CKNW Editorial
for October 19, 1999

I think the debate on the Criminal Justice system ought to continue but the debate ought to cover all elements of it, not just the easy targets selected by the Reform Party, namely the Judges. Quite apart from the question of fairness – a notion that bothers the Reform party not a bit – it is senseless to simply take one part of the system and assume that the problems are all caused by it.

First, though, we should decide if there is a problem. And in doing that, we must surely acknowledge that there has always been an ongoing problem with the justice system since we first started giving people taken on by the state some rights. We, as a democratic society, have decided that people charged by the Crown have certain rights. They have the right to remain silent … to have counsel … to a fair investigation and presentation by counsel ... and to a fair hearing. In doing all this we have this added ingredient – all people charged with crimes are and remain innocent until the contrary is proved. We have decided that for a person to be found guilty, every substantive aspect of the charge must be proved beyond a reasonable doubt.

This poses a heavy burden on the crown and surely results in some of the horror stories that command our attention. Any fair discussion of the Justice system, before it goes into a secondary stage, must decide whether or not we will retain this presumption of innocence and the difficulties it poses. Will we, in short, sacrifice the cornerstone of our freedom so that there will be fewer headline grabbing cases?

Next, we must look at the laws themselves recognizing that the court is bound by them. The Criminal Code of Canada is very strict in the minimums and maximum sentences it permits. If we listen to the vote seeking rabble rousers, any sentence not to their liking is the fault of the soft-headed person on the bench. But as rational people we must know that’s not true. All the judge can decide, after guilt has been determined, is what the sentence should be within a range imposed by Parliament. Moreover- and this is always overlooked by politicians on the make - Parliament … the place they work … has given the courts strong guidelines on sentencing which make jail the second best option in most cases.

Then we might consider the ethics of both the crown and defence counsel. It’s very easy for policemen to blame all their woes on tricky lawyers and mentally lazy judges but the public of Canada has seen the three Ms, Marshall, Morin and Milgaard and know that it the police can do this in major cases they can do it in other less serious ones. If there is sharp practice being indulged in by defence counsel, that too should be investigated and if discovered, dealt with. I suspect that you will find that the vast majority of policemen do honest investigations and give honest evidence and that the vast majority of defence counsel behave honestly if on occasion, with excessive zeal.

Then we must examine what is appropriate punishment for various crimes. And here we all have ideas and lots of anecdotal evidence. But what are the principles of sentencing – what are the priorities?

Undoubtedly, protection of the public comes first but ever since they stopped publicly hanging thieves, which executions were a pickpockets dream come true, we have decided that other elements come into play. There is the question of deterrence and here I part company I’m sure with many of you. Just as a colleague being publicly hanged didn’t deter the pickpocket I don’t think that punishment itself acts as much of a deterrent.

Rehabilitation is important and it has been demonstrated over and over again that we do not have the facilities to handle those we now imprison much less those that the Reform Party would throw in jail. Overlooked in all this is that prisoners are eventually released. The serious question we must ask ourselves is whether or not a long, or at least longer prison sentence will help reform the criminal. Or will it just make us feel better?

Lastly, we must ask ourselves if we want to take from the judge the right, indeed duty, to do mercy as part of doing justice. Are we to go back to the 60s and 70s when possession of marijuana was an automatic six months in jail? Are we to reject the creativity afforded by community service and electronic surveillance? Are we to removed all discretion from the trial judge and just run people through the system with the consistency of stamping out bottle caps … there’s the crime, here’s the time next case please?

If we are to start jailing more people, have we the political will as voters to spend the many millions of dollars it will take to build and man these institutions?

Finally, I think we have to look introspectively at our own reactions. Are we reacting to an entire system because of what we’re told in the media? Are we taking the horror stories and extrapolating them into general principles? I would argue that for all the screaming to the contrary, the parole system and early conditional release has worked very well and has got many people back into the community as useful citizens. But if that statement has to meet the test provided by every case, however rare, that goes wrong clearly it fails for the unfairness that test implies.

There have been bad decisions made by all. Although they don’t get as much publicity, there are cases dropped that should have been prosecuted and would have had the police done a better job. There are acquittals obtained by shifty defence tactics. Some cases have been blown by the judge either as to the merits or the sentence, or both. But those matters can be remedied without throwing the entire system onto the ash heap.

We have, and this is the proudest thing any country can boast, an independent judiciary – yet vote seeking politicians would end that. We have a justice system which, in its day to day administration of justice does us proud yet we would destroy it by taking away its independence. We have thousands of cases decided properly and without incident every day yet for the occasional bad one – if we believe all we hear in the media – we would condemn the entire system.

Let us indeed examine the judicial system thoroughly – if needs be, let’s have a Royal Commission headed by a non lawyer. The late Jack Webster would have made an ideal commissioner.

But let us not, in the meantime, act like braying donkeys and snap up the carrots thrown us by those who would exploit the problems in the justice system, real or imagined, for their own narrow purposes.