item or comment on this matter which acknowledges, at all, that the provincial attorneys general, of every political stripe, agreed in 2008 to support the elimination of the two-for-one credit as one component in a package of comprehensive reforms which aimed at speeding up trials, under the tutelage and with the additional funding provided by the federal government.  Worse, the commentary has ignored that and accused the government of doing the opposite.  We're not talking about uninformed screeching on partisan blogs.  We're talking about professional journalists, who write about this topic constantly, evidently not knowing basic information on the matter which a few seconds of Google searching would have turned up.  How is this possible?  We're not talking here about a mistake, like getting a date wrong - we're talking about negligence.

Please, anyone who's interested in the answer to that bolded question, please read Nick Davies' Flat Earth News.  These are systemic problems.  Too few reporters, too many "commentators", too much demand for content being produced under too-short deadlines.  It would be really, really nice if either of Blatchford or Gardner would revise their accusations about the federal (and provincial) governments "not talking about" this issue, or "doing nothing" about this issue, but I think that, regrettably, won't happen.  Which is a shame.  Because the cynicism that such failure breeds, the resentment about the product which is being produced, does nobody any favours.  Many political problems seem so intractable simply because the arena of public discourse is flooded with so much misinformation that as much time is spent wading through the morass as is spent engaging the actual issues.  And when professional journalists are contributing to the problem, we all, journalist and reader, are rendered the poorer for it.

Update - In the comments, Dan Gardner has objected to the last sentence of the second-to-last paragraph, which he deems a "scuzzy slur".  Having re-read the paragraph, I'm inclined to agree with him - so I apologize to Dan and to anyone else who I offended.  When I wrote the paragraph, I was hoping to convey my judgment that the news industry as a whole, by virtue of its cutbacks, shortsightedness and general emphasis on "punchy" news delivery rather than indepth analysis was producing coverage which is less than accurate, to the detriment of public discourse.  The argument goes something like this: the news industry has a duty to provide accurate coverage, they fail to carry out that duty by means of reasonable efforts, ergo they are negligent.  Whether that argument is accurate or not, it is certainly not fair, absent much more compelling evidence, to level that charge at an individual journalist, which my language certainly did.  Again, my apologies.

How Not to Argue in Favour of 2-for-1 (Tres)

(updated below)

And Dan Gardner makes his valiant attempt at defending the wisdom of the two-for-one sentencing credit.  He fares no better than those behind previous installments of this saga (here, here, here).

The essential thing to bear in mind when examining the Harper government's policies on crime is that they are not about crime. They are about politics.

Indeed.  Why the Ottawa Citizen didn't war-headline their Saturday edition with "POLITICIANS ENGAGED IN POLITICS" is beyond me.

... Since taking power, in part thanks to tough talk on crime, the Harper government has consistently introduced small, cheap, crowd-pleasing reforms at the most politically opportune moments.

So, they should have introduced big, expensive reforms which pissed people off and at politically inopportune moments?  More seriously, this is just meaningless sniping: if the Conservatives had attempted (wielding a minority government, no less) to pass omnibus wholesale criminal justice reform, pundits like Gardner would be grousing that they had bitten off more than legislators could reasonably chew, it was too complicated, it resulted in lack of attention being paid to significant issues, etc.  This isn't criticism, this is filling up your word count.

It has passed redundant laws. It has passed laws it knows will be struck down by the courts. It has delayed passing popular bills, preferring to keep them handy for the next political opportunity.

It would be nice to have some examples here, but let's take Gardner at his word.  (With respect to the "delay" argument, he's referring to an Aaron Wherry post which itself linked to another article, which, if memory serves, made the argument that the Conservatives were being fiendishly fiendish by passing legislation at a time not to the liking of Wherry and the original writer of the article.  Trust me, it didn't make any more sense in the original rendering.)

And, most tellingly, it has refused to make serious and substantial changes that wouldn't be so politically sexy -- tackling the Corrections and Conditional Release Act, for example.

Touche!  Failure to address the Corrections and Conditional Release Act is indeed a significant failing, but it's unclear why getting rid of statutory release or making parole more difficult to obtain wouldn't be "politically sexy" - it's exactly what many of us have been begging for for years.

... So we should be suspicious about the government's announcement that it will eliminate so-called sentencing discounts for time served awaiting trial.  Is it broadly popular? Absolutely. Will it please the Conservatives' disgruntled base? Certainly. Will it make streets safer or the justice system more just? Not in the slightest.

Wrong on two counts: will it make streets safer?  Yes, to the extent that convicted criminals are kept behind bars longer.  A non-trivial amount of crime is committed by recidivists - keep them in jail and, ipso facto, the crimes they would otherwise be committing would not be committed.  Will it make the justice system more just?  Well, that's really the nub of the question, isn't it?  Is the current two-for-one sentencing credit in any way "just"?  The pro-credit side says "yes", the anti-credit side says "mais non".  Let's see Gardner's arguments for the justness of it all.

Let's start at the beginning: Every person accused of a crime is considered innocent until proven guilty. And we do not put innocent people in jail.

This is the origin of bail. If you are charged, you have a right to go free on bail, unless and until you are convicted at trial.

Sometimes this right must be curtailed, however, such as in cases where the accused clearly poses a threat to the safety of others. So someone accused of a crime may end up sitting in jail, awaiting his day in court. If he is convicted, it only makes sense that the time he spent incarcerated awaiting trial should count against his sentence. He was in jail, after all.

But why should he get a discount? Why should the month he spent in jail count as two months -- even three -- against his sentence?

It doesn't make any sense. Surely, this is just our ridiculously soft justice system finding another way to coddle criminals -- and the Harper government should be applauded for eliminating it.

On the surface, yes. But dig even a little deeper -- something the Harper government never bothers to do -- and the reality looks very different.

Hmmm.  Okay.  With you so far.  "Our ridiculously soft justice system finding another way to coddle criminals", yep.  "Dig a little deeper", sounds good.

"Many of the institutions used to house those awaiting trial are old and poorly equipped. Sanitation and living conditions are primitive. Segregation is difficult, and security conditions designed to meet the requirements of the most difficult inmates must apply to all. This means that security in these institutions often exceeds that in institutions housing the convicted. Little is available in the way of programs. Problems of segregation and classification make even work or recreational programs difficult to organize."

And here is where the Great Schism occurs.  At this point, the pro-credit side is rendering its garments and gnashing its teeth - gods, the injustice of it all!  Poor conditions!  Tight security!  No recreational programs!  We! Must! Give! Two! For! One! Credits!  Everyone else is looking at that passage and thinking, "Isn't jail supposed to be like that?"

That passage comes from the Ouimet Report of 1969, but don't think it's outdated.  If anything, the situation is worse today.

Ka-pow!  That's presumably the sound effect that accompanied Gardner's typing of those two lines.  You think this whole "pre-trial custody" sucks thing is something new?  Hells, no - why, they were concerned about this in the 1960s!  And we all know how genius the criminal justice ideas that flowered in the 1960s are, and how they had such a remarkable effect in lowering crime rates, and... actually, you know what?  Memo to pro-credit partisans: please keep quoting things from the 1960s to buttress your argument.  Y'all wear it well.

In 2005, the number of people incarcerated while awaiting trial surpassed the number serving sentences in all provincial jails combined. The remand population is growing so rapidly, it is now 25 per cent bigger than the population doing time in provincial jails.

Okay.  And?

In the latest StatsCan report, which only goes up to 2006, the number of inmates who spend a week or less in remand has fallen from 62 per cent to 54 per cent. Those who spent three or more months in remand rose from four per cent to seven per cent.

As a result, remand facilities tend to be overcrowded, filthy, tense, warehouses where inmates sit and stare at the walls 24 hours a day with no idea how long they'll be there. The older facilities are the worst but newer jails aren't much better. I've been inside the toughest maximum security prisons in Canada and the United States and Ontario's new Maplehurst jail and remand facility is as locked-down and scary as any of them.

Very simply, remand is hell. And that is why, so the argument goes, time incarcerated awaiting trial counts for more than regular time served.

Ah.  If that's how "the argument goes", man, that it is one crappy argument.  Remand is hell!  Fine.  That's an argument in favour of making remand conditions less harsh (or, as Jim Whyte put it, it's an argument for making jail more like remand).  What it is not is an argument for granting two-for-one sentence credits.  The pro-credit side is trying to making two or three stages of an argument, when they have fuel enough only for one.  Remand is hell?  Fix remand.  Granting two-for-one credits is an irrational response to the perceived problem - it doesn't "fix" the "suffering" which occurs in remand - the prisoner still suffered it.  It's also a nonsensical response to the "problem" - why a 2x credit?  Is remand always exactly twice as harsh as jail?  Why not 1.2x credit?  Or 17x credit?  How precisely are we measuring "hellishness" here?  More importantly, granting two-for-one credits is unjust: it reduces time served without reference to any of the goals of sentencing set out in the Criminal Code: it serves the ends of none of deterrence, denunciation, rehabilitation, incapacitation or the promotion of a sense of responsibility in the offender.  In fact, the two-for-one credit actively undermines each of those purposes,  by arbitrarily lessening the punishment inflicted on the offender and illogically reducing the amount of time they spend in that portion of the prison system where rehabilitation programs are available.

But notice that the core issue here is not the sentence discount. It's that far too many people are spending far too long in remand: Bring people to trial swiftly and everything else is moot.

So why aren't the Conservatives talking about how to unclog the arteries of the justice system and make it work better? Because that's administrative reform.

Actually, federal Conservatives spend little time talking about unclogging the arteries of the justice system because "administrative reform" is not the role of the federal government - provincial governments have responsibility for the administration of the provincial courts, where the vast, vast majority of criminal trials occur.  Seriously, do none of our newspaper columnists understand the separation of powers when it comes to the criminal justice system?

Gardner goes on from there - politics, votes, more politics, but it's all a little deflating by that point.  Still, we hunt in vain for a cogent argument in favour of the two-for-one sentencing credit.

(update: Few things are more embarrasing than posting something like the above and getting the spelling of the guy's name wrong.  Gardner.  Not Gardener.  Which I should know: I read the guy's column, his blog, his book.  *sigh*  Apologies to Dan.  The post above has been modified only to fix the spelling of his last name.  (I would also have corrected "rendering" to "render", but since that just reflects poorly on me, I'll leave it intact.))

How Not to Argue in Favour of 2-for-1 (Dos)

The ineffectual rolling out of arguments in favour of the two-for-one sentencing credit continues apace (see here and here).  With the latest, though, are those the swelling strings of pity I'm beginning to hear for the proposition side of this debate?  Ladies, gents, Julius Melnitzer:

How short-sighted can the Conservatives be on law and order? The recent move to restrict credit for time-served while awaiting trial is bound is increase the pressure on courts and judges, already under fire for not getting cases to trial fast enough. Expect a new host of motions for dismissal based on the failure to get accused speedy trials - - - motions that will now have the additional force of the argument that prejudice to the accused has increased greatly because of the restrictions on pre-trial custody credits.

That's argument the first.  As near as I can tell, it amounts to "we need to let judges give two-for-one credits so that they can shove convicted criminals out on the streets more quickly, or else they'll be tempted to get them out there even more quickly than that".  Which probably says more about the attitudes of the judiciary than Mr Melnitzer would like.  It's a little unclear what the argument supporting the motions would be: "Your Honour, it used to be that you were super-nice about handing out credit for jail time; now, my client's trial is taking an awfully long time to get to court - and, yeah, I know that's partly because I keep bringing motions like this one, but roll with me here - so I'm wondering if, in light of the fact that you're no longer allowed to be so super-nice about handing out credit for jail time, you could, just, you know, let him go?"  Even someone as cynical about the criminal justice system as your correspondent here likes to think that there aren't many judges who would fall for that.

As for argument the third, I have little to say about it, mostly because I can make neither heads nor tails of it:

Finally, imagine that Garth Drabinsky and Myron Gottlieb didn't have the means to post bail over the 11 years they stretched out the proceedings against them. Should they be given the same sentences as someone who's done even a couple of years in custody for the same crime? And what does all that say about social justice? Anyone see a s. 15 equality argument here?

What?  First, Drabinsky and Gottlieb are in jail for 11 years, then they're being given sentences of a couple of years, and that's really unfair because some other guy got a sentence, then... Section 15?  I like to think I have at least a rudimentary grasp of the English language and forms of legal reasoning, but that one has me completely baffled.  Reader suggestions on proper interpretation are warmly welcomed.

But argument the second is where Melnitzer's piece really shines:

You've also got to wonder how effective such legislation can be. Surely judges looking at an accused who has served an unduly long time in custody will find arrows in their quiver of sentencing discretion that will allow them to take into account the hardship of time in the local bucket. It's just that the judiciary l have to do a little more dancing in their reasons. What does that say about transparency?

The utter shamelessness of that passage is just breathtaking.  Let's see if I've got the argument straight: if we eliminate two-for-one sentencing credit, judges will indulge in "a little more dancing" in order to hand out the sentences they really want to hand out.  So, on Melnitzer's argument, the judges will engage in a bit of sleight of hand... and this is somehow the government's fault?  Howzabout the judges just, you know, not engage in the "dancing"?  More shameless, however, is the intimation that the current system is the very model of "transparency".  It would be one thing if sentencing decisions were in any meaningful way clear about the amount of time to which a convicted criminal is being incarcerated, but they aren't - figuring out the actual punishment that someone is receiving is an exercise akin to the most obtuse Captain Midnight decoder ring puzzle.  Instead of getting reasons which say things like "nine years, but with the two-for-one credit, and taking into account eligibility for parole, and day parole and statutory release, more like fifteen minutes, which seems about right", they just thunder "nine years!" and then the victim (and the rest of us) are reduced to stupefaction when it dawns that, in Canadian criminal justice-speak, that means "fifteen minutes".  Eliminating two-for-one sentence credits isn't a magic bullet which will result in "truth in sentencing", but it's a step in the right direction.  To argue that obviating sentence credits will somehow result in less transparency is just bizarre.  And since two-for-one credits should stand or fall on their own merits, none of which have been made evident by any of the arguments which have been presented, we're still faced with the question of quite why they should be retained.

How Not to Argue in Favour of 2-for-1

It was just a matter of time until someone trotted out the "clamping down on judicial discretion" argument against the elimination of the 2-for-1 sentencing credit.  James Stribopoulos cheerfully obliges.  Here's the thing: we can tell, right off the bat, that those arguing in favour of "judicial discretion" are engaging in bad faith.  How can we tell?  Because they only ever want to increase "judicial discretion" in order to enable judges to hand down more lenient sentences.  You will never, ever, under any circumstances, hear one of the supposed proponents of "judicial discretion" make the argument that we should eliminate the caps on sentencing contained in the Criminal Code - under no circumstances should judges be able to indulge their "discretion" to, say, levy an even harsher punishment on a convicted criminal.  No, "discretion" is only allowed to flow in one direction - away from punishment.  If the "judicial discretionists" were even marginally consistent, they would be lamenting the fact that the Youth Criminal Justice Act, f'rinstance, prohibits judges from exercising their "discretion" when it comes to first-degree murderers and sentencing them to longer than a few years imprisonment.  You will never hear them say that they think the cap on aggravated assault of fourteen years imprisonment should be lifted, otherwise the legislature is "interfering" with the "discretion" of judges.  I could go on.  Suffice it to say that since the judicial discretionists don't take their own argument terribly seriously, neither should anyone else.

But Stribopoulos goes on.  It is unfair not to give 2-for-1 credit on Stribopoulos' account (left completely unexamined is why 2x is the magic number - why not 1.3x? 2.4x? 16.2x?)  because conditions in pre-trial detention facilities are "comparatively harsh": overcrowding, "few, if any, activities or programs and minimal opportunities for physical exercise".  (I know, I know - I also had to pick myself up off the floor when I read of the lack of "activities or programs", but soldier on.)  It's unclear, however, how that is argument in favour of sentencing credits and not, say, ameliorating the "comparatively harsh" conditions.  If conditions are harsh, fix them - but why would that translate into a mystical amplification of time served?  Don't forget, we're not giving sentencing credit to people who are innocent of a crime - we're giving it to people who have been convicted of the crime.  An argument a few orders of magnitude stronger than "being in pre-trial detention, like, sucks" will need to be brought to bear here.  "In short," Stribopoulos thunders, "these are very unpleasant places to spend time."  Well, good.  It's prison.  It's supposed to be unpleasant.  Can't do the time, don't do the crime, etc. etc.  If proponents of the 2-for-1 credit are trying to make an argument about how unfair it is to put people who are ultimately determined to be innocent in pre-trial detention, then that's an entirely separate discussion - the answer to which is not "give everyone a 2-for-1 credit".  If the state has harmed an innocent individual, then the state should be obliged to compensate that individual, not the guy down the hall.

Perhaps acknowledging that this is a less than fruitful avenue of rhetoric, Stribopoulos moves on:

The second, and even more compelling rationale, is that unlike an actual sentence, the period spent in pretrial custody is not open to remission for good behaviour and the offender is not eligible for parole.  For example, an offender sentenced to more than two years is eligible for parole after 1/3rd of their sentence and must be paroled, barring exceptional circumstances, on the completion of 2/3rds of their sentence.  In contrast, an offender who spends two years in pretrial custody awaiting trial spends two years in custody with no chance for remission.  Giving enhanced credit for pretrial custody is meant to provide some redress for the fundamental unfairness that would otherwise result, unfairness that the Conservatives now wish to legally mandate.

This is where things start getting a little wonky - it's not Stribopoulos' fault, the wonkiness lies at the very heart of the entire 2-for-1 credit position.  Take Accused A and Accused B.  Both spend two years in pre-trial detenion.  Once the trial occurs, A gets sentenced to 2 years and B gets sentenced to 14 years.  An unfairness has occurred vis-a-vis A: he has spent 2 years in confinement, when he would have been entitled to parole at 1/3 and statutory release at 2/3 of that time (we'll ignore for now the rampant idiocy in the statutory release scheme).  But, again, how does granting 2-for-1 credit to B (who will spend two less years in prison than he should) in any way address the unfairness to A?  If we've been unfair to A, let's compensate A in some fashion - giving B a windfall is nonsensical and counterproductive.

Then everything spins out of control.  The Conservative efforts (supported, according to news reports, by the Liberals and NDP, a fact which garners no attention from Stribopoulos) are motivated by "a perception, which has much public sympathy but no empirical support, that Canadian judges are too lenient and that criminals are being treated with kid gloves".  No empirical support?  Really?  Let's put this in ways that the 2-for-1 advocates can understand: Canadian judges are too lenient and are treating criminals with kid gloves.  18 months for killing someone while drunk driving (less parole, statutory release and 2-for-1 credit, of course).  Five years (less parole, statutory release and 2-for-1 credit, of course) for "a vicious racial assault on a disabled black man" by someone who had 43 prior convictions.  Fourteen years (less parole, statutory release and 2-for-1 credit, of course) for a brutal rape - the eighth which the man had committed.  Five years (less parole, statutory release and 2-for-1 credit, of course) for repeatedly raping a baby.  I could go on.  But, really, I don't have the stomach for it today.  So, yes, Mr. Stribopoulos, leniency and kid gloves - anything that can be done to put a halt to that, I, and many, many others, am and are all for it.

From there, things get downright surreal.  As with all the best Canadian commentary, fingers start being pointed at the United States:

It is interesting that this was the sentiment [i.e., restricting judicial discretion in sentencing] that swept over the United States a generation ago, leading to a wave of harsh mandatory minimum sentences.  It is now relatively well accepted that these efforts have not succeeded in deterring crime.  What really influences deterrence is certainty of apprehension rather than the severity of the potential punishment.

Frankly, that's just bizarre.  US crimes rates (particularly violent crime rates) have collapsed compared to their highs in the 1980s and 1990s.  Let me quote from this article, which everyone is encouraged to read: "the increase in incarceration over the 1990s can account for a reduction in crime of ... about one-third of the observed decline in crime" (page 178-179 of the article, 16-17 of the .pdf).  The "relatively well accepted" notion of Stribopoulos's argument is not "accepted" at all.  Then he trots out the old canard that it is not punishment that deters crime, but "certainty of apprehension" which does all the work.  If that is the case, then why not propose a system based on no punishments whatsoever, or punishments only of one day, but massively increased police presence, so that apprehension is all but assured?  Few propose it, for a variety of reasons, but most important of all, because we know that an exceedingly small number of people would support it.  And why?  Because criminal justice, pace Stribopoulos, is not all about "deterrence", it's in significant part about denunciation and retribution.  But Stribopoulos, in the repetition of a technique used by criminologists and pundits to forestall debate on these issues, refuses to engage in matters of whether criminals deserve to be punished, or whether they deserve to get magical reductions in their sentences because judges are exercising their "discretion".  Instead, he attempts, falteringly, to rely on statistics and arguments which don't withstand the barest of scrutiny.

Christie Blatchford: Fail

(updated below)

If you're looking for further evidence of how corrosive to public discourse is the format of the standard newspaper op-ed column, you could do worse than Christie Blatchford's latest.  Having written a handful (literally, you could hold the accumulated words in one hand) myself, the basic formula for op-ed column writing goes like this: (1) take a recent event or set of commentary on a recent event; (2) say "nuh-uhhh!"; (3) stretch that out into about 800 words; (4) remove any context or nuance; (5) submit.  Here's the nub of Blatchford's column:

All this is by way of saying that the federal Conservatives have the trees firmly in their elephant-gun sights, but remain steadfastly oblivious to the forest.

Justice Minister Rob Nicholson was yesterday talking up the Tory plan to end the notorious "two-for-one" practice; the government will introduce legislation to this effect tomorrow.

But the problem isn't the double-time - or triple time - credits, or even the judges who dispense them like bonbons.

The extra-credits practice is just a symptom of what everyone who works in the courts knows very well is the real problem - the egregiously glacial pace of Canadian justice - but which no one much wants to discuss, let alone fix.

Event: Announcement of legislation to remove the two-for-one sentencing credits which, as Blatchford memorably describes, are handed out by judges "like bonbons".  Columnist response: nuh-uhhh!  Context and nuance, and, hell, basic factual information?  Missing.

The "real problem", pace Blatchford, is the slow pace of trials (especially criminal ones).  Let unexplained is quite why both the sentencing credit and slow trials can be real problems.  Are we only allowed one "real" problem when discussing anything as complex as the administration of criminal justice? Why? Sez who? And by means of what bizarre moral calculus does Blatchford conclude that according convicted criminals a two-for-one credit is not a problem?

Most egregious of all, however, is the collosally incorrect statement that "no one much wants to discuss, let alone fix" the problem of slow trials.  Really?  Really?  So when, say, the Attorney-General of Ontario announces measures which are intended to "reduce the time to trial and number of appearances by 30 per cent over the next four years", does that mean that the AG is "no one", or that this does not qualify as "much" or is it a failure to constitute "discussion" or "fix"ing?  Heck, when the Ontario Ministry of the Attorney General has an entire project devoted solely and exclusively to "reduc[ing] delay in Ontario's criminal courts", how is it possible that neither Blatchford (whose beat is crime) nor her editors (who beat is correcting Blatchford) know nothing about it?

(update: The "entire project" referred to in the last paragraph above is the Justice on Target initiative)

"Who is helped by treating her as a youth?"

You might recall that a couple of weeks ago I expressed some... let's call it skepticism... about the Globe and Mail's new-found admiration for sentences that actually, you know, had some teeth to them.  Yesterday I realized what the problem was: the Globe isn't interested in tough sentences, they're only interested in "tough" sentences in the context of the Orwellian milieu concocted by the Canadian criminal justice system - which is to say, sentences which aren't "tough" at all.  Take (please) yesterday's Globe editorial on the appropriate sentence to be given to "M.T.", the 15-year old girl behind the murder of Stephanie Rengel.

The Globe editorial writers have furrowed their brows and pronounced that, yes indeedy, M.T. deserves a "life" sentence (Chris Selley called the editorial "convincing" - since he evidently needed to be convinced).  The crime committed by M.T., as described by the Globe, was, and I quote, "monstrous", requiring a "strong response" to demonstrate "the value this society puts on life".  Well, I guess we're all pretty much screwed: if the strongest sentence which can be handed to M.T. is supposed to demonstrate the value our society puts on life, don't bother cashing in yours, 'cause you won't get enough to buy even a used CD.

Under the Youth Criminal Justice Act, even if given the most stringent possible sentence, M.T. will be eligible for parole in a maximum of seven years.  Which means she would walk out of jail completely free before she turned 23.  And that doesn't take into account day parole, for which she will be eligible even earlier.

This is a particularly humorous portion of the editorial:

Perhaps in five to seven years - let's hope it's at least six - she will not be ready. But perhaps in 10 or 12 she will be.

I love that.  Yes, yes, let's "hope it's at least six" - because, really, six years for participating in first degree murder, that's the proper response.  Five would just be unconscionably low, but "six" has nice whole integer even number roundness to it.

Even better:

Perhaps, too, she needs the threat of life behind bars to force her to deal with whatever made her wish to kill in cold blood.

Oh, absolutely.  Since actually participating in the murder didn't bring home any consequences for M.T., and since none of getting arrested for it, being tried for it or being convicted of it have succeeded in impressing on M.T. the seriousness of her crime, I'm sure that "the threat of life behind bars" will be just the thing that does it.  I'm sure there are unplumbed depths of stupidity out there - and I'm also sure that the Globe's editorial writers will be in the vanguard of getting to the bottom of them.

Nowhere in the Globe editorial is raised the question of whether the ludicrous sentences available under the YCJA are appropriate in and of themselves - nor is the bizarre intellectual and moral incoherence of the youth/adult sentencing scheme addressed.  Most glaring of all is the fact that the Globe never manages to address the issue which should animate these discussions: not "deterring" others, not "rehabilitating" the criminal, not even "protecting" the public - but the simple question of retribution for the crime committed.

Great Moments in Canadian Sentencing 03.15.09

It's always sort of cute when outfits like the Globe and Mail suddenly discover to their horror that, their prior protestations notwithstanding, some judges had out manifestly unfit sentences.  Mohammad Momin Khawaja, convicted of financing and facilitating terrorism, having shown no remorse, received a 10.5 year sentence, on top of the 5 years he's already served (with no credit for those five years).  Given that the maximum sentence was life in prison without the possibility of parole for 25 years, the sentence handed down begs the question of what else could possibly be needed to warrant the maximum sentence - as Dan Gardner notes, "If Khawaja does not deserve the maximum sentence, none does."  Indeed.  And unless the Crown elects to appeal this sentence, no one ever will get that maximum sentence. 

(There are, of course, those who think the sentence handed down is just hunky dory - from the above-linked CP report: "...academic Wade Deisman, who teaches police studies at Kwantlen Polytechnic University in Vancouver, couldn't disagree more. 'It works out to be about 15 years, and I think that sounds about right,' said Deisman.  'We live in this climate now where people just want longer and longer sentences. It's hard to know what's going to slake this appetite.'"  Totally.  People are just so mean when it comes to the sentencing of convicted terrorists.  More hugs for everyone!)

"ahead of the jailers and tormentors"

Chris Selley, Rosie DiManno and the Globe editorial board evidence once again why reporting, and opinionating, about criminal justice matters by the media is so often simply not to be trusted.  From misstatements of basic fact to outright lies to selective obfuscation in order to serve their predetermined political prejudices, the coverage of the Ashley Smith Report by the New Brunswick Ombudsman and Child and Youth Advocate has been almost uniformly pathetic.

Just a minor sprinkling of the errors and lies:

• Selley and the Globe insist on calling Smith "mentally ill" - she wasn't, as was determined on multiple occasions by certified psychiatrists and psychologists (see pages 15, 16 and 19 of the Report).  I know that generally we like to substitute the ideological opinions of the Selleys and Radwanskis of the world for trained professionals, but perhaps this once they could refrain from doing so.  Interestingly, DiManno seems not have gotten the memo, since her entire argument is based on the notion that, in this entire business, Smith was the only "sane" one.

• DiManno, in particular, seems to have some issues understanding basic concepts such as what constitutes being an "adult".  Ashley Smith was 19, an adult, when she died.  She was 18, an adult, when she was transferred to... wait for it... an adult correctional facility.  Within the first two sentences of her column, DiManno expresses shock that an adult was transferred to an adult facility, even going so far as to, incorrectly, label Smith as having "youth status".  By the end of her column, DiManno is reduced to calling the 18-year old Smith "a minor".

• Other times, they'll just make things up.  Like when the Globe asserts that Smith had been transferred "17 times".  Had they read the Report, they would know that they just made that number up out of whole cloth (or cribbed it from DiManno's column, which also contains the error).  She was transferred nine times (see page 7 of the Report).  The Globe, in getting all hysterical and describing the "Dickensian" conditions in which Smith was held, they get all het up about the fact that she was denied a mattress.  This is a lie.  As page 41 of the Report describes, she always had a mattress.  Except sometimes she would destroy her mattress, so it was replaced with an indestructible mattress.

• There's the pathetic dismissal of the severity of Smith's crimes, which underlies both the DiManno and Globe pieces.  DiManno makes it sound like as if Smith's biggest crime was being a poetic iconoclastic teenager.  The Globe prefers to call her crimes "petty", as if she had been caught stealing comic books from the corner store.  Her crimes weren't petty.  She stalked a member of her schoo's staff (page 15).  At the age of 14, she was physically assaulting strangers on the street and harassing people, to the point where she got banned from the public transportation system and, finally, charged by the police (page 15).  At the age of 15, there were more instances of physical assault (page 16).  On the three occasions when she was placed in foster homes, her "violent behaviour" resulted in her being removed from them (page 18).  While in secure custody, she repeatedly assaulted staff (pages 19-20).

• Perhaps the most egregious stupidity fomented by the Selley, DiManno and Globe pieces, however, is the notion that Smith was somehow the victim of an uncaring, brutal system which locked her up and threw away the key at the first sign of any hint of teenage defiance.  Nothing could be further from the truth.  Here is a small sampling of the hysterically long list of "non-punitive" (and entirely ineffective) "alternative" methods used with Smith: throughout 2001-02, Smith's teachers attempted a variety of "in-school" methods to ensure her compliance with school rules and temper her disruptive tendencies - none of them worked.  Six school suspensions followed.  Then followed seven placements at an "alternate educational site".  Then followed a five-week suspension, followed by more placements in "alternative educational institutions".  Then, as a result of the numerous crimes she was committing, she was sentenced to probation and enrolled in the "Instensive Support Program".  Then she was sent to the "Youth Treatment Program".  Then, all else having failed, she was finally sent to "secure" custody at the New Brunswick Youth Centre.  Releases on probation resulted in further criminal acts, followed by further sentencing to secure custody.  To call these "Dickensian" conditions is pathetic - either the Globe editorial writers (who penned the phrase) have never read Dickens or never read the Ashley Smith Report; given the usual intellectual calibre of people writing those editorials, I'll wager the answer is "both".  To argue, as Selley does, that "wholesale reform" is necessary, indicates that he evidently literally has no idea what happened with Ashley Smith.  To argue, as DiManno does, that Smith was merely high-spirited is, simply, delusional.  Regrettably, that's the level of public discourse we are treated to by our media.

That Boy in the Library

One of the most under-appreciated Canadian blogs out there is Michel-Adrien Sheppard's Library Boy.  Always packed with information, including deep linkage, on a variety of topics, it should definitely be in your RSS reader.  Yesterday's post, about the new federal criminal legislation, is typical: information and links to the bills themselves, along with helpful links to a slew of parliamentary reports on mandatory minimum sentences.

"just seem odd"

Chris Selley called the National Post's editorial on the government's recently announced "tough on crime" measures "terrific" - which can only mean he was reading a different editorial from the one which got published by the Post. The editorial, which comes off like it was written by about three different people, each with their own agenda to cram, sardine-like, into 800 words, is an unholy mess of weak thinking, weaker argumentation and, weakest of all, prose construction.

In the second and third paragraphs, we start with the complaint that the new law will not result in more first-degree murder charges.  Unless, of course, it does.  The editorial doesn't manage to get any more coherent from there.  ("How will the Crown respond?  In some cases, we suspect, not by carrying out more first-degree prosecutions, but by bargaining down to manslaughter ... Meanwhile, the tougher-minded prosecutors will be ransacking every file that crosses their desk for the slightest evidence of "gang activity," however meagre.")  But really, even those bold predictions are but dust on the wind (and here readers are encouraged to imagine the gathered editorial writers shaking their heads in wearied frustration) - "we can have no sure idea of the overall effects for many years".  Years people!  We have an editorial to write today!  You cannot possibly expect us to withhold judgment on the efficacy of these proposals!

The next argument is that the courts will inevitably muck up the implementation of the law, by "decid[ing] that the proviso cannot possibly mean what it says in plain English, and [proceeding] to erect an unpredictable body of doctrine around it" - probably not wrong in itself, but it's unclear whether this is a criticism of the legislation, the courts or the entire project of the rule of law (since having courts interpret legislation is, er, part of the deal).  If the courts are that intransigent about getting "tough on crime" (a conclusion with which I have a great deal of sympathy), would we not be better served by the editorial actually saying that, rather than oblique criticism?

From there, things only get stranger - why, quails the editorial, does the proposed legislation only call for tougher measures when offences are committed against "justice system participants" (i.e., court officials, police officers, judges, etc.)?  Why not, instead, clarify that "courts should put denunciation and deterrence first when dealing with crimes against any person"?  Both excellent questions.  The apparent answer?  Because the Liberals and New Democrats "could not possibly" support such a measure (or, in its original iteration, because the Tories could not possibly find Liberal or NDP support, which makes it sound as if the problem is one of detection rather than existence).  Again, is this a criticism of the legislation, or the hard-headedness of the liberal opposition?  Is the argument that the Liberals and NDP don't mind it when us "poor bloody members of the public" get killed?  If the latter, why not just say so?  At least have the courage of your convictions and get the argument out there.

In the final few paragraphs everything flies right off the rails.  The drug trade, we learn, is "dominated by society's most sociopathic hard cases, social dropouts and self-proclaimed outlaws".  Punishing these malcontents is exactly the wrong thing to do, the editorial thunders.  Why, increasing the punishment will only make those dominating the drug trade even more sociopathic, more socially dropoutish and infinitely more outlawy.  Which raises innumerable questions, but here's a sampling: so, then, are we admitting that criminals actually do engage in rational risk-calculation (to the contrary of the usual editorial board bafflegab)?  If so, doesn't that mean that deterrence actually does work?  Wouldn't we then want to deter as much as possible by erecting ever-more strict punishments?  And, if we've managed to create this fancy filtration system which identifies and segregates the sociopathic outlaw dropouts, shouldn't we be arguing in favour of increased penalties against them in order to get them off the streets? 

Perhaps that is to miss the point, though.  After all, this far into the editorial, the editors have decided to throw up their hands at the futility of it all: "But every once in a while, a police officer goes down, notwithstanding the Criminal Code's special sanctions against killing police officers."  It's a glorious sentence, reflecting a glorious argument: we've got these fancy provisions against killing police officers, but they get killed anyway, so really, what's the point, huh? What's your fancy provision against killing police officers gotten you, huh? Just more dead police officers! Not so smart now, iz ya?  Which would be an excellent case to make, if it made the barest lick of sense.  We have "special sanctions" against committing, say, murder, too - but murder gets committed anyways.  Is that somehow an argument against making homicide illegal?

Regrettably, the only interesting and cogent observation of the entire editorial is buried in the last sentence: "Chalk it up as yet another toxic side-effect of our society's misguided war on drugs."  Indeed.  Wouldn't the entire editorial, which achieves the amazing accomplishment of being both turgid and limp, have been better served by exploring the actually relevant question of drug de-criminalization? 

UPDATE: This Dan Gardner column, which could function as the editorial hinted at in the last line of the Post's, really does warrant the descriptive "terrific".

"little has changed"

This is what happens when you remove any disciplinary measures from the school system:

And as a result, these girls felt bold enough to beat her up.

Last month, Lindsay was sitting at the back of a packed bus when the group began pelting her with pens. One of the bullies then took her chewed gum and stuffed it down Lindsay's shirt. Another ripped open a condom and smeared the spermicide all over Lindsay's face and her new black jacket.

Humiliated, gagging and sobbing, their victim tried to break free. But the girls weren't done.

"They threw me face first against the glass," Lindsay recalls in a small voice. "I kept calling out to the bus driver -- 'Help me, sir, help me please' -- but he didn't even stop. Nobody helped me. I go to school with all these kids on the bus and nobody helped me whatsoever."

As she fought her way to the door, crying and trembling, one of the girls ended the assault by punching Lindsay in the face.

The brilliant part of the story is that the school superintendant truly, honestly, deeply believes that the school board did everything in their power to address this bullying:

Carol Speers, the superintendent of education, insists West Credit has an anti-bullying program and has been very responsive to Lindsay's complaints. They set up a mediation between Lindsay and the mean girls at the end of October, offered her coping strategies, referred her for counselling in November -- which finally came through just this week -- and organized a co-op for her this semester so she can limit her time at West Credit. "It's unfortunate that Lindsay perceives the school wasn't doing anything for her. They've been supporting her as best as they can."

In other words, people commit a crime, and the response of the school system is to blame the victim, marginalize the victim (even going so far as to keep the victim off school property) and do absolutely nothing to those committing the crimes.  And because there are no consequences to the officials and administrators whatsoever for their failures, none of this will change any time soon.  That family should sue everyone, from the board to the superintendant to the teachers to the parents.

Great Moments in Canadian Sentencing 02.20.09

Another innocent victim enjoys the fruits of our criminal justice system:

The body of 37-year-old Kerrianne Parks was discovered in her small Sudbury, Ont., home on the afternoon of Jan. 24, the result of an apparent stabbing.

...Rattray, 44, was charged with second-degree murder. The charge has since been upgraded to first-degree murder. If convicted, Rattray will receive a life sentence.

Parks' death could be the final chapter in Rattray's long and escalating resume of terror. Some question why justice officials didn't stop him when they had the chance. [BT: and just who are these mysterious unnamed "justice officials"?]

... His first conviction resulted from a 1982 Edmonton break-in. During the next 16 years, he amassed more than two dozen other convictions across Canada

... Rattray was sentenced to three months in jail for the assault and one month for "exposing his private person" to the nun.

... In 1998, a Napanee, Ont., woman allowed Rattray to stay in her home. She woke up to find him in her room with a butcher knife, threatening to kill her and demanding the keys to her car. While unlawfully at large in 1999, he befriended a 10-year-old boy while camping and forced the child's hand onto his genitals.

He then "violated a young girl" in 2000, according to the documents. In 2001, he befriended a Regina woman and stabbed her in her bedroom after she rejected his sexual advances. While at large two months later, he assaulted another woman and stole her car. Rattray was locked up for several years and denied early release because he was deemed unsafe. But when his sentence expired, corrections officials had to release him.

Saskatoon police placed him under a "peace bond," requiring Rattray to report his wherabouts. As Rattray has done on dozens of previous occasions, he violated orders imposed by the justice system and fled. He was at large until January, when he was arrested in connection with Parks' death.

It's just so weird how this stuff happens, eh? Completely out of the blue! No one could possibly have predicted it!

"we should do so based on facts"

Slate publishes the useful "Five myths about prison growth" which should be required reading.  The lessons for Canada are somewhat oblique since it focuses on US prison numbers, but since much of the Canadian debate on sentencing tends to consist of pointing to the US and shrieking (see, e.g., the Toronto Star's coverage discussed here).  The most relevant bits from the Slate piece:

Myth No. 1: Long sentences drive prison population growth. ... Not only is the absolute amount of time served low, in general, but in many states that amount remained flat over much of the 1990s. So what is actually driving prison population growth? Admissions. Far more offenders who in the past would have received nonprison sentences are being locked up for short stints, driving up the overall population.

Myth No. 2: Low-level drug offenders drive prison population growth. ... Only 20 percent of inmates in prisons (as opposed to jails) are locked up for drug offenses, compared with 50 percent for violent crimes and 20 percent for property offenses ... if we were to release every prisoner currently serving time for a drug charge, our prison population would drop only from 1.6 million to 1.3 million.

Myth No. 3: Technical parole and probation violations drive prison population growth. ... the number of parolees returning to prison is rising only because the number of people out on parole is rising.

Myth No. 4: In the past three decades, we've newly diverged from the rest of the world on punishment. ... if we look back historically at the lockup rate for mental hospitals as well as prisons, we have only just now returned to the combined rates for both kinds of incarceration in the 1950s [emphasis added]. In other words, we're not locking up a greater percentage of the population so much as locking people up in prisons rather than mental hospitals. [BT: and guess what you can correlate "the 1950s" and "the 2000s" with?  Right - lower crime rates.  Why, it's almost as if putting criminals in prison has some kind of bizarre, totally unknowable effect on the crime rate...]

Myth No. 5: The incarceration boom has had no effect on crime levels. ... We have to ask what the crime rate would have been but for a given number of prisoners, and simple population trends cannot answer this. The best numbers available, controlling for a host of challenging statistical problems, suggest that the growth in prison populations contributed to up to 30 percent of the crime drop during the 1990s.

[UPDATE: I had a snarky conclusion to this post which was entirely gratuitous, so I've deleted it.  Suffice it to say it's nice to have these "myths" and the counter-evidence collected in one spot.]

"things we really need"

When, in response to rising crime in Toronto schools, the police suggested putting officers into the schools in order to provide some discipline (since the teachers were obviously unwilling or unable to provide it), there were the usual howls of outrage from the usual suspects:

The idea of police Chief Bill Blair – with police picking up the tab – ran into opposition from a handful of trustees and parents, who felt uniformed, armed officers were no solution to the safety troubles in schools. A panel headed by lawyer Julian Falconer, created in response to the shooting death of Jordan Manners in May 2007, recommended better police-youth interactions, although Falconer has said he opposes armed officers in schools. No officer has been stationed at C.W. Jefferys Collegiate, where Manners was killed.

Trustee Sheila Cary-Meagher, a vocal opponent, said despite the new statistics, armed officers are no solution. "The idea to bring (armed) cops into schools breaks my heart," she said. "It's so against the principle of education.

(As an aside, I think it's sweet that the "idea" of cops in schools "breaks her heart" - the actual commission of violent crime in schools, not so much.)

So, once the adults got around to being adults, they sent in the police.  Mirabile dictu, guess what happened?

The 22 Toronto public high schools assigned a police officer are reporting a drop in suspensions and criminal charges against students...

Funny how that happens...

"the authors played a similar game"

This is a decent example of why it's hard not to love Colby Cosh.

Police Misconduct and Evidence

A judge of the Ontario Court of Appeal said he worries Canadians will treat the Charter of Rights and Freedoms with disdain if courts routinely throw out evidence of serious crime because it has been obtained through police misconduct.

Speaking at a legal symposium in Toronto yesterday, Justice Michael Moldaver said it's time for courts to develop a more "nuanced" approach to deciding whether a prosecution should grind to a halt when police break the rules.

The article goes on to describe the response of Frank Addario, president of the Criminal Lawyers' Association, thusly:

... unless judges are prepared to make the tough calls and throw out evidence obtained in violation of a suspect's constitutional rights, there's little chance police will stop breaking the law.

Instead, "the message (from the courts) is, 'Whenever police are going to investigate a serious crime, take chances with civil liberties, cut corners – if you hit the jackpot, we will reward you by admitting the evidence,' " he said.

Both concerns are absolutely correct.  Both concerns are also absolutely incorrect in their proposed solutions to the issue.  What is happening is a disconnect between the policy goals and incentives which are being offered and the impact on society - namely, the mechanism devised to keep police officers "in line" is directed not towards police officers, but towards society at large.  In other words, if a police officer violates the Charter, does the police officer face any direct sanction from the court or his or her employer?  No.  Instead the evidence is excluded and the case usually collapses.  Does that affect the police officer in any meaningful way?  No.  But it does mean that potentially dangerous individuals, i.e., the accused in the case, are let off with no sanction.

Arguing that this is a non-sensical result is hardly restricted to one or the other side of the ideological divide.  Whatever else someone wants to say about Alan Young, "raving rightwing lunatic" doesn't often enter the conversation.  In his book Justice Defiled: Perverts, Potheads, Serial Killers and Lawyers, Young makes a similar argument to that offered by Justice Moldaver: why should the rest of us have to pay the cost in terms of diminished security because some police officer screwed up?  Shouldn't he or she be the one held responsible?  Why should a(n accused) criminal garner a windfall (in the form of a stayed prosecution) if the Charter was violated during the course of an investigation?

The resolution to this issue lies not with the judiciary but will instead be a political one: Charter violations should result in sanctions against the officer who committed the infringement - that helps root out officers who aren't respecting Charter rights and preserves the ability of the courts to effectively try suspects.  Heck, if necessary expedite private rights of action against the government for Charter violations - but don't let a broken mechanism act to the discredit of the entire apparatus.

Great Moments in Canadian Sentencing 02.01.09

My daily RSS feed has provided some absolutely amazing fodder for this regular installment over the last six or so months.  Herewith some of the better moments which I neglected to cover at the time:

• Three women tortured a woman to death (they "beat, burned and cut Ms Friars, glued her eyes shut and carved the word 'Rat' into her forehead").  In all likelihood, each of those three torture-murderers will serve less than ten years in prison.  Two of the three were sentenced to 8.5 years in prison (which means, even without counting credit for time served, they will be given statutory release in around six years).  The final killer was sentenced to "life" without the possibility of parole for twelve years - which means there is a roughly 85% chance that, after receiving the usual judge-granted "credit" for time served prior to sentencing, she will be on the streets (having been granted "day parole") in less than eight years (for an explanation of how day parole calculations work see here).

• "He kicked and hit her hard enough to crack four of her teeth and leave most of her body black and blue for weeks, all the while trying to drag her behind a building. During the assault – as she begged for mercy and offered her cellphone and iPod in exchange for her release – he told her he was going to rape and murder her, she said."  Sentence?  Less than two years incarceration, and "eligible for parole" in about twelve months.

• "The knife-wielding man who executed a fatal attack on an Oshawa family had a history of violence and spent much of the last decade in and out of courtrooms.  Gino Petralia, 47, had been charged with assault on three separate occasions, two in 2004 and one in 1998. He has also faced charges of impaired driving, failure to comply and fail to appear. Most recently, he was arrested in January for causing a disturbance in a public place. He had been scheduled to appear in Oshawa court later this month."  Weird, huh?  It's almost as if there was, I don't know, some kind of signals or something, some sort of indications that the courts could have used to draw the conclusion that they should incarcerate an obviously violent, unstable individual who posed a serious risk to people around him.  Nah, I must just be seeing things.

• "A judge has sentenced a Saskatchewan teenager as an adult for killing a Good Samaritan.  The 18-year-old man has been sentenced to life in prison with no chance of parole for seven years.  The teen was convicted of second-degree murder after stabbing Larry Moser on Boxing Day 2006 outside of a Regina convenience store.  Mr. Moser was trying to help a store clerk who was fighting with some teens over a bag of sunflower seeds. ... The judge said the youth exhibited anti-social criminal behaviour and only life-long state control of the teen will protect the public."  "Life-long state control", eh?  Which means he'll likely be out on day parole after about four years (more than 60% of applicants convicted of second-degree murder are granted day parole on their first application), then almost certainly out on full parole at the seven year mark (between 75-85% of second-degree murderers are given full parole when eligible).  So for killing an innocent person in cold blood, the poor dear will be wandering the streets (and you aren't allowed to know his name because he was a minor) in less than five years.  Best of luck with that whole "protection of the public" thing. (See here and here for an explanation of how parole functions, particularly for second-degree murderers.)

• "A Brampton gang member, already under house arrest for drug trafficking and firearms offences, has been charged with murder in the death of a 29-year-old man at an engagement party in Mississauga last weekend."  Ah, "house arrest".  You always do such a good job.

• "A man accused of slaying two women in their east-end home Monday morning had been out on bail since March while facing charges of sexual assault, a police source said yesterday."  This one actually just keeps getting better and better as you read it.  So, guy is "facing charges of sexual assault" - which is a little banal for the circumstances behind those "charges", namely, attacking a woman from behind with a brick and then anally raping her.  But remember how I said it got better?  Here goes: that wasn't the only sexual assault he was charged with - in a separate incident, he raped another woman and attempted to strangle her with a rope.  But wait!  It doesn't stop there!  Between the earlier attacks and this latest one he had been convicted of attacking his mother in her home.  So, the unnamed judges and correctional service administrators who keep letting this fine upstanding citizen waltz out of prison appear to have at least two rapes and now two murders to their credit.  Brava!

• This is one of those stories that really only could be found in the Toronto Star.  Joe Fiorito writes with chagrin and concern about a "friend" of his who has been attacked on multiple occasions by the same individual, an individual who, during the second of the assaults, also attacked another woman.  But it's okay! writes Joe, the court has put a "tight leash on woman puncher" in the rather inelegant wording of the article's title.  What does that "tight leash" look like?  I quote, "lengthy probation" and an order not to go near the victim.  Which is odd, because the "woman puncher" is generally under a societal imprecation not to, I don't know, violently assault people - but he doesn't seem to have taken that to heart.

• "A "habitual drunk driver" whose vehicle pushed a Rockwood, Ont., couple into the path of a GO train has been sentenced to 7 1/2 years in prison."  Wait for it!  "At the time of the crash, he was awaiting trial for two previous drunk-driving related incidents, including a collision with a tractor-trailer on Highway 401, and was prohibited from being behind the wheel of a vehicle and consuming alcohol under bail conditions."  Prohibited!  It's amazing that such "prohibitions" seem to have - what's the right phrasing here - no effect whatsoever, innit?

• Here is the Moldaver Paradox in full effect: "Tiffany Pinckney, 23, weighed just 84 1/2 pounds - and resembled a human skeleton - when she was found lying dead on a filthy carpet in the feces- and urine-strewn basement of her residence on Fairwind Dr. in Mississauga. ... Justice Joseph Fragomeni described the circumstances of the case as among the worst he's ever experienced as a trial judge."  Among the worst he's ever experience as a trial judge.  So outraged was Justice Fragomeni that he insisted that "society demanded ... a lengthy period of incarceration in a federal penitentiary".  Demanded!  So what's the sentence he hands down?  Nine years.  Which means that the woman who caused the "slow, painful and lonely descent into death" of Tiffany Pinckney, the woman who inflicted a "tragic, horrific and senseless" death on a "vulnerable" young person, will be eligible for day parole, i.e., walking around free, in six years.  The only thing which could make this story even better is the sentence handed down to the brother-in-law of Tiffany Pinckney, who pleaded guilty to criminal negligence causing her death: two-years of house arrest.

"they failed abysmally"

In today's installment in the Toronto Star's continuing "nobody should ever, like, go to jail, like, ever" series, we are happily treated to more of the same: lies, misdirection and obfuscation.  For whatever reason, Michigan has come under particular scrutiny - yet, despite the best efforts of the Star's reporters, the facts resolutely refuse to conform to the narrative they wish to impose.

Let's start with this story (from the weekend), written by Sandro Cotenta and Jim Rankin.  In the middle of it is buried this passage:

Canada is starting down a road well-travelled by the United States, where it is becoming clear that mandatory sentences have been mostly ineffective and financially disastrous.

Michigan, for example, has 50,000 inmates and a state prison bill of $2 billion – an amount equal to Canada's entire prison spending. Ironically, two minimum sentencing measures aimed at guns and drugs, introduced in the '70s, led to more mandatory sentences for other crimes and an astronomical increases in incarceration rates in that state. The number of state prisons exploded from a handful to close to 50.

However, the crime rate there did not decrease.

Let's start with the first portion quoted above: "[in] the United States, where it is becoming clear that mandatory sentences have been mostly ineffective".  You could read the Toronto Star's entire excrutiatingly long magnum opus on imprisonment and be left entirely uninformed of the fact that violent crime rates in the United States have plummeted over the past fifteen years (at a much steeper rate than Canada's crime rates have fallen) to levels not seen since the 1960s - at precisely the time when mandatory minimum sentences have been most widely deployed.  Now, is that causation or correlation?  Maybe a little of both.  But it is certainly not "becoming clear" that mandatory sentences have "been mostly ineffective".  Criminologists (who, as a profession, seem to have a bias against actually punishing criminals) have been desperate to disprove any link between putting people in jail and falling crime rates - and they've mostly failed in those efforts (see here for an example).

But that's almost quibbling, given what the reporters next indulge in - which is sleight of hand.  "However, the crime rate there did not decrease".  That's what they say.  Bereft of context, bereft of reference, bereft of, well, anything.  "Did not decrease" - from when to when? Compared to what?  Who knows?  Michigan is never again raised in the article.  But remember the conclusion which you, as a reader, are meant to walk away with: in Michigan, they imprisoned more people, but the crime rate did not decrease.

Fine.  Today, Betsy Powell really drills down on Michigan.  Bad Michigan!  Here's what Betsy had to say:

Responding to law enforcement lobbying in the `70s and `80s and the perception that drug-fuelled crime was out of control, politicians across the United States enacted tough sentencing laws believing they would snare major drug dealers and deter drug use while showing the public they were being tough on crime.

Michigan's mandatory minimum sentences for drug offences, including the so-called "650-Lifer" law that locked up Larson, were viewed as the harshest in the nation.

Today, Michigan is lock-up central. It has 50,000 inmates – Canada, with more than three times the population, has 32,000 – and 50 correctional facilities, 35 built since 1985.

But the state's "mass incarceration experiment" has achieved none of its stated objectives, says Laura Sager of Families Against Mandatory Minimums (FAMM).

"The dividends were broken families and broken communities not less crime."

... If the goal of locking up more people is to increase safety than Michigan "should be Shangri-la," said Sager in an interview in a tiny FAMM office in Lansing, the state capital 150 kilometres west of Detroit.

Yet Michigan's violent crime rate in 2006 was 562 per 100,000 people, according to the Citizens Alliance on Prisons and Public Spending. Detroit alone had 400 homicides last year.

Well, at least this time they stoop to actually providing us with a statistic.  Left completely unaddressed, however, is whether that violent crime rate is higher, lower or about the same as before the mandatory minimums were introduced.  Presumably, we're meant to look at "562 per 100,000" and faint away in horror (that the Canadian violent crime rate is 930 per 100,000 likewise is best left buried (and, yes, thanks, I'm aware that you can't do one to one comparisons of the violent crime rate because of differences in definitions and reporting)).  We have no idea what Powell is using as a reference point when she implies that the crime rate has not fallen.  Other than that 35 incarceration facilities have been built since 1985, and a sidebar which indicates that the prison population has increased by about 350% since 1984, we're not sure what either Powell or, previously, Contenta and Rankin, are talking about.

So guess what?

Michigan's violent crime rate has plummeted.

That "562 per 100,000" number which Powell was kind enough to provide is, let's see, about a 25% drop from either 1984 or 1985, take your pick (when violent crime rates were 760 and 734, respectively) and a 30% drop from the peak of the violent crime rate in 1986.  And 562 is the highest the violent crime rate has been this decade.  The last time the violent crime rate in Michigan was consistently this low was in the 1960s.  But I guess things are so much more complicated when you actually look at the underlying facts.

Counterfeiting Down!

The coverage devoted over the past couple of days to the recent StatsCan release about Canadian crime rates can best be described as "hallucinatory".  Where news reports do not rely on obfuscation and misdirection, they are forced to fall back on outright lies.  As an example of the latter, check out this passage from this Toronto Star story:

"It's not likely that it's easy to draw cause," said criminologist Neil Boyd, an author and professor at Simon Fraser University. "Any change on a year-to-year basis isn't likely to be significant unless it's extremely dramatic."

Although the effect of the Baby Boom generation on the crime rate is lessening, the aging of the population remains the single most important reason why violent crime rates have dropped over the past 30 years, said Boyd.

Um, no.  Would it have killed Neil Boyd, or, say, Toronto Star writer Francine Kopun to actually read the StatsCan report on which they're commenting?  Because if they would have deigned to do so, they would have discovered that "violent crime rates" have not "dropped over the past 30 years", they have skyrocketed, as helpfully demonstrated by this handy little graph contained in the middle of the StatsCan report:

What's that, nearly a doubling of violent crime rates over the past 30 years?  Nearly a quintupling over the past 40 years?  That the country's largest newspaper feels comfortable in printing flat-out lies should be cause for concern.

Have either Boyd or the reporter bothered themselves to look, maybe they would have noticed the following little nuggets in the StatsCan report:

The youth crime rate, which has remained relatively stable over the past decade, declined 1.5% in 2007 following a 3.3% increase in 2006. The 2007 drop was due to a decrease in non-violent crimes.

The youth violent crime rate remained stable in 2007 after increasing steadily over the past two decades. The 2007 rate was more than double the rate reported in the mid-1980s.

Or that, say, the rates for the most violent of "violent crimes", like, f'rinstance, the most serious assaults have increased over the past ten years by rates of, oh, 32.3% (assault level 2 - involving use of a weapon/bodily harm) or 18.6% (assault level 3 - aggravated).

Or, maybe, that the drop in the total crime rate (i.e., violent and non-violent) over the last ten years is driven largely by drops in property crime?  Scroll to the bottom of the StatsCan report, and you'll be pleased to learn that while, say, theft over $5,000 rates droped by 32.7% over the last decade, things like "forcible confinement/kidnapping" have increased by more than 120%.

Even with all the attempts by media outlets to spin the story by focusing on the year-over-year results (which even someone like Neil Boyd thinks is a bad idea) and efforts to commingle drops in crimes few people actually spending much time worrying about with massive increases in crimes people actually fear, the Canadian crime rate is, what, three times higher than it was in 1962?

Were headlines writers across this country more honest, rather than "CRIME RATES DROP!" being plastered across newsstands in 248-point font, we would be seeing "MINISCULE DROPS IN CRIMES YOU'RE NOT WORRIED ABOUT STILL DON'T PUT MUCH OF A DENT IN OUR ABSURDLY HIGH VIOLENT CRIME RATES!" - but I suppose that wouldn't "fit", now would it?

Great Moments in Canadian Sentencing 07.14.08

More excellent work:

Judges are routinely turning their backs on a special federal fine they are supposed to levy against lawbreakers to help support crime victims ... The Criminal Code dictates that the fine is to be imposed unless an offender can prove undue hardship, but the study, conducted in New Brunswick, found the fee was waived in two-thirds of 62,000 cases over five years, costing the province millions of dollars in lost revenue for victims' programs.

... The study was conducted to determine why victim funds have stagnated since the early 1990s, despite a 1999 Criminal Code change that made surcharge collection all but mandatory.  ...

"It appears that mere assertions of an inability to pay by offenders or perceptions by judges that the offender cannot pay are sufficient to prove undue hardship," said the report.

None of which should come as much of a surprise to anyone who is paying attention - our courts have consistently shown a strong bias against actually doing anything about meaningfully addressing the victims of crime or the perpetrators thereof.  Sometimes you'll hear the excuse that judges are not being given the right "tools" - but this provides a nice nugget of proof that lack of "tools" is hardly the issue.  This is a particularly nice touch:

...While judges are supposed to justify their decisions for waiving charges, the information was not included in 99 per cent of 861 court files that were reviewed for the study.

For reference, the "victim surcharge" provisions of the Criminal Code can be found in Section 737.

Cousin of Sam

At dinner the other night, one of my fellow entertainment lawyers was kind enough to gently point out to me that I got something wrong last year when I wrote about "Son of Sam" laws in Canada.  After recovering from the shock engendered by learning that someone actually reads this blog, I thought it prudent to take the opportunity to correct myself.  As I wrote at the time:

Although it's not precisely the same situation, it's worth noting that there are no "Son of Sam" laws in effect in Canada.  The most recent attempt to pass such legislation (which would have had the effect of transferring a convicted criminal's copyright in their writings to the Crown) was, apparently, in 1998, when Liberal MP Tom Wappel tried to get a private member's bill passed the proposed legislation was rejected by a Senate committee, after having passed third reading in the House.

I got that bold part way, way wrong.  The only sense in which I was correct was that there was (and remains) no "Son of Sam" law in effect at the federal level.  In Ontario, at least, a "Son of Sam" law in indeed on the books: the Prohibiting Profiting from Recounting Crimes Act, 2002, which itself was an effort to update (and which repealed) the Victims' Right to Proceeds of Crime Act, 1994.  The act does not appear to have been the subject of a reported decision thus far.

Great Moments in Canadian Sentencing 05.31.08

A couple of items to note:

• Serial Rapist Is Getting Older, So Let's Not Be Mean To Him

A serial rapist who escaped custody and broke into a Toronto librarian's home, sexually assaulting her at knifepoint, has been spared from being declared a dangerous offender.

Instead, Ontario Superior Court Justice Arthur Gans sentenced Richard Lavallee to 14 years in prison, followed by 10 years of close supervision as a "long-term offender."

Lavallee, 52, suffers from a psychosexual disorder and has raped seven women, mainly older than him at the time. But he can be controlled in the community provided he gets treatment and close supervision, the judge said.

... He has 40 criminal convictions and has spent more than half his life in jail.

In 1995, he escaped from custody a third time and broke into the 42-year-old librarian's home in east Toronto. He threatened her with a knife and attempted to have sexual intercourse, leaving her cut and bruised. He was only arrested on this sexual assault in 2005 after his DNA was matched to blood in her car, which he stole.

But his behaviour over the past 10 years has improved and his advancing years appear to be diminishing his criminal urges, the judge said.

Bravo!  Perhaps the eighth woman he rapes will have better luck. 

• Ontario Court Discovers Time Travel Technique

The day after admitting he killed a woman and dumped her body on a rural road, a St. Catharines man was released from jail.

Judge Stephen Glithero sentenced Wayne Ryczak, 55, to one day in jail yesterday for the death of 29-year-old Stephine Beck. The one-day sentence is in addition to time Ryczak served since his March 5, 2007, arrest – time the judge said was equivalent to 30 months.

"Devastated, we're devastated," Beck's mother, Alice Dort, said from her Nova Scotia home. "This is just so unbelievable. There's no justice. None whatsoever."

The Crown asked for seven to 10 years in jail. Ryczak's lawyer requested two years less a day to be served in the community.

Glithero said a 30-month sentence would be appropriate and Ryczak had served it. He was also given three years' probation.

Excellent!  Let's see - he's arrested in March 2007 and sentenced in May 2008 - a period of 14 months, and yet the court finds that he "had served" 30 months.  Shouldn't the details of this amazing discovery be shared with the rest of us, and not limited to just convicted criminals?

The Great Canadian Crime Comic Caper

The publication of The Ten Cent Plague: The Great Comic Book Scare and How It Changed America, written by David Hajdu, has prompted a slew of stories in the media about the mid-1950s efforts in the US to censor the contents of comic books.  Canadians, being innovators in all things, can take pride [/sarcasm] in the fact that we were well in the vanguard on this one: Canada made it illegal to publish or sell "crime comics" nearly five years before the US Congress began looking into the matter.

Chapter One of Under Arrest - Canadian Laws You Won't Believe provides a detailed examination of the history of the enactment of the "Fulton Bill", as well as the history of prosecutions thereunder.  Even better, the "crime comics" provisions of the Criminal Code remain in effect, as Sections 163(1)(b) and 163(7) - so it is technically still illegal in Canada to sell a crime comic.

"not only was there no harm, there was no foul"

Buried in the Wheels section of today's Toronto Star is an interesting story about Toronto police officers ticketing for an alleged "offence" which simply doesn't exist:

Diamond flicked his headlights at oncoming traffic.

As you would. And as you would, most of the oncoming traffic did slow down.

Now, still assuming, perhaps naively, that slowing traffic down to make the roads safer is the objective of radar (it never works, but that's a story for another day), you'd think the cops would be happy that Diamond was assisting in their cause.

You'd think they'd want everybody flashing their headlights, all the time. Who'd take a chance at speeding then?

But no, stationed at the west end of the bridge were a couple more cruisers, pulling people like Diamond over for warning people about the radar trap.

$110 and no points.

As the writer notes: really, is there nothing more serious going on in this city such that police management thinks it's a worthwhile expenditure of time and money to not only (a) set up a speed-trap, but (b) set up a separate trap for people who tell others that there's a speed-trap?  And then run this sort of garbage through the court system, thereby wasting even more time and money?  Cripes.

"appeared to limit the application"

It's nice to see that the full-throated freakout over the scheduled execution of an admitted multiple murderer is continuing.  It would be even nicer if, in the process, the media could manage to get basic facts correct.  Joan Bryden writing for the Canadian Press:

Cotler said the new policy flies in the face of Canadian law and the Supreme Court of Canada, which has ruled – in a multiple murder case, no less – that the death penalty constitutes cruel and unusual punishment.

(The "no less" is a nice touch in a straight news piece, by the way.)  Either Irwin Cotler or Joan Bryden should engage in some basic research.  You don't even need to wander into a law library - a quick Google search will do.  Had they bothered to take that step, they would learn that, to the extent the Supreme Court of Canada has talked about the issue at all, they have ruled the precise opposite of the proposition advanced by Cotler and/or Bryden.

This article provides a helpful overview of the matter.  But to summarize: in 1976, the Supreme Court of Canada ruled that the death penalty did not constitute "cruel and unusual punishment" for purposes of the Canadian Bill of Rights.  It should be noted, however, that that ruling took place before the legislative abolition of the death penalty, and prior to the introduction of the Charter of Rights and Freedoms, so there's at least a vague argument that it represents outdated law.  Fine.  What has the Supreme Court of Canada had to say about the death penalty in the Charter era?  Helpfully, in the Kindler case, they decided to tell us.  Here's the answer: extraditing a convicted multiple murderer to face the death penalty in the United States does not violate the Charter.  The only pronouncement that "the death penalty constitutes cruel and unusual punishment" under Canadian law came from the dissent in that case - in other words, the written decision which a majority of the court disagreed with and which does not represent the law in Canada.  Not that the Canadian Press will let that stand in their way...

UPDATE: Well, this is embarrassing.  Who's the dumbass?  Bob's the dumbass - because I completely missed a Supreme Court case, and thereby failed to present a full analysis.  As helpfully pointed out in the comments, the Supreme Court of Canada, in 2001, in U.S. v Burns, ruled that extraditing an accused to face a trial for murder, without seeking assurances that the death penalty would not be sought by the prosecution, did violate the Charter (specifically, section 7), in those particular circumstances.  As the Court stated:

We agree that the Canadian Charter of Rights and Freedoms does not lay down a constitutional prohibition in all cases against extradition unless assurances are given that the death penalty will not be imposed.  The Minister is required (as he did here) to balance on a case-by-case basis those factors that favour extradition with assurances against competing factors that favour extradition without assurances.  We hold, however, for the reasons which follow, that such assurances are constitutionally required in all but exceptional cases.

In other words, in all but the most exceptional circumstances (the criteria of which are not set out by the Court), Canada can only extradite someone if Canada seeks assurances that the death penalty will not be imposed.  (I should point out that Burns did not "overrule" Miller or Kindler - Miller is hardly addressed (and it couldn't be in any meaningful way, since Miller was decided under an entirely different statute, namely the Canadian Bill of Rights) and Kindler is expressly confirmed to constitute good law at para. 67 ("we affirm that the “balancing process” set out in Kindler and Ng is the correct approach).)

All that being said, the Canadian Press article is still incorrect: the Supreme Court of Canada has still not declared that the death penalty constitutes "cruel and unusual punishment".  From para. 78 of Burns:

We are not called upon in this appeal to determine whether capital punishment would, if authorized by the Canadian Parliament, violate s. 12 of the Charter (“cruel and unusual treatment or punishment”), and if so in what circumstances.  It is, however, incontestable that capital punishment, whether or not it violates s. 12 of the Charter, and whether or not it could be upheld under s. 1, engages the underlying values of the prohibition against cruel and unusual punishment.

So, the most we can say about Canadian law at this point is that we have one Supreme Court decision (Miller) which holds that the death penalty does not constitute "cruel and unusual punishment" for purposes of the Canadian Bill of Rights, and two Supreme Court of Canada decision (Kindler and Burns) which expressly declined to address the matter, one of which (Burns) states that the death penalty "engages" the underlying values of the prohibition against cruel and unusual punishment.  Given the tenor of the decision in Burns, it's difficult to imagine that the current Court (even though its composition has changed in the years following Burns) wouldn't hold the death penalty to constitute "cruel and unusual punishment", but when a news report describes the law, it should aim to describe it as it is, and not as it might one day be (or, to put it more finely, as the reporter may really, really want it to be).

Thank you for joining us professor Boyd

As I mentioned earlier, the disinformation campaign about crime in Canada is in full swing.  Today, the Globe and Mail solicited the thoughts of SFU criminology professor Neil Boyd on crime rates and the government response to them, in a Q&A session with Globe readers.  Boyd wasn't even able to make it through his first response without... well, see for yourself:

Neil Boyd: Demographic shifts do explain a good deal of the variation in homicide rates, and the rates of other kinds of serious violent crime. In the mid 1970s, young men (those between the ages of 18 and 29) represented 10 per cent of the Canadian population; today they represent about 5 per cent of our population. This demographic category is responsible for close to 70 per cent of all violent crime, and so it follows that when their numbers shrink, the crime rate drops. Canadians are no more or less violent today than they were 30 years ago, but the character of the violence has probably changed.

That's ... hilarious.  Let's see what a quick trip through the actual statistics reveals about whether Canadians "are no more or less violent today than they were 30 years ago".  Let's try, f'rinstance, page 16 of this Statistics Canada report, which helpfully contains a chart listing crime rates from 1962 through 2005.  Look at the column titled "Violent Crime - Rate".  Note that in 1977 the violent crime rate was 572 per 100,000 - and, whoopsie! in 2005 the violent crime rate was 943 per 100,000, meaning that Canadian society is about, what, nearly twice as violent today as it was thirty years ago?  Never let that get in the way, however - we gots us some criminals to let out on the streets!

Great Moments in Canadian Sentencing 11.20.07

Our judiciary keeps doing us proud:

He was convicted in June 2006 of aggravated assault, assault with a weapon and eight other charges of confinement and uttering threats for an attack on Misty Franklin, then 24.  Franklin's spinal cord was severed, leaving her paralyzed from the neck down.

Well, that doesn't sound good.  The attack took place in 2003 and - ta da! - he's about to get out of prison.  But there's a couple of twists here, which, knowing what you know about the Canadian criminal justice system, I'm willing to bet you just won't see coming.

The attack came three months after Fontaine was released from a Prince George halfway house, after serving four years for sexual assault and attempted murder in 1999.

That's twist the first.

He had earlier been convicted of twice assaulting another woman, beating her with a frying pan and stabbing her with kitchen knives.

And there's twist the second. 

So now he's the subject of a dangerous offender hearing.

That, took, let's see, one assault with a frying pan coupled with stabbing avec kitchen knives, one sexual assault coupled with attempted murder, and one aggravated assault which rendered the victim (a single mother of two) paralyzed from the neck down.  Tally that all up, and now, finally, maybe, he'll actually be put away for meaningful time.  But only if a judge agrees with the application (of course, don't worry, every seven years Dangerous Offenders get to argue that they should be paroled).  Seeing how the judiciary has acted in the past in regards to this offender, would you be willing to bet the house on a successful DO application? 

Whenever I read stories like the one noted above, I recall the immortal words of Ottawa Citizen columnist Dan Gardner, one of the commentariat's more frequent pronouncers on the Canadian criminal justice system: "In most cases today, serious criminals are seriously punished."  I recall those words, and I laugh and I laugh and I laugh.

"cast of lowlifes"

And here I thought the book would have no relevance to anyone.  As I explain in Chapter Five of Under Arrest - Canadian Laws You Won't Believe, it remains a crime in Canada to publish blasphemous material.  That provision of our Criminal Code, as with so many, is derived from English law - where it appears that free speech is due to get a bit of a workout:

The leader of a small evangelical group went to Britain's High Court on Tuesday in a bid to sue the producers of ``Jerry Springer: The Opera" for blasphemy.

... Earlier this year, a lower court rejected a request to issue summonses against "Springer" producer John Thoday and Mark Thompson, director-general of the British Broadcasting Corp., which televised the show in 2005.  Green's lawyers are asking three High Court judges to allow private prosecution for blasphemous libel.

Evidently the English anti-blasphemy law has been successfully used as recently as 1977.

Nothing to see here, move along

A new stanza begins: the government attempts to ensure that violent criminals are punished, and the pro-crime advocates step up their disinformation campaign.  Let's see what Tonda MacCharles, writing in the Toronto Star, has to say about the issue:

Still, Nicholson justified his bill by saying Canadians are concerned by what he called higher rates of youth crime and the "seriousness of these crimes" in such cities as Halifax, Toronto and Winnipeg.

But experts, including Martha Mackinnon of Justice for Children and Youth, a legal clinic for low-income youth, say serious youth crime is not increasing, except for a blip last year.

Interesting.  Evidently none of these "experts", Tonda MacCharles nor Martha Mackinnon have access to the internet.  Let's see what about four seconds of Googling reveal about "serious youth crime" in Canada.

Statistics Canada, The Daily, Tuesday July 18, 2000:

The rate of youths charged with violent crime dropped 5.0% [in 1999], the fourth decline in a row. This was the largest year-over-year decline since the introduction of the Young Offenders Act in 1984. Despite these recent drops, the youth violent crime rate was still 40% higher than it was in 1989.

Statistics Canada, The Daily, Thursday, July 19, 2001:

Similar to the overall crime trend, the youth charged rate for violent offences increased 7% [in 2000], while that for property offences declined 4%.  Most major categories of youth violent crime rose in 2000, including sexual assault (+18%), assault (+7%) and robbery (+2%).

Statistics Canada, The Daily, Wednesday, July 17, 2002:

The violent crime rate for youths increased 2% [in 2001], its second consecutive gain

Statistics Canada, The Daily, Thursday, July 24, 2003:

Violent crime among youth was down 2% in 2002. After increasing steadily throughout the 1980s, the rate of youths charged with violent crime continued to increase during the 1990s, but at a slower rate. Even with the most recent drop, the 2002 youth violent crime rate was still 7% higher than a decade ago.

Statistics Canada, The Daily, Wednesday, July 28, 2004:

Violent crime among youth was up 3% [in 2003], also the third increase in four years.

Statistics Canada, The Daily, Thursday, July 21, 2005:

The rate of violent crime among youth fell by 2% [in 2004]

Statistics Canada, Crime Statistics in Canada, 2005, page 13:

The youth crime rate increased [in 2005] for the most serious violent offences: homicide (+47%), attempted murder (+11%), aggravated assault (+6%) and robbery (+9%.

Statistics Canada, The Daily, Wednesday, July 18, 2007:

Violent crime among youth rose 3% [in 2006]

So, to recap, according to Statistics Canada, in 1999, youth violent crime fell 5%, which still put it at a rate 40% higher than it had been a decade before. Youth violent crime then increased in 2000, 2001, 2003, 2005 and 2006.  So, in the last eight years, youth violent crime has increased in five out eight years, and is almost 50% higher than it was two decades ago.  But, hey, there's nothing to worry about - everything's working fine and Tonda, Martha and their coterie of "experts" have it all sewn up.

everything you could possibly need to know about Toronto public schools...

in 126 words or less:

Two parents I spoke to were particularly agitated about a Grade 9 boy who was reportedly designated a safe schools transfer.  In his middle school, he'd beaten up his teacher so badly the teacher was hopitalized and had to take a leave of absence.  The board suspended the child, then moved him to a second school, where he again punched out a teacher.  This time, it took several cops to restrain him.  He was suspended again, and when he resurfaced at C.W. Jeffreys he was escorted by a TDSB youth worker.  "Teachers were terrified of him," says Jacqueline Mitcheel, who daughter has been in a class with this student for two years.  "I had one teacher calling me at home, telling me how scared they were."

(Taken from "Deadly Lesson", by John Lorinc, Toronto Life, December 2007, pp. 37-54 at 49-52).  What's absolutely hilarious about the article is the tone of complete bewilderment heard from the reporter, the teachers, the union, the parents, everyone.  No one seems able to connect the dots between a near-total lack of disciplinary action and, you know, a near-total lack of discipline.  Even the union, sniffed at by Lorinc and hinted at as wanting to bring to bear some kind of hardline corporal punishment, only wants to sequester perpetually violent students in their own separate school (brilliant idea, I say: keep all the really aggressive ones together - maybe they could hire ninjas to watch over the classes and protect the teachers). 

By the end of the piece, about the only thing Lorinc is willing to concede is that "maybe kids who continually abuse the public education system shouldn't have unfettered access to it" [emphasis added]. 

Not that he's prepared to jump to such a radical conclusion, mind you.

Great Moments in Canadian Sentencing 11.17.07

The weak link in the criminal justice system resides not with the police, nor the corrections apparatus, nor even, as might otherwise be surmised, the criminals.  It's the judges.

Cody Paul Lemay raped a baby.  Repeatedly.

To quote from the doctor's report:

"In my years of experience in care of the sexually assaulted patient, KN had the most severe genital injuries I have ever examined in a pediatric sexual assault case."

The physical violence was so great that the tear to the baby's anus was described as an “open, gaping laceration”.  The assaults occurred on "at least five, and perhaps as many 12 occasions".

The maximum punishment which can be meted out for a conviction of aggravated sexual assault is a term of life imprisonment (see section 273 of the Criminal Code of Canada).

Cody Paul Lemay received a sentence from the trial judge of five years in prison.

Now what's fascinating about that punishment is how it was arrived at.  It's an example of what I will dub the Moldaver Paradox (for reasons which will become apparent momentarily).  As the British Columbia Court of Appeal noted, when the trial judge was reviewing other court cases for guidance on what constituted an appropriate sentence,

"he had difficulty understanding why some of them had not attracted longer sentences"

With the story so far?  Confronted with a case of hideous violence (against a baby), the judge looks at what other judges are handing out as punishment - and he's bewildered to discover that the judgments he reads are lenient to the point of absurdity. 

So what does he do?

He hands out an even shorter sentence.  We can call it the Moldaver Paradox, because one of the cases which the trial judge relied on was R. v. B., J. [.pdf], a judgment of the Ontario Court of Appeal, involving a five-week old baby boy and six year-old girl being "horribly assaulted", by a "sexual sadist" prone to "extreme acts of violence".  In that decision, Justice Moldaver, reacting unfavourably to the "degrading", "dehumanizing" and "extreme acts of brutality" which the convicted had committed, imposed a sentence of ... wait for it ... six years (which was really only four years, after the convicted was given credit for pre-trial custody).  The trial judge in the Lemay case evidently figured he could pitch it a little lower, so he just went for five (with, of course, time off for pre-trial custody).  It's a paradox because these judges, by their own words, recognize that what they are dealing with are crimes of incredibly brutality - the worst, without engaging in hyperbole, of the worst.  They seem, again, from their own words, to want to levy stiff sanction.  And yet they seem incapable of rendering sentences which their own revulsion would warrant.  Perhaps the easiest way to cast the issue in relief is to pose the counterfactual: if the maximum sentence is life in prison, what exactly would it take for these judges to deliver that punishment?  What, in other words, is missing in these cases?  What accounts for the difference between "five years" and "life"?  What more could they possibly need in order to actually render the maximum punishment which our criminal law permits?

In the Lemay case, we see the Moldaver Paradox at work also at the level of the Court of Appeal.  The Crown appealed the ludicrous five year sentence.  The BC Court of Appeal, consisting of Justices Newbury, Low and Kirkpatrick, harrumphed at how low the sentence was, noting the extreme violence, the brutality of the assaults, the complete lack of remorse by the rapist, and increased it to ... seven years.

Our judiciary has the tools.  They consciously, deliberately, inexplicably and consistently refuse to use them.

your lying eyes

At some point, someone is going to have a fun time explaining why it is that Canadian politicians and members of the professional commentariat seem congenitally incapable of telling the truth about our crime rates.  Lies and obfuscation are the order of the day, and seemingly nothing, but nothing, can change the received narrative.

Take, f'rinstance, Chairman of the Toronto Transit Commission (and also member of Toronto city council), Adam Giambrone, as quoted in today's Globe and Mail:

A series of muggings at subway stations in recent weeks is not a sign that crime on the public transit system is getting out of control, Toronto Transit Commission officials say. ... TTC chairman Adam Giambrone acknowledged that the list of reported crimes - including an incident at Kennedy Station on Tuesday afternoon when four young men attacked two others over a cellphone - was longer than he would expect. "My understanding is that crime is not growing exponentially. But at the commission, we have various security issues," Mr. Giambrone said, adding that he is notified of every incident. "Proportionately," he said, "I believe crime is actually steady or falling on the system."

Sure, what the hell - "steady or falling".  Except, as you should expect, the TTC's own statistics show that crime on the system is rising, and rather rapidly, at that:

While the TTC would not release figures for 2007, the crime rate on the transit system rose in 2006. The agency recorded 1,601 crimes of all descriptions against passengers in 2006, for a crime rate of 0.36 crimes per 100,000 riders, an increase from 0.29 in 2005 and 0.24 in 2004. The rates more than double when crimes against TTC staff are included.

So... the crime rate has increased, what, roughly 50% from 2004?  But, hey, pay no attention to those squiggly little lines - it's "steady or falling".

Giambrone could be forgiven, however, if he's been getting his cues from reading the paper - because innumeracy, or lack of reading comprehension, seems to be the order of the day.  You will recall that recently the Harper government recently introduced a criminal justice bill which would, horrors, make obtaining bail harder to achieve in the case of serious gun crimes, introduce additional mandatory minimums for gun crimes and impose a reverse onus on dangerous offenders.  This engendered much sneering from the commentariat, who harrumphed that crime was actually "going down", so this was all fear-mongering by the Conservatives.  Problem is, in making their argument, they engaged in misdirection of the most mendacious sort (how's that for alliteration?).  Let's pick columns from a few different points on the political spectrum, to demonstrate how pervasive the highly politicized narrative is.

Start with Dan Gardner, writing in the Ottawa Citizen:

They have said for years that crime is a growing menace and the streets are being overrun by -- as Mr. Harper likes to say -- "guns, gangs and drugs." This is nonsense, but they claim to believe it.

What did the Toronto Star's James Travers have to say about the matter?

Most recently, and with exquisite timing, [Statistics Canada's] abacus wizards trumped the throne speech by reporting the homicide rate is continuing its happy downward spiral.  Combined with July findings that the overall crime rate is at a 25-year low, that should have poked a hole in the Conservative hot air justice balloon. Truth is, facts don't matter.

Howzabout law professor Alan Young, writing in Toronto's NOW Magazine:

Should we be surprised that Stephen Harper’s omnibus Tackling Violent Crime bill was introduced the same week that StatsCan reported a 10 per cent decrease in the national homicide rate? In fact, the national crime rate has reached its lowest point in 25 years.

The fact that the same talking point is repeated can serve as the first clue that what we're dealing with is cant, rather than fact.  Here's what each of the three gentlemen noted above, along with so many other commentators, missed: the Tories introduced a bill called the Tackling Violent Crime Act because, wait for it, violent crime is on the rise.  But don't take my word for it - let's read the StatsCan July 2007 release that fueled so many disdainful mockings of the Conservative bill.  Let's see who is engaged in spreading "nonsense" and obscuring "facts" which "don't matter".  Let's see, in other words, what StatsCan actually had to say:

Canada's overall national crime rate, based on incidents reported to police, hit its lowest point in over 25 years in 2006, driven by a decline in non-violent crime.  ... The crime rate dropped by 3%, mainly due to declines in break-ins, thefts under $5,000 and counterfeiting.

... The national homicide rate fell 10%, halting two years of increases. However, increases were reported in many serious violent crimes such as attempted murder, aggravated assault, assault with a weapon, robbery and kidnapping/forcible confinement.

... While overall violent crime remained stable, most serious violent crimes were on the rise, a situation similar to 2005.

... The youth crime rate increased 3% in 2006, the first increase since 2003. Violent crime among youth rose 3%...

So, let's concede to Travers, Young and Gardner that things that people really worry about, like counterfeiting, are on a decline.  Unfortunately marring the rosy picture they want to paint is the minor fact that inconsequential things like, say, the "most serious violent crimes" have been on the rise for a couple of years.  Anyways, let's go back and look at the title for that legislation the Tories were proposing - hmmm... why, it's called, imagine that, the Tackling Violent Crime Act!  They must be crazy! Fabricating so-called "violent crimes" out of thin air!  Lunatic, I tells ya! 

We won't be able to have a lucid discussion on criminal justice policies in this country until the fundamental facts about crime actually manage to make it through the veil draped across the issue by so many.