A Judge's revealing Comments

[cybercoma]

This is quite mistaken. For centuries Parliament ruled supreme. It could, with little effort, simply overturn any ruling by any court, including the Supreme Court. That changed when Trudeau brought in a new constitution and the Charter - modelling them after the US constitution. Suddenly we had a third arm of government - unelected - with the ability to overrule parliament and anything parliament did, and to alter laws as it suited them.

Parliament ruled supreme? You're kidding right? The JCPC made short work of sections 91-92 in the BNA. If Parliament ruled supreme, they ought to have just ignored those rulings, don't you think?

[Argus]

That is, of course, completely disingenuous. Not making the same assumptions you automatically jump to does not mean I didn't give anything thought.

Let us examine what you replied to:

According to a recent study of 456 offenders by Fraser Valley University, 46 were identified as super offenders with more than 30 convictions. Average number of convictions 47. Average time between convictions 3.2 months. Number who have violated conditions 100%. Number with convictions for violence 91%. Number who served jail time 80%. Of those. Number who served less than two weeks 88%. Number who served one day 38%. If that isn't pointless tinkering I don't know what is and you can't blame it on foreign concepts.

You immediately stated that this was probably a problem with the laws themselves, and was no indication of a problem with judges. Yet we know that the laws allow for a strong sentence in all cases of violence. That 88% of repeat violent offenders served less than two weeks is a clear indication judges are not applying those severe sentences. Now it's not proof. Perhaps there is some other contributing factors. But you simply denied outright that this was any indication of a problem with judges. That's a decision made without thought.

[cybercoma]

This is nonsense. In one of the cases cited the judge clearly understood what the law was and what the intent of those who framed the law was - on marighuana. He didn't "interpret" the law in a unique way. He simply disagreed with the law and refused to punish the person under the law, even though that violated all jurisprudence. The result was that a prolific drug dealer never went to jail.

Judges interpret the laws based on based judicial decisions and the principles of law and SOCIETY to make the best possible decision in light of the facts. You seem to be hung up on the principles part. If it's a bad decision, it will be overturned by a higher court, that's the way the system works. If all the courts uphold that decision, then face it, the legal and social principles at play do not mesh with yours. Too bad.

[g_bambino]

most laws, especially laws governming violent offenses, have a large range or scale of possible punishments. The problem is that judges out and out refuse to apply the more severe levels of punishment.

Then clearly laws with less leeway would be the answer rather than some bizzarre overhaul of the entire judicial system. Further, where's the proof that all judges refuse to hand out the most severe punnishment available? Did Paul Bernardo receive the slap on the wrist you say every single criminal gets? Allan Legere? Robert Pickton? Or, is it that you think punnishment should always be the most severe available, regardless of the severity of the crime, and you attack judges merely for not holding your views?

[cybercoma]

By the way, I'm not suggesting judges can make whatever decision they want. If the facts of the case meet the conditions of a clearly set legal rule, then the judges are obligated to rule along the lines of the rule. From the sounds of your complaint, it seems as though the judge in this case completely ignored the rule, which is why I say it ought to be overturned by a higher court. Do you have a link to the ruling? I'd like to see what the judges reasoning was.

Nevertheless, where the legal rule is not necessarily clear or there are different interpretations of words, judges necessarily are obligated to consider the weight of legal principles when deciding a case. For example, the rule that says no motor vehicles are allowed in the park after midnight. If someone drives a motorized wheelchair through the park, technically this is a motor vehicle, yet it doesn't meet the principles of the rule.

[g_bambino]

Now it's not proof. Perhaps there is some other contributing factors.

Exactly, and that was my evident point all along. Nowhere did I outright deny that there may be problems with judges from time to time.

[Wilber]

Judges interpret the laws based on based judicial decisions and the principles of law and SOCIETY to make the best possible decision in light of the facts. You seem to be hung up on the principles part. If it's a bad decision, it will be overturned by a higher court, that's the way the system works. If all the courts uphold that decision, then face it, the legal and social principles at play do not mesh with yours. Too bad.

That's the point, the law becomes based on precedents set by people accountable only to their peers. The legal system cannot function as a group of independent thinkers. It stands to reason that any community will develop a sort communal mindset and take a communal approach to sentencing. When that group is only accountable to itself it is free to disregard the will of those they are supposed to serve.

That is the irony. I am not a fan of the concept of mandatory minimum sentences. It would be better if we could avoid them but if judges ignore the public's desire for what they regard as acceptable justice, as well as the will of Parliament with their sentencing practices, we have no other choice but to impose them.

[Wilber]

Then clearly laws with less leeway would be the answer rather than some bizzarre overhaul of the entire judicial system. Further, where's the proof that all judges refuse to hand out the most severe punnishment available? Did Paul Bernardo receive the slap on the wrist you say every single criminal gets? Allan Legere? Robert Pickton? Or, is it that you think punnishment should always be the most severe available, regardless of the severity of the crime, and you attack judges merely for not holding your views?

Doesn't count. There is only one sentence for a murder conviction. Judges have no latitude when it comes to first degree murder and are only allowed to determine parole eligibility on second degree. These convictions are regarded as too severe to allow judges to screw the sentences up. They have however made the burden of proof so difficult that many crimes which any sane person would consider murder are plea bargained down to a lesser charge. The number of murder charges arising from homicides is really quite small.

[Smallc]

Who are you to say that the burden of proof is too difficult? Thank goodness we don't live in a country designed by you. We'd have a great many more of the types of cases being brought to light in Manitoba right now.

[Wilber]

Who are you to say that the burden of proof is too difficult? Thank goodness we don't live in a country designed by you. We'd have a great many more of the types of cases being brought to light in Manitoba right now.

That's a good argument for never putting a person in jail at all because we might be wrong. What's the difference between being wrongfully convicted for murder or manslaughter? You were wrongfully convicted.

[Jerry J. Fortin]

Who are you to say that the burden of proof is too difficult? Thank goodness we don't live in a country designed by you. We'd have a great many more of the types of cases being brought to light in Manitoba right now.

Mandatory minimums are the way to go. They need to be tweaked to reflect a more harsh reality that will see the punishment fit the crime. Violent offenses need a mandatory minimum of life in prison. Crimes with weapons used need to be declared violent offenses. If we change the manner of sentencing to reflect these values then we negate the issue of judges impacting the system by removing them from the process of decision making and instead put them in charge of proceeding and ensuring fairness in trial.

[Bugs]

Not only that, but we have a Charter right to a speedy trial. The only time anyone cashes in on this right are those cases in which the Courts connive to release crooked coppers.

http://www.cbc.ca/canada/toronto/story/2008/01/31/drug-officers.html

See how it works?

[ToadBrother]

We're talking about a new ability of courts to overrule parliament, and to substitute their own biases, their own ideological beliefs for those of parliament.

Well, yes, because without some way to actually support the Constitution when a government legislates in a fashion that violates the Constitution, the Constitution is rendered completely meaningless. Certainly that's how it's functioned in the United States, and our notion since 1982 of how the Supreme Court functions is largely borrowed from that. If your provincial government decided that anyone use the pseudonym "Argus" on the Internet was to be jailed for five years, how would you propose to create a system in which such a law could justifiably be struck down? Or do you think Parliament should have absolute authority without systemic check or balance of any kind? And if you do think there should be checks and balances, be so kind as to explain what those would be if not for a court which can throw out unconstitutional laws?

Edited December 20, 2009 by ToadBrother

[Wilber]

And if you do think there should be checks and balances, be so kind as to explain what those would be if not for a court which can throw out unconstitutional laws?

That is not the issue here. The issue is how do we get judges to apply the laws and penalties that are constitutional if they are inclined not to.

[Wilber]

Not only that, but we have a Charter right to a speedy trial. The only time anyone cashes in on this right are those cases in which the Courts connive to release crooked coppers.

http://www.cbc.ca/canada/toronto/story/2008/01/31/drug-officers.html

See how it works?

It happens more often than you would think and not just for charges against police officers.

[Argus]

Doesn't count. There is only one sentence for a murder conviction. Judges have no latitude when it comes to first degree murder and are only allowed to determine parole eligibility on second degree.

Why do you suppose that is? I was around when the arguments were flying about abolishing the death penalty. And the mandatory minimums were included because, quite simply, the public did not trust judges to impose sufficient penalties on murderers.

[Argus]

Who are you to say that the burden of proof is too difficult? Thank goodness we don't live in a country designed by you. We'd have a great many more of the types of cases being brought to light in Manitoba right now.

When a man takes a hunting knife to a shopping mall, taunts a shopkeeper, stabs him to death, and shouts "I killed you, you son of a bitch! I'm going to watch you die!" most of us would take his intent as self-evident. When the killer is then charged with manslaughter and gets a 3 year sentence, most of us would consider that inadequate.

[Argus]

Well, yes, because without some way to actually support the Constitution when a government legislates in a fashion that violates the Constitution, the Constitution is rendered completely meaningless.

But we're not talking about laws which are in any way unconstitutional. We're talking, for the most part, about sentencing which judges find too harsh and so don't impose. This includes the economic fine that judges are required to levy on convicted criminals so the money can be used to fund victims programs. As stated in the cite the study found in some provinces and territories judges were waiving the fines in 2/3rds of the cases. Because judges were refusing to levy the surcharge, millions of dollars in anticipated revenue to victim-support initiatives were never realized. The legislation required judges waiving the surcharge to provide reasons for the waiver — in 99% of reviewed cases, the judges simply ignored this requirement.

[ToadBrother]

But we're not talking about laws which are in any way unconstitutional. We're talking, for the most part, about sentencing which judges find too harsh and so don't impose. This includes the economic fine that judges are required to levy on convicted criminals so the money can be used to fund victims programs. As stated in the cite the study found in some provinces and territories judges were waiving the fines in 2/3rds of the cases. Because judges were refusing to levy the surcharge, millions of dollars in anticipated revenue to victim-support initiatives were never realized. The legislation required judges waiving the surcharge to provide reasons for the waiver — in 99% of reviewed cases, the judges simply ignored this requirement.

Then most certainly the Crown can appeal, right? I mean, that's what is supposed to happen when a judge screws up. I don't expect judges to always do things right, but there are checks to rulings, after all.

[ToadBrother]

When a man takes a hunting knife to a shopping mall, taunts a shopkeeper, stabs him to death, and shouts "I killed you, you son of a bitch! I'm going to watch you die!" most of us would take his intent as self-evident. When the killer is then charged with manslaughter and gets a 3 year sentence, most of us would consider that inadequate.

Almost always what gets presented to the courts is what the Crown decides. Again, a lot of complaints here have little to do with judges.

[ToadBrother]

That is not the issue here. The issue is how do we get judges to apply the laws and penalties that are constitutional if they are inclined not to.

You get the Crown to appeal the sentence, that's how. If a judge messes it up, and you don't need to tell me they do, our system (unlike the US system) allows the prosecutors to go "WTF?" and appeal. That's exactly what happened here:

http://www.cbc.ca/canada/story/2009/12/18/bird-conviction.html

The problem here is that there aren't enough Crown Prosecutors, there are insufficient resources, there is general pressure from the prison side because of overcrowding issues. Judges, of course, are the face of the judiciary, so they get the blame for a lot of things that have little or nothing to do with them. In short, you're picking an easy target, but not really dealing with the true systemic problems.

[Wilber]

You get the Crown to appeal the sentence, that's how. If a judge messes it up, and you don't need to tell me they do, our system (unlike the US system) allows the prosecutors to go "WTF?" and appeal. That's exactly what happened here:

http://www.cbc.ca/canada/story/2009/12/18/bird-conviction.html

The problem here is that there aren't enough Crown Prosecutors, there are insufficient resources, there is general pressure from the prison side because of overcrowding issues. Judges, of course, are the face of the judiciary, so they get the blame for a lot of things that have little or nothing to do with them. In short, you're picking an easy target, but not really dealing with the true systemic problems.

That's good, I'm not maintaining they never do anything right. Far fr=om it.

The rest is a cop out. Look, if you make the decisions, you are responsible for them. If there is a shortage of crown prosecutors, that is governments responsibility, not the judiciaries. If there is a shortage of prison spaces, that is governments responsibility, not the judiciaries. All I am asking them to do is focus on their own job and responsibilities. If they do, government will have no choice but to live up to its responsibilities. If they keep letting legislators get off the hook by turning people loose who shouldn't be, it will never happen.

If a group that is accountable to no one but itself doesn't have the stones to do it, we're screwed.

[ToadBrother]

That's good, I'm not maintaining they never do anything right. Far fr=om it.

The rest is a cop out. Look, if you make the decisions, you are responsible for them. If there is a shortage of crown prosecutors, that is governments responsibility, not the judiciaries. If there is a shortage of prison spaces, that is governments responsibility, not the judiciaries.

And the judiciary keeps saying it over and over and over again. At every level it's being underfunded. Parliament creates the problems, then blames the people that are trying to keep the system afloat despite the problems for what's going on.

All I am asking them to do is focus on their own job and responsibilities. If they do, government will have no choice but to live up to its responsibilities. If they keep letting legislators get off the hook by turning people loose who shouldn't be, it will never happen.

We're never going to get rid of the odd bad judge, or even good judges that make bad rulings. But if the rest of the system (Crown Prosecutors, prisons, probation, etc.) had sufficient resources, then we might be more justified in looking for whose to blame.

If a group that is accountable to no one but itself doesn't have the stones to do it, we're screwed.

I just showed you that that group's decisions can be appealed. It just happened, and the Supreme Court ruled the trial judge made a decision that could not be justified. That's how the system worked, and maybe more of these screwy decisions would be turned over and the judges who made the bad decisions forced to go back, things might change. But again, you're blaming the judges for an entire system's flaws, and that's just unfair. But going further and demanding the end to judicial independence, well, that's a recipe for disaster.

[Wilber]

And the judiciary keeps saying it over and over and over again. At every level it's being underfunded. Parliament creates the problems, then blames the people that are trying to keep the system afloat despite the problems for what's going on.

It is not their job to keep the system afloat. You can't demand complete autonomy in your workplace and then blame the results of your decisions on others.

We're never going to get rid of the odd bad judge,

Why not?

I just showed you that that group's decisions can be appealed. It just happened, and the Supreme Court ruled the trial judge made a decision that could not be justified. That's how the system worked, and maybe more of these screwy decisions would be turned over and the judges who made the bad decisions forced to go back, things might change.

Then why don't they? The only people with the power to do that are judges.

But again, you're blaming the judges for an entire system's flaws, and that's just unfair. But going further and demanding the end to judicial independence, well, that's a recipe for disaster.

I'm blaming judges for their flaws, not the systems. No one is allowed to correct them but their own group. Why shouldn't I hold them accountable?

[ToadBrother]

It is not their job to keep the system afloat. You can't demand complete autonomy in your workplace and then blame the results of your decisions on others.

It is their job to keep the system afloat. The judiciary is a branch of the government. Come on, this is Political Theory 101.

Then why don't they? The only people with the power to do that are judges.

The Crown appeals, not the bloody judges. Do you know anything about how our justice system works? It's hard to take your complaints seriously when it seems like you never even took a grade 9 social studies class.

Look, if a judge finds someone guilty of a lesser charge, or feels their culpability less and the sentence is lighter, or they do not carry out their feel duties as required of them, and the Crown disagrees with that, then the Crown can appeal that decision. The fact is that the Crown often doesn't for a number of reasons. Major reasons are that it is unlikely an appeal would not be successful (no error, or at least serious error in law) or resources could be better allocated to other cases, because an appeal requires people and resources. If there were Crown Prosecutors and support staff, I'd wager you would see a good deal more appeals of decisions, but when you've got finite resources, do you blow them on something like the Kelly Ellard trials (which I consider to have become ridiculous wastes of judicial resources), or do you count your losses and move on?

Like I said, the system has checks in place, but because Ottawa and the Provinces are starving the system, those checks don't get used often enough.

Edited December 21, 2009 by ToadBrother