THE LAW'S MESSENGERS

A Supreme Court Judge Explains What's Wrong With The System Of
Sentencing Criminals In Canada, And What's Needed To Fix It

Canada's criminal law sentencing system attracts criticism. I will try
to explain why, and also suggest what changes could be made to meet
the public's expectations.

Let's start with the court system. Canada has three levels of courts
- -- the Supreme Court of Canada, the provincial and territorial
appellate courts and the provincial and territorial trial courts.

The nine Supreme Court of Canada justices sit exclusively in Ottawa.
They hear criminal and civil appeals from the appellate courts. They
seldom hear sentence appeals. Instead, each of the 13 appellate courts
decides almost all sentence appeals from their respective trial court
judges.

Our B.C. appellate court has about 21 judges, mostly sitting in panels
of three in Vancouver. Appellate court judges and Supreme Court of
Canada judges rarely see and hear witnesses testify. They decide
conviction and sentence appeals based on the written record of the
trial proceedings.

In B.C., there are more than 100 provincial court trial judges and
about 100 superior court trial judges. Provincial court trial judges
try more than 95 per cent of criminal cases in B.C. without a jury.
Superior court trial judges try the remaining criminal cases, mostly
with a jury.

The Supreme Court of Canada and the appellate courts interpret
Parliament's sentencing laws. Trial court judges must follow their
interpretations. National Criminal Code sentencing laws amply support
our appellate court's interpretation of requiring leniency in sentencing.

The B.C. Court of Appeal often changes a trial judge's sentence. More
than ninety-five percent of the time, it reduces the sentence. Rarely
does it increase a sentence. The message sent to trial judges is to
sentence leniently.

SENTENCING SYSTEMS

There are three well-known sentencing systems -- discretionary,
comparative and guideline.

Under the discretionary system, a single trial judge has the
discretion to sentence any offender from the minimum, such as a
suspended sentence and probation, to the maximum, such as 10 years.
There is no appeal from those decisions.

Canada's sentencing system attempts to produce more certainty in
sentencing by taking the comparative approach. It requires judges to
fix sentences similar to those imposed on similar offenders for
similar offences.

OUR SYSTEM AND ITS PROBLEMS

Trial judges know only the facts that proved the guilt of the offender
at the trial. If there is a plea of guilty without a trial, typically
the prosecutor and defence counsel orally agree to the facts of the
crime. Prosecutors then just "file" the offender's criminal record.

Offenders seldom testify under oath and expose themselves to
cross-examination. Instead, the law allows defence lawyers to give
judges unsworn statements about the offender's personal history and
future prospects as told by offenders to their lawyers. For instance,
defence lawyers may remark that the offender has a job waiting if the
judge does not impose a jail sentence. They may say that the offender
has quit taking drugs. They may also state that the offender's conduct
is a product of family sexual abuse, etc. Offenders seldom instruct
their lawyers to reveal bad things about themselves.

Trial judges cannot tell whether this self-promotional information is
true. Trial court and appellate court judges impose sentences relying
in part on untested information.

Trial judges may order pre-sentence reports from a probation officer.
The quality of these reports depends upon the time the officer has to
make the necessary inquiries. Frequently, the reports just contain
assertions similar to those made by defence lawyers, so judges seldom
ask for them.

The public regularly criticizes trial judges for their alleged failure
to take into account parole rules allowing offenders an early release.
But appellate courts tell trial judges they cannot consider parole
when fixing the length of any sentence.

When selecting a sentencing number, trial judges usually depend upon
the unreliable information coming from the sentencing hearing and
compare that to previous decisions found in the equally unreliable
sentencing database. At the same time, they must apply the law's
contradictory sentencing principles while considering the competing
interests of the offender, the prosecutor, the victim, the public and
the appellate court. After going through this exercise of mental
gymnastics, a figure ultimately pops out. Often it pleases no one.

Trial judges did not invent our dysfunctional sentencing system. Nor
were they ever consulted. They are just the law's messengers.

LEARNING FROM OTHERS

By 1995, 22 American states had or were developing sentencing
guideline systems. Washington and Oregon are two guideline states.
U.S. federal criminal law also has a guideline system. Because of its
rigidity, it seems unpopular with many American federal court trial
judges and lawyers. State guideline systems give state court judges
greater sentencing discretion.

Under the state systems, legislators establish Sentencing Commissions
that set the guidelines. These guidelines prescribe a presumptive
sentencing range for every crime: Say, 21 to 27 months for the crime
of possessing cocaine where the statutory maximum is 10 years. A grid
then enlarges or reduces the range after applying such things as the
offender's criminal record, the offender's attitude, etc. If a judge
sentences within the range, there is no right of appeal.

Judges may depart from the standard range and impose an exceptional
sentence above or below the range where aggravating or mitigating
factors are present. Offenders can appeal an upward exceptional
sentence. Prosecutors can appeal a downward one.

No sentencing system is perfect. Nevertheless, guideline systems seem
to produce greater consistency and certainty in sentencing than
Canada's comparative system. They are also more responsive to the
public because accessible Sentencing Commissions, rather than jusges,
fix sentencing ranges.

The apparent thinking behind our comparative system is to let the
punishment fit the criminal. The guideline system tends to let the
punishment fit the crime.

Few offenders benefit from prison. Jail mostly protects the public
from offenders while they serve their time. Probation and the like
give offenders more opportunity to re-offend because they are not in
jail. Neither jail nor non-jail sentences seem to achieve better
results in rehabilitating offenders. Non-jail sentences are just cheaper.

Our 1867 Constitution grants our federal Parliament the exclusive
right to enact Canada's criminal laws. It then allows the federal
government to off-load onto the provinces the cost of administering
and enforcing those laws. This arrangement prevents Canada from ever
having a responsive and efficient criminal law system.

Australia, the U.S. and Canada have similar geographic features and
the same common law traditions. Australian and American constitutions
allow their states (provinces) to enact and administer their general
criminal laws.

SENTENCING REFORM

The national constitutions of Australia and the U.S. follow two
common-sense principles.

First, to make the law responsive to the public in large geographic
countries, the closer legislators live to their electorate's
distinctive problems, the better the legislation.

Second, to make the law efficient, legislatures that enact the laws
should also be responsible for the cost of administering them.

Canada's Constitution follows neither of these principles in the field
of criminal law. It, however, allows the provinces to enact and
administer their own civil laws.

Those differ slightly from province to province to suit the particular
needs of their own citizens. Why should it not be the same for our
criminal laws?

Judges cannot change our Constitution or our sentencing system. Only
the voters can.