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?

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."

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.

Great Moments in Canadian Sentencing 03.25.09

A son of an internationally acclaimed reggae singer will likely spend less than another six months in jail after being given a 6 1/2-year federal prison sentence yesterday for killing a child under his care.

Justice Bruce Durno sentenced Garfield Anthony Sibblies, 40, of Brampton, yesterday. But since Sibblies has spent the equivalent of almost six years in custody – based on the usual two-for-one credit inmates receive for pre-trial incarceration – he could be released after serving two-thirds of the remaining six months in a provincial jail.

Sibblies pleaded guilty Nov. 28 to manslaughter in the March 22, 2006, death of baby Elijah, who was six days short of his first birthday.

An autopsy revealed the boy had 38 injuries but could not determine a single cause of death.

For whatever bizarre reason (*cough*) Bob Mitchell's Toronto Star story resolutely refuses to point out that Sibblies has only spent less than three years in prison - preferring instead to couch it in the magical formulation "the equivalent of almost six years".

Thankfully, it looks like the absurd practice of granting "2 for 1" credit for pre-sentencing custody is about to come to an end (though I won't hold my breath).  My favourite part of that story is this:

Irvin Waller, founding director of the Institute for the Prevention of Crime at the University of Ottawa, said the legislation is just another example of politicians being tough on criminals and not on crime.

Yes, gods forbid that we be "tough on criminals".  They already have so many problems, so, really, why would we want to add another one to their list?

Great Moments in Canadian Sentencing 03.10.09

Of all the idiotic sentences handed down, none are more idiotic than those handed down in drunk driving cases.

A Mississauga father of two young children today was given an 18-month jail sentence for the drunk driving death of a taxi driver.

... In sentencing him, Justice Michael Tulloch told Harrison that he seemed to be "a decent man" with many positives but he was lucky he didn't receive a prison sentence.

... But he drank and crashed his Mercedes head-on into a taxi with four young men, who chose to be driven home instead of risking driving because they had been drinking.

"Impaired driving is an epidemic in our society and needs to be denounced," Tulloch told a Brampton court.  "The gravity of the offence and the degree of responsibility requires incarceration..."

... The convicted man was already on bail - and under a court order to not consume alcohol - when he killed Rayment on July 2, 2005 while impaired, court previously heard.

Saying that drunk driving "needs to be denounced" and then doing nothing of particular note to "denounce" it is a particularly nice touch.

Great Moments in Canadian Sentencing 02.26.09

Offered without further comment (because, really, what more could you possibly say?):

The Ontario Court of Appeal has upheld a five-year prison sentence for the instigator of a vicious, racial attack on a disabled, black man.

... “This was a senseless, brutal and racially motivated attack involving gratuitous violence in a public place against two strangers,” said Mr. Justice Karen Weiler, Mr. Justice Michael Moldaver and Mr. Justice Paul Rouleau.

“The physical injuries to the victim, Mr. Pitia, were very serious and the psychological damage to him is severe and continuing. In all the circumstances, even if the appellant should have received slightly more credit for pre-trial custody, the sentence, in our view, was fit.”

... Five of those involved in the attack were ultimately charged. Two were acquitted after a trial, and two others pleaded guilty and were received sentences of fifteen months and twelve months.

... Arguing before the Court of Appeal, defence counsel Tim Breen maintained that Mr. Bradley's sentence was badly out of proportion to those of his accomplices. He noted in particular that one of his client's accomplices had 26 criminal convictions on his record – a total that was not far off Mr. Bradley's total of 43 convictions.

Alright, one comment: forty-three previous chances to get it right, and they still manage not to give the guy a meaningful sentence?

Great Moments in Canadian Sentencing 02.25.09

On Thursday, Munro will plead for his freedom at a parole tribunal near Chilliwack, B.C. Munro, 58, first submitted an application for parole more than a decade ago, but withdrew the request in May 1997 after an intense media backlash.

Thursday's hearing will take place at his minimum-security prison, Kwikwexwelhp Healing Village, which puts aboriginal spirituality at the centre of its rehabilitation program. Munro is not aboriginal but has converted to native teachings.

... About 20 minutes earlier, 28-year-old Munro and his brother, Jamie, 21, had walked into George's Bourbon Street restaurant and told everyone to hit the floor.

When Sweet went inside to investigate, he was blasted once in the chest with a shotgun. The father of three was left to bleed to death on the floor for more than an hour as the Emergency Task Force tried to negotiate with the Munro brothers, who reportedly taunted the dying officer, drank and took heroin.

... The younger Munro was released on parole in 1992.

So, commit armed robbery and kill a cop (to say nothing of the spill-over effects on others present at the crime scene), and one of you will be out of jail in around ten years, while the other one gets to hang out in a minimum security "healing village".  If I ever decide to inaugurate a Gardner Award, this one's certainly going to be in the running.

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.]

Incapacitation

The 2008 Throne Speech of the British Columbia government contained the following statement:

British Columbians want to understand why sentences in their province tend to be shorter than in other provinces for crimes such as homicide, theft, property crimes, fraud, impaired driving and drug possession.

There were some questions raised as to whether the perceptions of British Columbians matched the facts - did sentences in British Columbia "tend to be shorter than in other provinces" for the list of specified crimes?  Well, that should be fairly easy to determine, right?  See what the sentences are in British Columbia for the listed crimes over a specified period of time, see what the sentences are in other provinces for those same crimes over that same period of time, compare. 

Simple, right?

You clearly don't know any criminologists.

Here [pdf] is what the criminologists managed to come up with: 94 pages (!) of tables, charts, graphs, "box scores" (their term) and wording all of which manage to come up with only this "conclusion" (which took five pages of executive summary to get to):

British Columbia in its sentencing does not look dramatically out of line with the portion of the rest of Canada for which we have comparable data.

Of course, in order to get to that "conclusion", they have to work remarkably hard to avoid their initial conclusion (see pages 25-30) that sentences in BC are in fact more lenient.  In order to "get around" this conclusion, which is, as they note, supported by the available data, they start jiggering the data into increasingly implausible and artificial meta-categories of crimes.  So, instead of comparing "homicide" sentences to "homicide" sentences (which would be the obvious point of comparison if you look at the statement from the speech which prompted the entire enquiry), they start comparing the broader category of "offences against the person".  When even that doesn't quite get them where they need to be, they construct new categories of comparison by dividing sentences into those which are longer than 3 months and those which are longer than 6 months.  By that point, the analysis has strayed so far from what the initial statement said that it bears almost no relation to it and serves the useful purpose of being capable of interpretation into whatever conclusion the criminologists are aiming for.

[UPDATE: I think my point in the foregoing paragraph needs to be put more bluntly: on page 28 of the report, the actual "conclusion", based on the plain English reading of the statement from the Throne speech, is reached: "British Columbia offenders sentenced to prison appear to be getting shorter sentences".  There then follows 66 pages of intricate hermeneutics, with the data being re-interpreted, massaged, re-cast and generally diddled until the "correct" conclusion (i.e., "leniency? what're you talking about, leniency?") is reached.]

But what's of more interest is this passage, found on page 8.  The passage only makes sense if you bear in mind that, for many criminologists, they absolutely refuse to countenance the proposal that putting convicted criminals in jail is an effective way to prevent crime.  Here is the passage:

Incapacitation has quite different problems.  Though it is logically true that a person who is incarcerated is not offending in the community, this crime control strategy has its own limitations.  In the first place, incapacitation (as well as deterrence) generally only becomes relevant as a crime control strategy when the proposal is that a sentence be disproportionately harsh.  Second, even if policy makers were willing to violate the requirement of proportionality in sentencing, the problem that is then faced is that of identifying in advance those people who are likely to be, in the future, high rate offenders deserving of sentences based on incapacitation.

Incapacitation is based on a fairly simple notion: there are people who commit crimes; if you put those people in jail, they are separated from the community, and are therefore no longer capable of committing crimes.  Ergo, at the risk of repeating myself, put them in jail, and they won't be committing crimes.

That's a little hard for the writers of this report to accept.  So we end up with this passage, which I'm re-rendering for purposes of discussion:

Incapacitation has quite different problems.  Though it is logically true [A] that a person who is incarcerated is not offending in the community, this crime control strategy has its own limitations [1].  In the first place, incapacitation (as well as deterrence) generally only becomes relevant as a crime control strategy when the proposal is that a sentence be disproportionately harsh [2].  Second, even if policy makers were willing to violate the requirement of proportionality in sentencing [3], the problem that is then faced is that of identifying in advance [4] those people who are likely to be, in the future, high rate offenders deserving of sentences based on incapacitation.

The passage is really quite a remarkable achievement.  In that it makes no sense.  To be snarky, note, as in [A], that when someone tries to dismiss logic from the debate, it's usually never a good sign in favour of their argument.  Oh, I get that logically someone who is incarcerated can't commit another crime, but we're operating here on a totally deeper level than mere "logic". 

Anyways.  The first bizarre element of the argument contained in the passage is that statement [2] simply (a) does not follow from, and (b) has no relationship to, statement [1].  Why are "disproportionately harsh" sentences the only ones which serve to meet the goal of incapacitation?  "Disproportionate" as compared to what?  If someone is incarcerated, they are incapacitated.  Period.  Full stop.  It doesn't matter whether you measure their sentence severity against that of someone else - they just can't commit a crime, regardless of what sentence someone down the hall is serving.  The two concepts have nothing whatsoever to do with each other.

But "proportionality" is only a rhetorical device to cloak their flimsy argument in pleasant-sounding platitudes.  Who doesn't want to be "proportional"?  It sounds so nice, so reasonable.  Let's be "proportional".  Again, however, measuring proportionality has no impact on the question of whether an incarcerated individual is incapacitated for the duration of their incarceration - they are.  Which is why [2] and [3] are nonsensical.

One of my favourites, however, is [4].  I quote: "the problem that is then faced is that of identifying in advance those people who are likely to be, in the future, high rate offenders deserving of sentences based on incapacitation".  Yes.  That does seem like a puzzle.  How could we possibly, out of the millions and millions of people who make up Canadian society, determine who among them will, at some vague unknowable point in the future, become "high rate offenders"?  Troubling.  Oh, wait a second!  I think I've stumbled upon a possible answer!  It's wacky, admittedly, but stay with me here: let's use the criminal justice system to determine who needs to be incapacitated!  Howzabout we use this new-fangled device called a trial to see who has committed crimes and who continues to commit crimes and then... wait for it... put those guys in jail for a good long time. 

Radical, I know; probably too dumb for the brow-furrowed analysts who are into this sort of thing.  But such overly-simplistic thinking might perhaps have saved our judiciary from the idiocy and embarrassment of having to answer for things like this:

Saying his city is plagued by a "ludicrous" trend that sees career criminals released back onto the streets despite dozens of convictions, Vancouver's police chief is calling for a 30-strikes-and-you're-out policy for the worst chronic offenders.

Or this:

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.

Or this:

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.

... Lavallee, 52, suffers from a psychosexual disorder and has raped seven women, mainly older than him at the time. ... He has 40 criminal convictions and has spent more than half his life in jail.

Or this:

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.

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.

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

I could go on.

None of this is complicated.  It's not nearly as complicated as the report is desperate is render it.  It's simple: some people commit crimes; we don't like it when people commit crimes, therefore we should find a way to stop them from doing so.  When people who commit crimes are in jail, they can't commit crimes.  I'll leave it to you to put it all together.

Great Moments in Canadian Sentencing 02.04.09

Love it:

Justice of the Peace Vernon Chang Alloy was in a whimsical mood last year when he granted bail to Donovan Sitladeen on serious cocaine-trafficking and gun charges.

"I think I'm going to take a flyer - and I suppose I will hear if I do take the flyer and it blows up in my face," Mr. Alloy said. "But that's why they pay me the little bucks - to take these flyers."

So the physical safety of the community was put at risk because some JP was bored.  Or, more precisely, because some JP was bored and because he faced no meaningful consequences if he got it wrong when he decided to "take a flyer".

Happily, some adult supervision was on hand:

Madam Justice Bonnie Wein of Ontario Superior Court rescinded the bail order on appeal shortly afterward, blasting Mr. Alloy for issuing a mishmash of inappropriate comments and muddled law.

"Even after editing, the reasons remain largely incoherent, filled with ramblings and illogical statements," Judge Wein said in a ruling that remained under a publication ban until recently.

She observed that Mr. Alloy appeared not to understand the legal requirements of a bail hearing.

You don't say.  Here's a quick remedy for situations like this: remove the immunity from liability currently enjoyed by the judicial apparatus.  As in every other area which tort law touches, it will be amazing just how seriously people take their responsibilities to protect the public once they are realize they could be out of pocket for neglecting them.

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.

Great Moments in Canadian Sentencing 07.17.08

He killed 43 people and got a chance to redeem himself, but he squandered it and went back to jail under the double stigma of being a snitch and a child molester.

Now terminally ill, Yves (Apache) Trudeau has received parole again

Sweet.

What was Dan Gardner's priceless line again?  "In most cases today, serious criminals are seriously punished."  Yep.

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.

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?

Great Moments in Canadian Sentencing 05.02.08

"They used him as a combination punching bag and soccer ball," said Justice Eugene Ewaschuk before sentencing Jeffrey Hall and Brian Deganis in a Toronto court yesterday afternoon for the death of Paul Croutch.

"The accused literally stomped Mr. Croutch to death," said the judge, who added the savagery of the beating put to shame the violence of "soccer hooligans."

The maximum possible punishment for a conviction of manslaughter pursuant to the Criminal Code of Canada is a life sentence.

The sentences handed down in this case?

10 years for the beating death of a homeless man.

What with, I don't know - call it inflation, 10 years ain't quite what it used to be:

Based on time served prior to sentencing, Deganis, who has been in custody since his arrest, will serve five years and six months, with a possibility of full parole after serving two-thirds of the sentence.

Hall will serve 10 years and eight months and will be eligible for parole after serving between one- to two-thirds of his sentence.

In completely unrelated news, and on the somewhat tenuous theory that granting bail is at least a component of the sentencing regime:

Rahimullah Shahghasy rushed to his wife Nazifa's aid as she was being brutally stabbed to death only to die himself at the hands of a stranger in a frenzied knife attack. ... A 28-year-old remains under guard in Sunnybrook hospital in "critical but stable" condition with self-inflicted neck wounds. He is expected to be charged with two counts of second-degree murder once his condition improves.  English refused to name the man, who is currently out on bail for violent crimes.

Anyone want to take odds on when one of the reporters covering this story, rather than bothering the children of the victims (""Please just get in your cars and get off my street," the couple's distraught [sic] said when confronted by media out front of the house"), or lurking around the house of the mother of the accused, will track down the JP who granted bail to the accused and say "Hey, great work! Can I get a comment?"

Great Moments in Canadian Sentencing 01.29.08

Reader and buddy Mike H pointed me to this story, which ran while I was out of town last week:

A paroled murderer who stabbed a man during a crackhouse binge has been sentenced to eight years in prison.

Kevin Humphrey, 43, was on parole from a life sentence when he stabbed Richard Kent multiple times with a folding knife and then slit his throat on Oct. 16, 2006 in a crack house near Church and Wellesley Sts.

Months before, despite three breaches of parole, he was paroled again when an expert deemed him manageable in the community.

Humphrey admitted that had his own finger not been in the way of the knife as he cut Kent's throat, he could have killed the man.

Is there some sort of ink the newspapers could develop so that when they use the word "expert" in a story like this, it shimmers and burns on the page in the manner it so obviously should?  Humphrey was convicted of second-degree murder in 1983.  His "life sentence" is, of course, nothing of the sort.  He gets paroled three times and breaches parole each of those three times, then gets paroled again and tries (and very nearly succeeds in his efforts) to kill someone - and gets another kiss from the system.  And, of course, the "expert" remains unidentified and continues on apace, consequence-free.

The nicest touch is when the reporter, with commendable restraint, notes that Humphrey "will serve his new eight-year term concurrent to his life sentence" - as opposed, I guess, to serving it after the expiration of the "life sentence".

"obviously dysfunctional"

I was going to write something about the Robert Latimer parole decision, but Dawg rather nicely (and with much more restraint than I'm sure I'd be able to manage) covers everything that needs to be said.

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 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.

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.

"brutal, vicious and sustained"

If, like me, you make a habit of paying attention to criminal justice sentences, I think you'll find that one of the most interesting aspects is that some judges, despite handing down often ludicrously light sentences, are convinced that they are in fact laying a heavy hand on the criminal.  Let's take, as an example, the sentence given to Daniel Sylvester, the killer of Alicia Ross.  Now, the sentence given to Sylvester is not "ludicrously light", though I would argue it is relatively lenient, given the circumstances.  Regardless, let's compare the sentence he was given to what he could have been given.

Sylvester was convicted of second degree murder.  The distinction between "first degree" murder and "second degree" murder is somewhat subtle.  In order for a homicide to be classified as murder (see section 229 of the Criminal Code), it must meet one of the following criteria: the killer must have (a) meant to cause the death, (b) meant to cause bodily harm which the killer knew was sufficient to cause death,  (c) meant to cause death or sufficient mortal bodily harm and accidentally caused the death, or (d) done something with an unlawful unpurpose that the killer knew or should have known would be likely to cause death, and thereby causes the death.

For a murder to be "first degree" it must either have (see section 234 of the Criminal Code): (a) been planned and deliberate; (b) been a contract killing; (c) been the murder of a peace officer; (d) occurred during a hijacking, kidnapping, hostage-taking or sexual assault; (e) occurred in the course of a pattern of criminal harassment; (f) occurred during a terrorist activity; (g) occurred in the course of using explosives for a criminal organization; or (h) occurred in the course of criminal intimidation.

Other than those categories, all other murders are "second degree".

It's a pretty critical distinction.  Pursuant to section 235 of the Criminal Code, anyone convicted of murder is sentenced to "imprisonment for life".  That sentence is, of course, virtually a complete lie - almost no one in the Canadian incarceration system serves the rest of their life in prison.  For first degree murder, parole ineligibility (i.e., the minimum number of years an inmate must serve before being considered for release on parole) is automatically set at twenty-five years (see section 745(a) of the Criminal Code). 

For someone convicted of second degree murder, minimum parole ineligibility is set at ten years (see section 745(c) of the Criminal Code), with a maximum parole ineligibility of twenty-five years.

(Of course, even those advertised minimums are functionally lies - "Inmates incarcerated for second degree murder become eligible for consideration for unescorted temporary absences and day parole three years before their full parole eligibility date."  More than 60% of applicants convicted of second degree murder are granted day parole on their first application (see Table 4 at the link; Table 5 is incorrectly labelled in the html version of the report linked to - it actually shows the percentage of day parole applications granted on first and subsequent reviews - which means the numbers climb to between 75% and 85% of all second degree murderers being granted day parole, as shown by Table 5 in the .pdf version of the National Parole Board report).  Even before they become eligible for "day parole" (which, remember, is three years before they become eligible for "full parole"), they are eligible for "temporary absence" programs, which means they can, you know, just walk out of prison for a while ("95% of all offenders released on day parole first reentered the community on temporary absence programs").) 

So, when dealing with Daniel Sylvester, Justice Edwin Minden had the option of giving Sylvester anywhere between ten and twenty-five years of prison time (which isn't really "prison time" because, as noted above, Sylvester would in all likelihood be wandering around unescorted outside of a prison a good few years before the date indicated by the sentence handed down by the judge).  Minden described the killing as "brutal, vicious and sustained".  The crime was, in the words of Justice Minden, "heinous", an "act of extreme cruelty".  The victim "sustained at least 33 fractures, including most of her ribs and her nose and right cheekbone were broken. Her breastbone was also cracked in the middle and three of her neck vertebrae were also fractured".  Even the judge, in the words of the Toronto Star, "doubted [Sylvester] could ever be rehabilitated".

Yikes.  So, did Justice Edwin Minden "throw the book", to use the colloquial, at Daniel Sylvester?  Don't be absurd - despite the fact that he could have sentenced him to twenty-five years of parole ineligibility, he demurred and gave Sylvester sixteen years, or a little less than half of the mid-point between the minimum of ten years and the maximum of twenty-five years.  A nine year gap exists between what Sylvester was given and what he could have gotten.  Which raises the question - what exactly would Daniel Sylvester had to have done in order to warrant the full sentence which could have been given to him?  What would constitute those nine missing years?  Sylvester, remember, attacked his neighbour in a, to reiterate, brutal, vicious and sustained assault, which was an act of "extreme cruelty and callousness".  What does our judiciary need to see before they sentence someone to the maximum amount permitted under the law?

Even the judge seems to have at least subconsciously realized his sentence would be slightly ridiculous in light of what Sylvester did - Minden felt the need to "[remind] the court it didn't mean the "prison doors will open" for [Sylvester] on the date of his parole ineligibility" (of course not - they'll in all likelihood open even before the date of his parole ineligibility).  And in a nice bit of buck-passing, he informed the court that "it will be up to the National Parole Board to decide if [Sylvester] spends the rest of his natural life locked up in a federal penitentiary".  Which is technically correct, but why didn't he see fit to at least delay that day of reckoning by a further nine years (not counting "temporary absences" and "day parole" before the sixteen year mark)?  You will often hear the argument from the judiciary that criticism of them is unwarranted because their hands are tied by the laws written for them by the legislature - so why do they consistently refuse to use the tools which are given to them?

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.

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.

Great Moments in Canadian Sentencing 03.31.07

• "The mother of a young New Brunswick man killed when a driver who consumed 24 beers smashed into her son's bicycle says a sentence of two years house arrest is too light a punishment."  In the words of sentencing judge Graydon Nicholas, drinking and driving "must be denounced".  Mission accomplished!

• "A teen killer, who in a jealous rage fatally beat his girlfriend with a baseball bat, has never participated in an anger management program or had treatment for his drug and alcohol abuse while in jail ... will finish his three-year sentence on Dec. 21 this year"

"died several hours later from massive head injuries"

Another winning moment in Canadian criminal sentencing:

Two men sentenced to life in prison for kicking Burlington student Mathew Daly to death each had their parole eligibility set today at 13 years and 12 years, respectively.  Another man who was also convicted in the brutal slaying will be set free later today.  This means Sam Nop, 24, and Fadil (Neil) Mujku, 23, who were both convicted of second-degree murder in the brutal beating death of the Burlington college student, could be out of prison in six or seven years and Stephen Papadopoulos, 26, because of a two-for-one credit for time served, will be set free later today.

Excellent work.  This likely requires a bit of explanation:

Because Canadian law provides for the 2-for-1 credit, Nop — who's spent five years and nearly four months in jail — can apply for parole on Oct. 10, 2014, while Mujku can seek to be released a year earlier.  Because of the 2-for-1 credit, it means the 26-year-old Papadopoulos has served an equivalent of nearly an 11-year sentence. As a result, Justice Dawson sentenced him to one more day in jail and three-years probation, meaning he will be released this afternoon.

It doesn't, actually.  It's entirely at the judge's discretion as to how much "credit" to give convicted criminals (see paras. 44-46 of the Supreme Court of Canada decision in R v Wurst).  The "two-for-one" credit rule is a judicial creation, and entirely perpetuated by the judiciary - because it is an entirely malleable standard, which can be varied by a judge in his or her discretion.  It's worth remembering that, as described by the Supreme Court, the sole purpose of the super-credit is to account for the "harshness of the [pre-trial] detention due to the absence of [educational, vocational and rehabilitation] programs".  In short, beat someone to death and you get your sentence cut in half because you didn't, I don't know, get a chance to bake cookies or play in a vegetable garden.

"he remained silent"

Somebody, somewhere, should do some kind of study into the phenomenon that the Canadian judiciary, while evidently congenitally incapable of handing down tough sentences, apparently genuinely believe that when they reward convicted criminals with a kiss, they are somehow bringing down the full primordial fury of the law:

Justice Mossip told the court that a penitentiary sentence was necessary to send a strong message to the community that you will "pay a severe penalty"...

Oooo, a "severe penalty".  But a "severe penalty" for what?  Well, a few years ago Daniel Rouleau decided to drink his day away and then drive home.  On the way, he killed a 72-year old pedestrian, who was returning from his evening volunteering at a local bingo hall.

So, what was the "severe penalty" handed down by Justice Nancy Mossip?  Three years.  Which means, with statutory release, that Rouleau will, at the absolute maximum, spend two years behind bars.  Of course, Rouleau had already been previously convicted of impaired driving.

As Daniel Rouleau, 55, was led from the courtroom to begin serving his penitentiary sentence ... [he] turned and smirked at several family members, including Landry's daughter, Marie Wallis.

You don't say...

"society would be 'revengeful' if he couldn't get out"

It is worth occasionally reminding people of just how wonderful the Canadian criminal justice system truly is.  First-degree murder is the most serious crime (barring certain treason-related offences) of which one can be convicted under the Canadian Criminal Code.  A conviction results in an automatic sentence of "life", "without the possibility" of parole for a period of twenty-five years.  The sneer quotes are intentional: almost nobody spends the rest of their life in jail, and the "faint hope" clause (currently section 745.6 of the Code) means that after only fifteen years, a murderer is entitled to apply for a reduction of parole ineligibility (i.e., instead of only being eligible for parole after twenty-five years, they can be released after some shorter period).  As stated in this Department of Justice report [link is to .pdf; see page 3 of the report], 81.6% of applicants are granted a reduction in parole eligibility.  At the time of the report, of that 81.6%, 63% had been released (i.e., the reduction in the number of years of parole eligibility lowered the number of years they had to serve below the number of years they had actually served).

You'd think that first-degree murder would entail a pretty harsh set of circumstances.  The typical scenario which many people have in their heads is the circumstances of, say, Paul Bernardo: locked in a cell twenty-three of twenty-four hours a day in maximum security.  As Dan Gardner, an Ottawa Citizen columnist who writes frequently about the justice system argues,

It's simply not true that the criminal justice system is one big marshmallow: In most cases today, serious criminals are seriously punished.

Uh-huh. 

Let's take the case of Kuldip Singh Samra.  Samra was convicted of two counts of first-degree murder, and one count of attempted murder (the third victim was left paralyzed).  Samra then fled the country and had to be extradited back to face Canadian "justice".  So, how does the Toronto Star (not a paper known for taking any kind of hard line on punishing criminals) describe the conditions of Samra's incarceration?

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.

Gosh, that sounds just awful.  Even Samra isn't complaining, describing his time in "prison" as "the most peaceful" time of his life.  I guess, however, that the chess-playing, cookie-baking, gardening life just ain't for Samra - he's applying for early release.  Two murdered, one left paralyzed - and one joke of a justice system.

"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.