bob tarantino

"'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".

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 07.07.09

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?

Sotomayor and the Canadian Judiciary

The good folks at the National Post were nice enough to publish an op-ed by me today entitled "Face It: Judging is Political".  Hopefully it highlights one of the more oblique lessons to be learned by Canadians from the nomination of Sonia Sotomayor to the United States Supreme Court.

UPDATE: Also available at the Post's Full Comment blog under the slightly more bracing title "Lessons for Canada in the Sotomayor Brawl".

"while noting a jury's verdict reigns supreme"

This is a curious story:

The Canadian military should take a "sober second look" at the continuing affiliation of three "callous" and "cowardly" reservists after they were acquitted yesterday of aggravated assault, a visibly angry judge said after excusing jurors from his courtroom.

"Your behaviour was nothing short of disgraceful," Superior Court Justice Robert Clark thundered.

After retiring Tuesday night, the jury returned late yesterday afternoon and found Ryan Crossman, 23, Ryan Livesey, 23, and Sean Jones, 21, not guilty.

While noting a jury's verdict reigns supreme, Clark said he had also listened as the men testified during the two-week trial.

... "Canada deserves better ... you should be ashamed of yourselves," Clark told the three as they stood silently in front of him.

I say it's curious because the defendants were, as the Star report notes, acquitted of the charges against them.  The comments at the Star website are also expressing a little bit of, shall we say, confusion: "... doesn't their acquittal mean that they were found not guilty of the assault with which they were charged? The judge seems to be saying "Although you got off, I know that you're guilty.""  Now, nobody over here is naive enough to think that court findings are definitive determinations of truth, but, really, if even a judge seems to discount the value of a jury decision, what are the rest of us supposed to be thinking?

'neither responded to, nor acknowledged"

There's really no fair way to describe this except as a dereliction of duty:

British Columbia Supreme Court Chief Justice Donald Brenner says he has had to cancel some trials in his province because of the Conservative government’s delays in appointing judges to his court.

Meanwhile nine of the 17 judicial appointments advisory committees (JACs) across Canada which vet judicial candidates for the federal Minister of Justice — including the B.C. JAC — have been inoperative since their two-year mandates expired October 31, 2008.

Ensuring the smooth operation of the judicial system is one of the sine qua non criteria of good government.  This seems like an aberrational blip ("there were a large number of retirements and supernumerary elections" from the BC courts last year), but that there are still seven vacancies is troubling.  That there are 34 vacancies on the federal bench is also disturbing.

On a happier note, and buried way, way down in the story is that the absurd hysteria which accompanied the minor tweaking of the Judicial Advisory Committees a couple of years back was, well, absurd hysteria:

Chief Justice Finch praised the work done by the defunct B.C. JAC, notwithstanding fears expressed two years ago by the Canadian Judicial Council that the Harper government’s changes to the committee’s composition had imperiled the JACs’ independence.

“I can only go by the quality of appointments made to our courts out here, and I think they have been overall very, very good,” Chief Justice Finch observed. “In terms of the appointments to our court I would say they have been uniformly excellent. I have absolutely no complaint about the quality of any judge who has been appointed [to the court of appeal] since the committee was revised.”

Expect that to not be mentioned anywhere else.

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.

"let's be honest here"

Matthew Shogilev's recent argument at The Court that all judges appointed in Canad should be bilingual (Shogilev limits his prescription to Supreme Court justices, but his thesis ("those without a strong command of both official languages ... are not as well positioned to engage in effective statutory interpretation") applies a fortiori to judges at all levels - why would we want only SCC justices to be competent in "effective statutory interpretation"?) was rather adroitly addressed a couple of days later by Christopher Bird in the same forum.  A slightly more humorous riposte, though addressing largely the same underlying motivations, to the argument can be found here.

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.

"there are reasons to believe"

The Minister of Justice has confirmed that the next appointment to the Supreme Court of Canada will "appear at a public hearing of an ad hoc parliamentary committee, a process that was first established for the appointment of the Honourable Mr. Justice Marshall E. Rothstein in 2006."  Which means that we're still stuck with a deficient appointments process - since our elected representatives still have no meaningful input into the appointments process, as final decision-making authority rests with the Prime Minister.  One would have thought that the glories of a minority government would have laid bare the inanity of vesting so much power in the unelected office of Prime Minister (viz. that a party (the Conservatives) lacking popular mandate for majority rule can effect the appointment of justices who have the power to affect laws for decades to come) - instead, the reactionaries in the legal community and the media are still fretting over whether the judicial appointments process is about to be subjected to the horrors of politics.  To which one can only reply: if you had listened to those of us who were arguing years ago that a parliamentary vote should be required to approve a Supreme Court nomination, then you wouldn't now be facing the night terrors which apparently afflict you when you think about Stephen Harper appointing the next puisne justice.  So, hey, nice work.

Over at The Court is offered a classic of the genre, querying whether news of the appointments process is "Democracy at Play or Judicial Independence Under Siege?".  That the second part of that question is pure histrionics can be demonstrated by observing what happened the last time around: when it was announced that a parliamentary committee would be undertaking public questioning of the nominee, the Canadian Bar Association just about lost its mind.  They harrumphed that they were opposed to even the prospect of a public questioning by elected representatives because it would "undermine public confidence in judicial independence".  Four days later the CBA announced that they might be willing to accept the notion of a "public interview" but only if no elected representatives were around, and, wait for it, the CBA, presumably on the basis that they're a bunch of swell guys, got to control the process.  Once they had bothered to, you know, actually watch the public questioning, the CBA was forced to admit that "hearing was a success".  From a grave threat to the very fabric of judicial integrity in this country to a "success" in the space of seven days might not be a record of any kind, but it remains impressive nonetheless.

Has anyone learned anything?  Hardly.  Confronted with the fact that the previous session not only was a "success", but was even praised by the Chief Justice, the reactionaries are forced to fall back on the coincidentally unfalsifiable "yeah, but next time" argument.  And so it begins: the CBA President announces that he is "concerned" and advocates "caution"; at The Court the opinion is offered that it is this next hearing which will be the "true litmus test" of whether Canada's elected representatives can possibly be trusted with responsibility for deciding who makes the law (the last one presumably failing to qualify as such because it so unequivocally managed to not live up to the unrelenting doom and gloom prophesied).  Evidently, no one should dare to ask the nominee any questions which might unduly frighten, alarm, vex, confuse, concern, disquiet, perturb or otherwise excite the fragile barrister or solicitor who ends up before the ad hoc committee.  In no conceivable situation should "criticism of past judgments" be permitted - our ermine-robed betters must stand inviolate before the huddled masses.  "Canadians," gravely intones the CBA, "must be secure in the knowledge that judges decide cases after they hear the arguments presented to them, with impartiality and integrity and applying the relevant law."  Quite how asking a few questions could possibly imperil this knowledge is never explained.

Perhaps the most telling line is the following Freudian slip in The Court post: "it is not clear how subjecting Supreme Court nominees to the glow of parliamentary politics affects judicial independence".  Indeed.  And still we wait for an explanation.

"there is no empirical basis for the [judiciary’s] contention"

Not bad work if you can get it:

Inclusive of the 3.2 per cent statutory indexing that kicked in April 1, 2008, puisne trial and appeal judges are now paid $260,000 per annum; chief justices earn $285,000; Supreme Court puisne judges earn $309,300; and the Chief Justice of Canada earns $334,100.

But not "not bad" enough, one supposes:

The judges seek cumulative salary increases of: 3.5 per cent in 2008; and 2 per cent in each of 2009, 2010, and 2011. This is in addition to the yearly statutory indexing they are automatically entitled to under the Judges Act –which boosts their salary in lock step with the prior year’s increase in the industrial aggregate, a measure of workers’ average weekly wages.

The Lawyer's Weekly provides a detailed examination of the ongoing fight between the government and the judiciary over raising judicial salaries, and the rather hallucinatory arguments being made.

"ensure that the present opportunity to become more seriously democratic is not lost"

As noted over at The Court, the question of the judicial appointments process to the Supreme Court of Canada will shortly be engaged yet again.

"[the] pertinent question is by what process will the selection be made? The answer could have a profound effect on the future of Supreme Court appointments in Canada, and more broadly on the relationship between the judiciary, the legislature and the public."

We should be so lucky.  To my eye, no one in Canada does a better job of articulating the deficiencies in the current appointments process, and explaining the fundamental democratic criteria which mandate an overhaul to make it more participatory, than Allan C. Hutchinson.  This piece, penned nearly three years ago when the appointments issue was being (badly) addressed by the Paul Martin government, is worth clipping and saving - read the whole thing, but here's a taste:

The Canadian process is much more low-key, bureaucratic and impersonal. The Prime Minister still has the final say, but, under the newly-reformed process, he or she has a limited list of candidates to choose from as a result of parliamentary and broader consultations. However, once a decision has been made, there is no opportunity for the public quizzing or rejection of the selected judge. It is a done deal with the empty and belated gesture of the Minister of Justice vicariously facing questions about the new judge.Yet the appearance of democratic input in the Canadian process is belied by the reality of the closed-doors decision-making which actually shapes the process and ultimately controls it.  It is thought that the dignity of the appointment and general judicial process is too seriously jeopardized by a more open process; judges and the legal system generally must be protected from a more robust and public scrutiny which the American appointees and courts must undergo.

This is a sad state of affairs by any lights, let alone in the actual conditions of the contemporary Canadian polity and the increasingly central role of its courts. If democracy is about anything, it is about increasing public involvement in the exercise of political power. While there are a few occasions in which confidentiality and even secrecy are justified, the appointment of powerful and unelected officials is not one of them. Democracy demands more and its citizens should expect more.

Despite Canadian contentions, the Supreme Court of Canada is as political and its decisions as controversial as those of its American counterpart. The divisions may not be as stark, but that is more a matter of style than anything else. Canadians, especially the judicial community, are much more polite and backroom in their disagreement; not washing dirty linen in public remains a guiding principle of too much Canadian politics.

oh, it's hardly "implied" criticism

Retired Quebec judge John Gomery says the Harper government's plan to create mandatory minimum jail terms for drug crimes is a "slap in the face" to judges and suggests the Conservatives don't trust them to craft appropriate sentences for individual cases. [emphasis added]

Yeah, can't imagine where they would have gotten that crazy idea.

The interview with Gomery (assuming that Gomery's description of the reaction of his fellow judges is accurate) is fascinating for revealing one of the political dynamics which rarely rears its head in Canada: the judiciary is jealous of its power, and looks askance at any effort to modify it, no matter how minimal or how obviously needed such efforts may be.

Great Moments in Canadian Sentencing 06.07.07

First up, Ontario Superior Court Justice Edward Then:

A 20-year-old who killed another Halloween reveller with a "sucker punch" in a parking-lot dispute after his friend was refused a cigarette has been sentenced to 15 months in jail.

... With time off for good behaviour, Gorshkov will likely serve only six months [said the brother of the deceased]. [emphasis added]

This is the part I enjoy:

[Justice] Then said factors militating against a harsh sentence included Gorshkov's youth, supportive family, steady work and education endeavours, and lack of a criminal record.

It isn't completely clear from the Star's account, but it appears that Gorshkov was twenty years old when he killed Dmytro Nikolaenko.  Which prompts the question: since we already have in place a juvenile justice system which is specifically constructed to avoid holding to account individuals under the age of eighteen, at what point does a person become sufficiently mature for the judiciary to deem them responsible for their actions?

Second, the Supreme Court of Canada offers us an opportunity to fondly recall some earlier stellar sentencing decisions:

Lesley Miller burst into tears when she was told the man who beat her husband into a vegetative state has been granted a new trial by the Supreme Court, partly because the trial judge took too long to submit his written ruling.

Remember this case?  This was the one where the assailant "attacked [the victim] after the apartment caretaker found him sleeping in a hallway and asked him to leave".  Among the results of the attack?  Let's see - "a broken skull, nose and jaw and robbed [the victim] of his speech"; "tore off one of [the victim]'s ears"; oh, and the aforementioned "vegetative state", complete with feeding tubes. 

So, how many judges had the chance to intervene in the litany of hideous crimes which this psychopath undertook?  Let's speculate: "Teskey [had] a 15-year history of violence ... [and had] previously [been] convicted of a list of crimes, including shooting city police Const. Mike Lakusta in 1988 and tearing the penis off the two-year-old son of a girlfriend in 1992."  Brilliant.  The especially nice touch is that within four years of having shot a cop, he was free to rip the penis off a two-year old, and within the decade was available to beat a man into permanent disability.  Now seems like a decent time to remind everyone of the Globe and Mail's sneering about conservatives being spooked by the "supposed hold of the bleeding-heart, soft-on-crime" judges.  Yep, sure glad there's none of them around.

Great Moments in Canadian Sentencing 05.30.07

Justice John Moore does us all proud:

Rejecting a call from the Crown for a three-year prison sentence, a judge has handed 12 months of house arrest to two young men who sped up Mount Pleasant Rd. and killed a popular taxi driver.

Wing-Piao Dumani Ross and his friend, Alexander Ryazanov, both 20, must also serve an additional year under an 11 p.m.-6 a.m. curfew that can be overridden with their parents' written permission.

These are grown men - "adults", for lack of a better term, I suppose.  And yet the judge insists in infantilizing them and their actions.  The reported reasons for the decision are almost laughable (they're "young"! they displayed "remorse" by pleading guilty!), but nothing says it quite like the fact that the judge not only dismissed the Crown's sentencing request, but went lower than even the defence's request.

In completely unrelated news, "C.W. Jefferys Collegiate is a school wracked by lawlessness" because the administration refuses to impose meaningful sanctions for disruptive and even violent behaviour.  Odd how that happens.

"obviously sent an important message"

The interview of Ontario Chief Justice Roy McMurtry conducted by Haroon Siddiqui is absolutely hilarious, not least for the fact that Siddiqui, being Siddiqui, manages to let the most salient points of the interview fly right his head.  Check out just the opening [emphasis added]:

In an interview in his chambers at Osgoode Hall, McMurtry, 75, talked about a range of issues.

He did so with more than his usual candour – a reflection, no doubt, of his impending freedom from the constraints of judicial neutrality on public policy.

Which raises a number of questions, not least among them: why then didn't McMurtry observe the conventions of the office which he holds and, I don't know, wait a week or two before talking "about a range of issues"? Of perhaps equal relevance, if McMurtry is going to insert himself into political issues even more fervently once he's retired from the bench, how would we possibly be able to tell the difference? Various of our chief justices seem incapable of understanding the most basic tenet which governed the public conduct of members of the judiciary for centuries: if you're going to whine every time someone criticizes a judicial decision don't, ferthaluvagod, flounce into the public sphere and open your big mouth and prove your critics right at every juncture.

Then there's this brilliant non sequitur:

What of the argument that such decisions go against the traditional and established views of a society?

"I don't think the traditional view or the majoritarian view is the correct view. The Charter is really a document to protect minority rights."

The interview is most helpful, though: now we know that the Chief Justice of Ontario thinks the function of judicial decision-making is to "send messages", and it just so happens that the messages to be sent correspond precisely to his own political preferences.  Whattacoinkidink!  Can't wait to read part two of the fluffing interview...

Great Moments in Canadian Sentencing 05.15.07

When even the Toronto Star feels the need to report that a judge is handing out a light sentence, you know things are just hunky-dory:

Late last year, and after the second day of a preliminary hearing, [Sirvon Edwards] decided to plead guilty to seven of 15 charges, including robbery and possession of a prohibited firearm.

On December 17, 2005, Edwards had just robbed a man at gunpoint - when confronted by police, he decided to run away and then start shooting at them.

The sentence handed down by Justice Patrick Sheppard?  Five years, four months.  With the judge according him "credit" at the usual (judge-made) rule of two-for-one, Edwards will likely be out of jail in less than two years. 

So, basically, a few years in jail for robbing someone at gunpoint, and then trying to kill a police officer.

But it gets better.

At the time of the bank machine robbery, Edwards was under one of three previous lifetime bans from possessing firearms and had been out of jail just four months.

In 2003, Edwards was charged with first-degree murder after a man was shot to death just outside Canada's Wonderland. But a plea bargain reduced Edwards' charges to a lesser weapons offences plea, and he was sentenced to 12 months when time served was taken into account.

In 2001, he put a loaded gun to the head of a bouncer after he was refused entry to a nightclub. He was sentenced to a year.

The judge at his trial lamented that Edwards' "prospects of rehabilitation seem remote." [emphasis added]

Gosh, maybe they could give him another "lifetime ban" from possessing weapons.  Since it worked so well the first three times around, and all.

"sought the views"

If I seem not to be blogging much, it's because I'm, er, not.  Part of it is being busy with other things (like, say, work), but part of it also is that I appear to have lost the ability to write posts like this one, over at Dawg's place.  Smart and irreverent - I don't know that my blogging ever possessed those qualities (certainly if it did, it was a couple of years in the past), but if you want to read an excellent post about an elected judiciary, check out what Dawg has to say on the matter.  (As an aside, his post also helps highlight one of our lost modes of expression: the dialogue.  How far gone is our collective ability to make use of the dialogue?  Consider that Berkeley once wrote his theories about the faculty of vision in the form of a dialgoue - and it was actually pretty interesting.  I digress.)  Dawg opened by wondering what I might have to say about it, which prompts the following.

I'm agnostic on proposals for an elected judiciary, because it's a complicated issue which deserves lengthy consideration - if forced to show my hand, I'd have to say that I would oppose any moves in the direction of electing judges.  But just as interesting, I think, is the question of why the proposition has even arisen in Canada (a poll released last week showed a majority of Canadians in favour of the idea).  I tend (moreso recently) to shy away from large-scale societal-level psychographic explanations for things, but it strikes me that talk about electing judges is the result of a bad case of structural dissonance in our legal/political system.

The delegation of personal sovereignty is the bedrock on which liberal democratic government stands.  The electoral franchise is the mechanism by which this delegation occurs - and so the default conclusion to which those socialized in a liberal democracy arrive is, if something is wrong, vote the bastards out.  Or something to that effect.  The floating of the "elected judges" idea is just the application of that principle to perceived problems with the judiciary.

It has become trite to say that the introduction of the Charter resulted in a fundamental shift in the locus of power in Canadian politics - but that doesn't make it any less true.  What is often overlooked is that there was no commensurate change in any other aspect of our polity: the federal legislature essentially handed off a significant portion of its decision-making authority to the courts.  The courts, being comprised of humans, with all their attendant foibles, have jealously guarded their new-found power and looked askance at anyone who questions it ever since (which partly explains why our current Chief Justice spends so much time, more than any previous Chief Justice so far as I am aware, proselytizing).

Something fundamental changed in our political structure with the introduction of the Charter, and the effects are still being worked out.  The expression of a desire to elect judges is the expression of a desire of citizens of a democracy to exercise control - we tend to disdain any governmental function which lacks accountability.  And, at bottom, I think that's what we're seeing when there is a popular sentiment in favour of electing judges: it is a crisis of accountability, much more than a crisis of legitimacy.  But a crisis of accountability left to fester for too long can become a crisis of legitimacy.

We've changed the power of the judiciary (in itself not necessarily a bad thing) without making any accommodation in our system to take account of that change (itself necessarily a bad thing).  And even the most marginal tinkering around the edges of the current system to inject a measure of democratic accountability (viz. the prospect of allowing a Parliamentary committee to question Supreme Court nominees) is met with shrieking outrage from the guardians of the legal caste and their reactionary allies in the media (why, yes, Eddie Greenspon, I am looking at you).

The electorate, looking askance at some of the judicial decisions they see being handed down from on high (take your pick depending on your allegiance, from Chaoulli to criminal sentencing to Bryan) sees that not only do some of these decisions seem to come from no discernible political place, but even raising the question is frowned upon.  For a sense of the disorientation that your average apolitical voter must feel on being informed of some court decisions, muse on this report about our former Prime Minister and Minister of Justice responsible for the drafting and implementation of the Charter:

In an interview ahead of the 25th anniversary of the Charter, Chrétien said he was taken aback by a series of judicial rulings in 2003 – his last full year as Liberal prime minister – that put a legal stamp of approval on gay and lesbian weddings. "I was caught by surprise..." [emphasis added]

You don't say.  This is a former prime minister, former justice minister, occasional lawyer, one-time leader of a party which prides itself on defending human rights and the Charter (when (and only to the extent) politically expedient, of course) who was "taken aback".  When someone is grumpy about a political issue, they usually seek to implement a mechanism which enables them to exercise a measure of control over it - and when you're watching an unaccountable judiciary, it's understandable that one of the primary instincts of the electorate is to seek to use the one tool which hasn't (completely) been snatched from them yet: the ballot box.

All that being said, do I think that "electing judges" is the way to go?  No.  But don't get distracted by the keening wail of those who seek to defend judicial "independence" or avoid "politicizing" the judiciary.  Trying to take "politics" out of judging is akin to hoping for rain to not be wet - we should try to avoid partisanship in the judiciary, but even that can't be fully worked around.  Whatever the answers are to "fixing" our political system, these are ultimately political questions which will be answered by political means.  And we would all do well to heed the sentiment of frustration that is expressing itself in unfortunate initiatives like seeking an elected judiciary - because a legitimate concern which is met by sneering and stonewalling is unlikely to go away.

Lamer Does Not Rhyme With Gamer

Continuing on the theme of our judiciary, it's fascinating that these comments did not receive more coverage (the story is from February, but I'm just coming across it now):

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]

Those comments are... I'm not even sure what word I would use to describe my reaction in reading them. As the story notes, Lamer "was part of a voting bloc that tended to side with the accused in criminal cases, earning him a reputation for being soft on crime" - which is an oddly bland way of saying that, at least when I was reading his judgments on a regular basis, you could pretty much bet the house on Lamer giving the accused/convicted a gentle nudge on the wrist and sending them on their way (I swear there were times when you half expected to come across an annotation to the judgment which described him high-fiving defence counsel on the way out of the courtroom).  For him to publicly come to the on-the-record conclusion that some judges are handing out sentences which are too lenient is just... nope, still don't have the right term for it. "Flabbergasting" is trending in the right direction, I suppose.

The rest of the article is just as interesting, mostly because it shines the proper light on the kerfuffle late last year and earlier this year about changes to the judicial appointments process, raised mostly by an organized bar intent on protecting its privileges:

Mr. Lamer also denounced the much-criticized system of appointing judges to the 1,100-member federal bench, saying the process is "flawed" and there is no good reason that either police or community members should be involved in selecting judges.

... Police, as a special interest group, should be excluded, and members of the public simply don't know enough about the job of judging to competently select candidates, Mr. Lamer said.

... Mr. Lamer said judges should be screening judicial candidates seeking promotions and lawyers should be vetting other lawyers who want to sit on the bench because they are the ones who know what the job is about. "If I were on a selection committee to pick the head of neurosurgery, I wouldn't know anything," he said, by way of comparison.

... Mr. Lamer said he takes no issue with the partisan nature of the appointments as much as he does with the fact they are not from the legal community.

"Why not have lawyers and judges on the panels picking the chief of the firefighters?" he asked.

At least give him credit for honesty, a trait much lacking in the pronouncements on the matter from such outfits as the Canadian Bar Association: the entire issue is about the legal community protecting its own interests and its nearly feral reluctance to share power or allow non-professional oversight.  Note that Lamer isn't just complaining about the injection of the supposed "special interest" group of the police onto the Judicial Advisory Committees: he doesn't think anyone except lawyers should be involved (which would be a rather dramatic change to the system which has been in place for the last twenty or so years).  The bad analogies to neurosurgery and firefighting just serve to illuminate how the judiciary views itself: not as exercising a governmental power derived from the citizenry, but as a group of specialized technocrats.  It also shows that Lamer does not understand quite how governance works: at least in the province of Ontario, fire chiefs are appointed by the elected members of the relevant municipal council (see section 6(1) of the Fire Protection and Prevention Act, 1997 (Ontario)) - to make the irony that much more poignant, a significant number of those municipal council members are likely to be lawyers.

"the analytical approaches"

There's an adage which gets thrown around in law school: the Supreme Court is not final because it is correct, it is correct because it is final.  They definitively pronounce on the laws, in other words, but they don't always get it right - reliance on their authority is a function of deference to the political order, not some sort of recognition that they are infallible (it isn't unheard of for a court to reverse its own prior decision, sometimes within the space of a couple of years).

Having now had a chance to review the Supreme Court's decision in the Bryan case (a searchable .pdf of the decision can be found here), the Court is certainly relying on the second portion of that adage: the majority decision in this case is, frankly, bizarre.  The "majority" actually consists of three separate decisions: those of Justice Bastarache (by far the longest at 53 paragraphs), Justice Fish (concurring with Bastarache in the result and providing his own 28 paragraphs) and Justices Deschamps, Rothstein and Charron, who split the difference and in one paragraph assert that they agree with both Fish and Deschamps.  Which is interesting, because it seems to me that Bastarache and Fish fix their decisions on very different rationales: for Fish, upholding section 329 of the Canada Elections Act turns on the fact that what is involved is a "brief delay ... of three hours' duration at most" - it is not the suppression of information, in short, it is only a deferral (para. 80).  For Fish, to the extent that there is an infringement on a guaranteed right, it is so minimal that it is permissible.  Bastarache, on the other hand, builds his decision on the hitherto unknown right of "information equality", the first glimmerings of which were created by the Supreme Court in the Harper decision, which upheld prohibitions on third party election advertising.

Referring to these as two contrasting visions of the case should not, however, be taken to mean that they are roughly equivalent in their intellectual robustness.  The Fish position at least presents a semblance of an argument, the contours of which are cognizable: in assessing the infringement on the right of free expression, Fish is determining that, because of such a short duration, it is not so grave that it requires remedial action by the courts.  That's a debateable conclusion, but it's at least debateable.  The Bastarache position is essentially that whatever the government says it is trying to accomplish is super-awesome and the court isn't going to get in its way.  That's not a "decision", that's a capitulation.

Andrew Coyne, in his column reflecting on the decision, aptly describes what has happened: the concept of "information equality" as given function via section 329 of the Canada Elections Act, a concept previously unknown and not expressly reflected in any previous decision or statute of which I am aware, other than some vague allusions in the Harper decision noted above where the concept is never actually articulated, has been held to override the Charter-protected right of freedom of expression.  But that ultimately is only half of the story, which can be best seen by the different coverage accorded the matter from the political/news perspective (see Gerry Nicholls' post) and the legal perspective (see TheCourt.ca) (to his credit, Coyne hits both aspects in his column).  Deplorable as the ruling may be from a freedom of expression standpoint, it is just as concerning from a government accountability standpoint: the Supreme Court has essentially ruled that, in some circumstances, the government needs to provide next to no justification of its aims or methods, forcing the onus onto those challenging government power.

The Bastarache decision really should be read - since that's the only way you'll believe it.  As Justice Abella, writing for the dissent, described it, the government's argument (which was accepted whole by the majority) consists of "a combination of speculation and theory, unsubstantiated by cogent evidence”.  To properly describe the situation, note that the entire government argument rested on (1) a single survey from 2006 conducted by Decima Research/Carelton University School of Journalism and Communication, and (2) a Royal Commission (the "Lortie Report") report which is more than fifteen years old and which, and this is important, itself did not recommend a "black-out" of the type used in section 329 (the Lortie Report recommended the use of staggered voting hours).  Other than that (and we all know how exact opinion polls are), there is literally no "there" there.

The majority decision is so poorly reasoned it almost beggars belief.  The majority accepts at face value the Attorney-General's argument that "the mere fact that one voter could have general access to information about election results that another voter does not have is in and of itself problematic" [emphasis in original] (para. 12).  [It should also be noted that even this is undermined by Bastarache's later contention that he's not bothered by "a small number (less than 25 percent) of voters seeking out information privately" (para. 40).]  Also lending an air of unreality to the decision is that the majority repeatedly acknowledges that the law is unenforceable and ineffective (see, e.g., para. 79: "modern communications technology diminishes the delay's effectiveness ... [it] cannot and does not entirely prevent voters in central or western Canada who are determined to learn before casting their ballots what has transpired in the Atlantic Provinces from obtaining that information by telephone or e-mail, for example") - yet trundles forward despite that.

The Bastarache decision goes something like this:

• the government says "informational equality" is a "central assumption of electoral democracy" - and we won't question that assertion [para.12];
• section 329 of the Canada Elections Act protects "informational equality" - and we won't question that assertion [para. 12];
• section 329, and the protection of "informational equality", is a "direct result of the requirement that elections be fair" [para.22];
• courts should defer to the decisions of the legislature when it comes to how the legislature has erected the legislature framework for elections [para. 27];
• the objective of "informational equality", once asserted by the government, is "simply accepted by the Court as always pressing and substantial" [emphasis in original] [para.34];
• the government has this survey - therefore section 329 bears a rational connection to the "pressing and substantial" goal of ensuring "informational equality" [para. 40];
• in the aforementioned survey, a bunch of people said they would not seek out information about poll results if doing so was illegal - therefore, no one should be allowed to know this information [para. 40];
• section 329, based on the foregoing, has beneficial effects and no deleterious effects - and should therefore be allowed to stand [paras. 49-51]

Every time there is a gap in the reasoning (which is quite often), Bastarache invokes a totem: "logic and reason".  Can't quite see how we went from assertion A to conclusion B?  Logic and reason.  The phrase "logic and reason" is used eleven (11) times in Bastarache's decision, yet not once does he actually apply either logic or reason to the propositions set before him.  Instead, he takes the arguments of the government, says "I am applying logic and reason" and then jumps to the government's preferred conclusion.

What is truly bizarre is that section 329, over the course of the majority reasons, acquires the strength of, if not a Biblical commandment, then perhaps a law of physics: by paragraph 51 overturning section 329 apparently constitutes an assault on "the protection of Canada's electoral democracy".  For all the murmuring of deferring to Parliament, by paragraph 47 Bastarache seems to be implying that if section 329 is not kept in the Canada Elections Act, then the Supreme Court might just have to read it back in ("staggered hours, even if more extensive, as proposed in the Lortie Report, cannot alone perfectly address the problem of voter confidence. Informational imbalance remains if s. 329 of the Act is not retained").

There's really only one way around the decision: section 329 should be repealed by Parliament.  If there are concerns about poll results in the east materially affecting voting decisions in the west (something which is not supported by the evidence presented), then, as recommended by the Lortie Report, stagger voting hours or simply hold off on counting all ballots until all polls are closed.  But even doing that will not address the more pressing concern raised by the decision in Bryan: the dramatic lowering of the threshold when it comes to requiring the government to prove its case in relation to legislative action which affects our fundamental rights and freedoms.

No, You LSUC

Another round in the ongoing skirmishes regarding the Judicial Advisory Appointments Committees occurred over the weekend, and this is one worth paying attention to.  The Law Society of Upper Canada (LSUC) on Friday, March 9, 2007 sent out a press release, the full text of which (excluding contact information) is reproduced below.  Of course, it received next to no attention in the press.

"a tension that lies at the heart of modern democratic governance"

It's been a busy seven or so days, having spent a good chunk of last week in Ottawa attending a conference, and then this morning moderating a panel discussion about the CRTC's 2004 decision on whether to allow Canadian cable companies to carry al Jazeera.  All of which left little time for blogging.  Oddly enough, however, it left plenty of time for commenting on other people's blogs.  The comments revolve around the release last week of the Supreme Court of Canada's decision in Charkaoui et al.  I weighed in on the discussions over at Andrew's place and Dawg's place.  My bottom line?  I think the Court's decision is fair, considered and correct - and I think media coverage of the decision, particularly the Toronto Star's inexplicable Saturday edition which trumpeted the ruling as if it were the Second Coming, has been puerile and startlingly willing to disseminate flatly incorrect information.  The decision did not accomplish nearly so much as some of the coverage implied, nor was it as stunning a rebuke of the government position as some commentary seemed to wish.  TheCourt.ca, as is to be expected, has a great round-up post collecting informed commentary from a variety of sources, and anyone who is interested in the matter is strongly encouraged to peruse the links provided there.

"sympathetic to this government"

Canada's worst newspaper once again evidences why it so richly deserves the sobriquet with this piece of hack journalism about recent federal appointments to the Judicial Advisory Committees.  Unfortunately, the idiocy appears to have spread, prompting not only a CP follow-up, which is screeching its way around the Toronto Star, but an oddly timorous report from Macleans.ca and even regrets from Andrew Coyne.  The smear continues for a second day with this piece, which mostly regurgitates the same misplaced insinuations and is, again, inexplicably placed on the front page (well, "inexplicable" if one assumes that news coverage is meant to be unbiased).

Once you wade through the lousy reporting, here's the bottom line: the government is using the slots reserved for partisan political appointments for... wait for it... partisan political appointments.  Sort of.  In some cases.  Kinda.  Perhaps 16 out of 33 times.

"common sense has prevailed"

A useful object lesson today for those who regard judicial decisions as holy writ: the Ontario Court of Appeal, in an unusual five-panel unanimous decision, overruled its own horrendously flawed Household Realty v Liu decision from 2005, a decision which had basically facilitated title fraud, forcing numerous Ontarians through the no doubt enjoyable prospect of losing their homes.  My earlier post about Susan Lawrence's court battle can be found here.  Everyone who owns real property should take a second to whisper a silent thanks to Lawrence for having the fortitude to undergo the stressful process of not only having her house stolen out from under her, but then fighting through both a trial and an appeal (and racking up likely tens of thousands in legal fees), in order to end up at what should have been the obvious result from first instance: that an innocent homeowner should not face the burden of fraud.  If anyone should, it should be the government which vouches for the land titles system.

"maintain the status quo"

The lowest point for the entrenched interests of the Canadian legal profession over the last twelve months occurred when former Minister of Justice Vic Toews' mused about adding a police representative to the judicial advisory committees which advise on the selection of new judges.  The entire organized bar, from the Chief Justice through the various presidents of the bar associations, let out a collective shriek, helpfully demonstrating that (a) they will stand for no attempts to modify the existing privileges of the profession, and (b) they seem to really hate cops.  Ezra Levant says most of what needs to be said in this piece, published in Canadian Lawyer magazine.  As Ezra rather viciously points out, "Do you think the [Canadian Judicial Council] would have objected had Toews proposed a representative from the John Howard Society?".  Indeed.

"the fraudster problem is unworkable"

There's a few rules of thumb you learn in law school.  One is that the banks always win.  Nine times out of ten, if you have a bank involved in a case, somewhere, somehow, they come out ahead.  The second thing you learn is that there are times when judges don't have the faintest clue what the real world effects of their judgments will be, and even when the deleterious effects are pointed out to them, they still don't really care.  Those, and number among them vast swathes of the commentariat, who have recently decided that judges can not ever do anything wrong and that to question either their decisions or their appointment process in even the most marginal fashion is to commit a sin greater than what in previous centuries would have been termed heresy, would do well to acquaint themselves with the Ontario Court of Appeal decision in Household Realty v Liu, wherein the court, in its wisdom, decided that people should get screwed out of their houses, if at all possible.

To recap the decision: Lik Liu owned a house.  His wife was a gambling addict who forged a power of attorney in Liu's name, and used it three times to grant mortgages to three different lending institutions (TD Bank, CIBC and Household Realty).  Two of the mortgages went into default, and one day Lik Liu wakes up to discover that the banks are foreclosing on his house, on the basis of mortgages obtained via fraudulent means, of which he had no knowledge.  His house, in other words, was taken out from under him.  Because the mortgages had been registered on the government's land titles registry, the court (evidently in reliance on the first rule of thumb I mentioned above), decided that, out of everybody who deserved to suffer in this situation, it was clearly Lik Liu who deserved to suffer the most, and ruled in favour of the banks.  Lik lost his house.  Whatever gets registered on the system, said the court, governs; of course, there's nothing to stop anyone from registering a fraudulent conveyance on title.  So the system is egregiously deficient, and it is the innocent homeowner who is forced to bear the heaviest burdne.

Now, the facts of the case may not be as cut and dried as some would like, since some would argue, and have, that Lik should have known that his wife was going through hundreds of thousands of dollars in gambling losses, he should have known, etc. etc.  But in reliance on the Household Realty decision, even more heart-wrenching, for those who need them, cases have resulted (see here for some): where a homeowner who had no knowledge of or connection with a con artist loses their house because a fraudulent mortgage or other fraudulent conveyance has been registered on the title to the property.  Try to imagine the stress involved in losing your house, or in trying to fight against a system which is completely stacked agains the innocent homeowner.

So, what has the incompetent government of Dalton McGuinty done to address this situation, more than a year later, and in the face of a rising tide of fraudulent transactions which have been enabled by the Ontario Court of Appeal decision?  Nothing.  Oh, they've made some marginal changes to a provincial compensation fund which mean that instead of spending years (plural) trying to get money to compensate you for the loss of your house it will only take you around a year (singular) (plus the thousands of dollars in legal fees you'll likely need to pay in order to obtain the compensation in the first place).  They've tabled legislation to provide for increased penalties against the con artists (who are rarely caught and even more rarely made to pay the penalty), but they've done nothing to actually help people get their houses back.  Compare this to the situation earlier this fall where they were able to move within less than 48 hours after a car crash to introduce a new seatbelt law which will likely accomplish nothing, but will make them feel better about themselves - but if you're house gets stolen out from under you, well, McGuinty and his gang are too busy doing... well, doing something, but it's not entirely clear what... to help you.

So it's been left to yet another victim of fraud and the Ontario Court of Appeal decision to go through the emotional and financial stress of trying to fight this through the courts.  Based on the report of the arguments which occurred yesterday, it doesn't sound like the Court of Appeal is inclined to reverse its earlier decision.  So everybody gets let down by not just the enabling courts, but by the negligent government as well.

"Judge Trafford called the offences 'serious'"

Another sentencing decision, handed down by a member of the judiciary, that sacred class of divinely-inspired paragons who, pace the Toronto Star and Globe and Mail, you are not allowed to question or criticize.  So we will refrain from so doing.

Lorne Cook, a former UCC teacher, molested a 12-year old and a 13-year old.  Ontario Judge Brian Trafford handed down two one-year "sentences", to be served concurrently, and to be served under house arrest.  The story is an odd one.  Cook fondled the boys while "conducting a mock kidney transplant operation in a classroom".  At this point, let's turn it over to the Star to continue the description:

Cook placed a catheter on the boys after peeling down their underwear. ... The judge said that in one instance Cook pulled back the foreskin of a boy's penis and held the shaft to stabilize the penis while using his other hand to put the catheter on the tip of the penis. In both cases, Cook was alone with the boys when the touching occurred. Neither youngster consented to Cook's actions.

In short, in separate incidents in 1991 and 1993, the man took a child into a classroom, took down the child's underwear, then applied a catheter to the child's penis.  Needless to say, neither child consented.  But it's okay!  In one of the all-time great swerves, according to Cook's defence counsel, he just got "caught up in the moment".

We should also clarify that "house arrest" doesn't really mean "house arrest", in any sense a layperson would understand it.  It means this:

Cook must remain in his residence for the next 30 days, unless to attend church or for medical advice or treatment. Then he must regularly report to a supervisor while he serves out the remainder of his sentence at home.

So, thirty days of what any normal person would understand as "house arrest", then he has to "report to a supervisor".  Now, let's take a look at why Judge Brian Trafford thought 30 days spent at home was an appropriate sentence:

He said Cook, by all other accounts, was an esteemed teacher with no previous complaints against him and is not a threat to public safety. There is little likelihood he would re-offend, partly due to his age, and there were no victim impact statements produced

Notice anything missing?  Any mention of punishing the offender for the crimes committed.  But it's all good - as reported, Jean's wife "broke into a broad smile" when the sentence was read out.  You don't say...

"did not spare their victims"

A good indication that federal Justice Minister Vic Toews is doing the right thing is that his proposals inevitably send all the right people into blinding conniption fits of rage. Witness his proposal last week to add one more appointee (drawn from law enforcement ranks) to the Judicial Advisory Committees, bringing their total to eight.  This prompted an outcry from the Chief Justice of the Supreme Court, the Canadian Bar Association and, most amusingly, the Globe and Mail, which war-headlined the proposal on its front page and screeched its way through an editorial denouncing the temerity of it all.  Quite how the judiciary became the sacred cow that it has become for large swathes of the semi-official Canadian commentariat remains a mystery, but let it be said that they do not approve of even beginning to question the functioning of the judiciary.

Chris Selley, whose intellectual incisiveness I have nothing but the highest respect for, nonetheless seems to generally share the general view of the Globe and Mail on Vic Toews: that he’s up to something, and that whatever it is, it's bad.

Selley offers a run-down of the most recent contretemps over at Maclean’s, and events have conspired to lay bare the hypocrisy and ill-informed nature of the Globe’s position.  Here is the Globe, as quoted by Selley:

The Globe's editorial was much less conciliatory, calling Toews' proposals "a misguided populism that harks back to the Reform Party roots of the governing Conservatives. It is exactly what Canadians outside the core Conservative constituency feared from the Stephen Harper government: an attempt to change the justice system's colours by challenging the supposed hold of the bleeding-heart, soft-on-crime, gay-rights-supporting, Charter-of-Rights-respecting (and probably café-latte-sipping) judges."

The Globe having found religion on the latter point is rather charming, considering that they weren’t exactly in the frontline of this issue over the past few years, when some of us were bellowing rather loudly that the process for appointing judges is in need of overhaul.  But set that aside for the moment: if they’ve become convinced of the need for an overhaul of the system just because a Conservative (and conservative) justice minister has them shaking, so much the better.

Here’s the funny part: “challenging the supposed hold of the bleeding-heart, soft-on-crime…”.  The entire passage is meant to be read with a sneer – as if, they are saying, there are these “bleeding-heart, soft-on-crime” judges.  But unfortunately there are.  And Toews proposal is an attempt to at least inject one countervailing voice on the panels which assess judges.  Just one voice, mind you – and not even a binding one, since the Minister retains his or her discretion to appoint who he or she sees fit.  But again, set that all aside.  Selley queries the “motives” of Vic Toews in making such an apparently outrageous proposal.  Here’s a hint – maybe he’s hoping to shine one small ray of light onto a judicial culture which enables things like this travesty:

Winnipeg police and justice officials have called the case one of the worst they've ever seen, and it has drawn comparisons to the shocking sex murders of two Ontario schoolgirls by Paul Bernardo and Karla Homolka.

The 25-year-old woman, who was convicted of three counts of sexual assault and forcible confinement, was to be released Tuesday after Justice Gerald Jewers gave her a sentence equal to the two years she spent in pretrial custody.

Her common-law husband, who was convicted of eight charges including kidnapping and sexual assault, was sentenced to seven additional years in prison.

The reporting of stories like this inevitably involve some obfuscation, since the reporters (and their editors) evidently don’t want readers to understand everything.  Set aside the fact that the female perpetrator is only getting two years in jail.  The “seven years” for the male perpetrator isn’t actually “seven years” – at most it will be more like five (perhaps less, since it's unclear the extent to which pre-trial custody is being credited against the sentence), due to statutory release laws which mandate the release of convicted criminals.  Why? Who knows?  But it gets better.

What is it that these people did?

One young victim, a 12-year-old cousin of the woman, testified she was held as a sex slave by the couple for several months, given pills and alcohol and tied to a bed and raped.

The victim, now 14, said she was twice abducted off the street, including one time that involved her being thrown in the trunk of a car.

Another victim, now 20 years old, testified she was 13 when she started going to the couple's house, where she was offered free liquor. The first time, the man raped her while the wife held her down, she said.

Fear kept her going back to the house, every weekend for a year or two, because the man told her he knew Hells Angels members and he would torture and kill her and her family, she said.

Got that?  So, at a minimum, we’re talking multiple rapes, kidnappings, forcible confinements, assaults, death threats.  Let’s turn it over to the Crown prosecutor:

Crown prosecutor Jill Duncan had asked for sentences of up to 18 years for the man and up to eight years for his spouse. … "The extent of the depravity and perverseness of this case is rarely seen."

Again with the obfuscation.  See that “18 years”?  That’s code.  For a prosecutor to ask for an 18 year sentence is… almost unheard of.  We’re talking about the worst of the worst here.  Prosecutors generally won’t even ask for such a lengthy sentence, since they know that judges will almost literally never hand one down.  (Again, we need to put to one side the fact that even this artificial limit of 18 years is a judge-created distortion of the system: the Criminal Code allows for longer sentences for serious crimes, but the judiciary has decided that it is essentially going to “cap” sentences at about 18 years.  Why? Who knows?  And don’t ask, ‘cause you’re not allowed to criticize the judges, remember.)  These crimes must have been ferocious for the Crown to even try for 18 years.

Justice Gerald Jewers handed down his laughably light sentence in light of the foregoing, and in light of this: neither of the criminals showed any remorse, and the man even “aimed a smile towards some of the victims' relatives and rubbed his hands together” as he was being led away.  On what conceivable basis were such sentences handed out?  Well, Jewers was evidently swayed by the fact that the woman “did not have a prior record and the man had only one dated, minor conviction”.  So, maybe on the next set of horrific crimes these two commit we’ll end up with a judge who has an interest in punishing the criminals.

You want a “motive” for why Toews is doing what he’s doing, and why some of us support him so ardently?  Because of cases like this, and the decisions of people like Gerald Jewer.  Perhaps the Globe’s editors can go back to laughing at the supposed bogeyman of bleeding-heart judges – the rest of us will just need to continue hoping we don’t bear the fallout of their actions.