Reasonable Doubt: Criminal justice issues are never as black and white as they seem
Thank you for all the comments provided in response to our first column. As the focus on the Stanley Cup riot now turns to what the criminal justice system will do with those charged, I would like to use this entry to further discuss the topic of sentencing. Needless to say, this is an area of the criminal law that often garners a great deal of attention in the media.
One of the main complaints regarding sentencing deals with the popular opinion that our criminal justice system is too soft on crime. A recurring theme in news reports is that the system cares too much about offenders and cares too little about victims. What the media fails to acknowledge is the reality that issues are never as black and white as they seem. There are many different elements that lawyers and judges must keep in mind during a sentencing hearing.
First and foremost, an accused is a person with a family, a background, and a unique set of personal circumstances that inform what they do and form a part of the offence itself. There are often a myriad of reasons why someone commits a criminal offence and it is not as simple as saying that they’re a bad person. It is rarely ever a battle between good and evil in a courtroom.
Judges are bound by a number of considerations when they are sentencing an accused. The starting point is the offence itself—is there a minimum or mandatory sentence prescribed in the Criminal Code of Canada? Their decisions must be guided by the principles of sentencing in order to meet one or more of the following objectives: denunciation, general and specific deterrence, rehabilitation, reparation, and/or the promotion of a sense of responsibility in the offender. Judges must also consider what the appropriate range of sentence is, meaning they must ask what similar offenders have received for similar offences and the answer is found in the case law. Because our judges are not elected, they are not subject to the whims of the general public and I, for one, am grateful for that. When a person is facing criminal prosecution, they want a neutral arbiter sitting on the bench hearing their case.
The few sensational cases that make their way into media coverage are used to support unworkable and often unsuccessful “get tough on crime” stances. Of course when one is convicted of a truly heinous crime, their punishment should be proportional. However, the majority of cases that make their way through our courthouses range radically in terms of severity and they do not deserve carte blanche the same heavy-handed responses that are demanded in response to the sensational case.
Our last column generated a bit of controversy with the stated opinion that punishment will not prevent another riot from happening. Our intention was not to disparage the imposition of punishment after an individual has been convicted of a criminal offence. Nor was it our message that punishment is futile. Our criminal justice system exists to hold those who are found guilty of crimes accountable. The point is that often times the fear of punishment will not stop an individual from committing a crime, especially if it’s a crime of need, of passion, or of alcohol-fuelled stupidity.
A lot of people are now wondering what is going to happen to those charged post-riot. Many are calling upon the judiciary to hand down harsh sentences to send a strong message that this behaviour will not be tolerated. Whether or not that happens will depend a lot on what I’ve outlined above as well as the circumstances of each individual accused.
The main message we wanted to get across in today’s column is that nothing in life is simple and most definitely not in sentencing. Not every crime has a victim but every crime has a human being standing in the shoes of the accused.
Reasonable Doubt appears on Straight.com on Fridays. The column’s writers, Laurel Dietz and Nancy Seto, are criminal defence lawyers at Cobb St. Pierre Lewis. You can send your questions for the column to them at firstname.lastname@example.org.
A word of caution: Don’t take this column as personal legal advice, because it’s not. It is intended for general information and entertainment purposes only.
Jul 1, 2011 at 5:21pm
A large percentage of people who end up in jail have been victims themselves.
Here is a beautiful documentary about an experiment to reform one of the toughest jails in the world.
glen p robbins
Jul 1, 2011 at 10:34pm
I understand that the justice system is adversarial - prosecutor vs lawyer. It has to be that way. However, the public pays through the nose for public servants -- judges, lawyers, police -- and at a minimum they expect public safety. Most don't use the courts - if they are sick they want the health care system - on demand - if they are in danger from other people - they want the police. The public wants law and order - and the system must deliver law and order - nor excuses - no grey area- get the job done.
If the perception is that the courts are too soft - its because they are too soft. Canadians believe in second chances - when people make a mistake - the public has empathy for those who commit crimes who are drug addicted - but repeat offenders - the 4% rotten - need to do time - when they commit a crime - and that's black and white.
Jul 2, 2011 at 1:52am
What those "get tough on crime" proponents forget is that the vast majority of offenders will eventually serve out their time and be returned to the community. With that in mind, do you really think it's such a great idea to treat offenders like animals? Taking away all privileges, or access to tv, books, etc etc. benefits no one, but the "justice hard liners" like to point to those small rewards which can be earned as a failing or softness of our justice system. Lock someone up for 10 years with no access to information about the world and see what you end up with at the end. Is that who you want back on the street? Because like it or not, that's where all but a few of the people in prison end up.
I am not saying that prison should be "easy" or that time in prison shouldn't be a punishment. I am simply pointing out that these people in the justice system, even if given the maximum sentence for their crime are going to at some time in the future be released and will be our neighbours, co-workers, employees, etc etc. And it is in everyone best interest to remember that when the talk of "getting tough" on crime comes up.
To glen p robbins - to say that there is no grey area as far as the public's demand that the system get the job done regarding law and order is ridiculous. If you were to ask 20 members of the general public what their thoughts were on any number of justice related issues you would likely have 20 differing opinions. Very little outside of a zebra sanctuary is ever black and white.
glen p robbins
Jul 2, 2011 at 3:20pm
Coast Guarder - respectfully, you need to learn to read. "and the system must deliver law and order - nor (sic) excuses - no grey area." You have imposed a different criteria in your criticism of "any number of justice related issues." Justice related issues could venture off into tort, contract and other. The issue at hand is law and order with the overarching theme -the Vancouver Stanley Cup riots and public safety.
You must be a lawyer - to so easily employ this shovel and shift.
Jul 2, 2011 at 9:12pm
glenn p - my use of the phrase "justice related issues" was intentionally vague. I'm using it I was mirroring your use of the similarly vague "law and order". Pot meet kettle. Let me restate my point using your specific example because it is just as true whether referring to a general concept as it is to specific incident.
Nothing in the criminal justice system is as black and white as you say it should be. And while the vast majority of people would agree that the Vancouver Riot Redux was a terrible thing and the behavior exhibited by participants outside of our society's accepted norms, very few people agree on what should be done about it or to those who participated. Just look at any of the articles on straight.com about the riot and its aftermath. Each of the hundreds of comments present differing opinions about what would be a just response or punishment. And that Mr. robbins is why your black and white view if how the criminal justice system should act in this case is overly simplistic and ultimately unworkable.
I'd like to add that "law and order" are not always desirable or representative of what is just and right. Would you paint the revolutionaries who have risked their lives to overthrow the forces of "law and order" in Tunisia and Egypt with the same brush as the rioters. In your simple black and white world both are guilty of civil disobedience and a danger to public safety and therefore the law should "get the job done" equally in both situations. What about Ghandi? Big into civil disobedience albeit of a non-violent variety, but still disruptive to civic life. On the flip side the Third Reich was chock full of law and order being used by some of the most despicable examples of humanity ever to walk the Earth to promote and further their own twisted agendas. So spare me the get tough on crime, it's all black and white BS. Nothing about these rioters, their actions or the criminal justice systems response is as simple as you lime to make it out to be. Some say throw he book at em and some think thus should work off their debt. Others have requested we forgive and some want to start lynchings immediately. So how exactly does that fit your idea of a homogenous public demanding the same thing?
And finally while I am not a lawyer I have slept with one, so maybe I caught a case of legalese from her.
glen p robbins
Jul 3, 2011 at 9:18am
All right Coast Guarder - of course your point is made well - nothing is black and white - it is important on Law and Order in this context (and I expect the variables of degrees as folks go through the system - will be conspicuous as hell) -- I wanted to hammer down on Law and Order - relative to the riot - with a big view to The Constitution - Peace, Order and Good Government - and as you have ably pointed out - black and white will ultimately be untenable - it is important in my view to not let the grey have it in this context with the same (more whimsical) approach as the article defines.
Lovely - platform for mutual understanding at the end of your piece.