MAKE CRIMINAL LAW PROVINCIAL, BOOK SUGGESTS

Provinces Should Also Set Guidelines, For Sentences, Retired Judge Says

VICTORIA -- Canada's Constitution should be changed to allow
provinces to enact their own criminal laws and to establish
sentencing guidelines, a recently retired -- and always outspoken --
B.C. Supreme Court judge says.

John Bouck, who retired last May after a 49-year legal career and 32
years on the bench, says in a new book that it is an unworkable
situation to have the federal government making criminal laws that
are administered by provincial civil servants who are not answerable
to Parliament. He said no other common-law country has a criminal
justice system like this.

"Criminal law is recognized as being local in nature," Mr. Bouck says
in his book, Exploding the Myths - An Insider's Look at Canada's
Justice System, published by Juriliber of Edmonton. "Criminal law
should be enacted by local legislators to meet the needs of the local
population, not by national legislators."

One example he offers as a flaw in Canada's British-based,
19th-century criminal justice system is probation.

Mr. Bouck says that while members of Parliament insist on probation
as a sentencing tool, they cannot possibly know the level or degree
of supervision by provincial probation officers, who do not report to
federal legislators.

Those who criticize judges over what they call lenient sentences
should be aware that a Criminal Code sentencing provision requires
them to consider jail as a last resort in all cases, he writes.

He points out that trial judges in every province are duty bound to
follow guidelines set by their province's courts of appeal, but noted
that those rules are very rough. Because of what he calls the
imprecise and conflicting wording of the Criminal Code, each
provincial appellate court tends to interpret its sentencing
provisions differently.

Another issue is that prosecutors seldom cross-appeal when an
offender appeals a sentence, he says, meaning there is little
downside for offenders if they appeal. "These results send a message
to British Columbia trial judges -- sentence on the side of leniency."

Mr. Bouck, 75, observes that the country's highest court, the Supreme
Court of Canada, restricts itself to appeals on the legal principles
governing sentencing and rarely interferes with specific sentences
set by the appellate courts.

He calls for a sentencing guidelines system using a grid similar to
those in place in 22 U.S. states.

"In 1987, the Canadian Sentencing Commission recommended a system of
Sentencing Guidelines for Canada. They are different from the
American state systems in many ways, but they are a start."

He says the Canadian government's failure to adopt a guideline system
proves how difficult it is to achieve any substantial reforms in
federal criminal law.

Mr. Bouck recommends a constitutional change that would give each
province the right to enact its own Criminal Code, including
sentencing guidelines designed to suit local circumstances. If trial
judges imposed sentences within the grid, there would be no right to appeal.

Compared with Canada's criminal law, he says, most U.S. states'
criminal laws have far more efficient procedural and evidentiary
rules for processing criminal cases through their courts.

He says he understands Canadians' current animosity toward things
American, but added, "by ignoring reforms in other countries we are
only hurting ourselves."

His book proposes decentralizing judicial power by giving the final
say on appeals to provincial appellate courts rather than the Supreme
Court of Canada. Canada's highest court would then concentrate on
interpreting the Constitution and the meaning of federal statutes.

The judge made headlines in 1987 when he ruled in a case of two
Abbotsford teachers suspended by the school district over a semi-nude
photograph in a magazine, saying teachers lead by example and must be
held to a higher standard than most.

In 2001, he criticized the former NDP government in a stinging
indictment of the province's jury-empanelling fee system. And he has
advocated the use of television in courtrooms, a measure that has
been only fitfully embraced.

Mr. Bouck, who calls himself a reformist, says he wants much more
change, far more quickly. "Working in a backwards system is
frustrating. The system was so antiquated," he said in an interview.