A Judge's revealing Comments

[Wilber]

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

What you are advocating is power without accountability, the antithesis of a democratic system. But have it your way if you want, it is their job to keep the system afloat, so why shouldn't they be held accountable for the result?

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?

So even though the judiciary is autonomous it is not responsible for policing the actions of its own members. Thank you for clarifyiing that. As far as the Kelly Ellard trials go, three tries and they still can't get it right. Nuff said.

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.

Only the judiciary has the power to force those checks to be used.

Tell you what, if the judicial system is not going to keep criminals from committing their crimes, we could save a ton of money if we just got those pesky police to stop arresting them.

[DrGreenthumb]

I don't think you would get much argument against mandatory minimums if they were only for serious violent offences. Its mandatory minimums for vice "crimes" that people are against. At least half of Canadians think that pot laws should be liberalized. Our laws should reflect our national social acceptance of this behaviour. If anything the courts should be throwing out more and more cases, and giving out less sentences for pot "crimes". The courts decisions should reflect the public's attitude's to the seriousness of the crime. So it is a two way street, the judges should be giving more time to violent offenders, but should resist mandatory minimums when it comes to drug "crime".

[g_bambino]

However, we now HAVE an American constitution, or rather, an inferior copy of it.

No. What we have is a British style constitution with an American-esque document shoved into it.

[Smallc]

No. What we have is a British style constitution with an American-esque document shoved into it.

And I'm not really sure how it's inferior to the American Constitution.

[g_bambino]

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.

Then you've just concurred with my point that the remedy to the problems you perceieve is more defined sentences laid out in the laws.

[Wilber]

Double post

Edited December 21, 2009 by Wilber

[Wilber]

The courts decisions should reflect the public's attitude's to the seriousness of the crime. So it is a two way street, the judges should be giving more time to violent offenders, but should resist mandatory minimums when it comes to drug "crime".

Now you are maintaining that judges should make social policy which is clearly not their mandate. There are sentencing ranges for all crimes under the law. The sentence given is supposed to reflect the degree to which the particular law was violated, not whether the judge agrees with the law or not. If a particular law or penalty is not acceptable to the public it is up to them to get their representatives to change it, not the judiciary.

[Wilber]

Then you've just concurred with my point that the remedy to the problems you perceieve is more defined sentences laid out in the laws.

It may be the remedy but not the most desireable one. I've already said I am not a big fan of mandatory minimums.

[ToadBrother]

What you are advocating is power without accountability, the antithesis of a democratic system. But have it your way if you want, it is their job to keep the system afloat, so why shouldn't they be held accountable for the result?

Have you got some sort of comprehension problem. If the Crown does not like the verdict or the sentencing, they can appeal. There's no guarantee the appeal will work, but that is accountability, because if a higher court says "You were wrong", the judge has to go at it again. That's what happened in the case I posted, which you oddly ignored, as it pretty much disproves your point. In that case, the trial judge will have to back and resentence the convicted of the appropriate offense.

So even though the judiciary is autonomous it is not responsible for policing the actions of its own members. Thank you for clarifyiing that.

The judiciary has some means to do so, yes.

As far as the Kelly Ellard trials go, three tries and they still can't get it right. Nuff said.

But that seems to go against your logic.

Only the judiciary has the power to force those checks to be used.

Well, the Crown Prosecutors do, and they are technically in the middle; being under the jurisdiction of the Attorney General.

Tell you what, if the judicial system is not going to keep criminals from committing their crimes, we could save a ton of money if we just got those pesky police to stop arresting them.

I think we've reached the point where you're just going to continue to assert things, with apparently no understanding, nor any interest in understanding how things work.

[Wilber]

Have you got some sort of comprehension problem. If the Crown does not like the verdict or the sentencing, they can appeal. There's no guarantee the appeal will work, but that is accountability, because if a higher court says "You were wrong", the judge has to go at it again. That's what happened in the case I posted, which you oddly ignored, as it pretty much disproves your point. In that case, the trial judge will have to back and resentence the convicted of the appropriate offense.

I didn't ignore it, I said it was a good thing and I never maintained that they never do anything right.

The judiciary has some means to do so, yes.

They may have the means but you are telling me that they don't and it is up to council to police their actions not the judiciary itself. Unless someone appeals, they do nothing.

But that seems to go against your logic.

Logic tells me if I can't get it right after three trials there is something seriously wrong with my system. What does logic tell you? If I tried something three times and it didn't work, I would be taking a good look at how I was doing things. If I tried the same thing again, I would be questioning my sanity.

Well, the Crown Prosecutors do, and they are technically in the middle; being under the jurisdiction of the Attorney General.

Again, the judiciary bears no responsibility unless they are forced to take it.

I think we've reached the point where you're just going to continue to assert things, with apparently no understanding, nor any interest in understanding how things work.

I understand how things work. The police keep arresting the same people for the same crimes and the courts keep giving them a slap on the wrist and tell them not to do it again. Which they promptly ignore.

[Argus]

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.

One would presume that the only reason a Crown would lay a lower charge would be an expectation that he would not be able to get a conviction on the higher charge due to technical issues of law.

[Argus]

Have you got some sort of comprehension problem. If the Crown does not like the verdict or the sentencing, they can appeal.

Sometimes they can, sometimes they cannot. Most appeals courts are reluctant to second guess a judge except in matters of law. If a trial judge decides some guy deserves another chance, or deserves a break, appeals courts are rarely going to change his decision unless his written judgement contains some kind of fundamental error in law or procedure.

I certainly don't think you can appeal, for example, because a judge failed to levy a fine and didn't give any written decision for doing so. That's not a matter of law, but of administration. Administrative judges need to start cracking the whip and ordering the judges under them to do their jobs.

[Argus]

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.

Please explain to me how underfunding causes a judge to sentence a rapist to 1 year in prison instead of, say 5 years.

Please explain why, as another example, when you can get 10 years for forgery, judges normally sentence people to under 1 year.

[Jerry J. Fortin]

We need more mandatory minimum sentences. Crimes need punishments that better reflect the injuries to individuals, crimes committed against institutions are another story. The should be a difference.

[Argus]

We need more mandatory minimum sentences. Crimes need punishments that better reflect the injuries to individuals, crimes committed against institutions are another story. The should be a difference.

Depends. First, I don't like mandatory minimums because given the wide variation of people and motivations involved in crimes you're going to wind up legislating injustice in certain cases where a judge has no choice - even though he recognize the injustice - but to put someone in prison. What we need are better judges, or a better way to rank the severity of crimes or the individuals who commit them. For example, I don't believe judges take past criminal records into account nearly enough when sentencing. I'm very much in favour, therefore, of laws which force them to. Ie, first offense, let the judge decide, second offense, mandatory minimum. Third offense, higher mandatory minimum, etc.

As for crimes against institutions, have a look at this from this morning's globe. IMHO, forgery strikes at the heart of the system. If you can't believe in documents then it throws everything into chaos. People who forge documents - or money - ought to be treated very severely but almost never are.

forgery

[Jerry J. Fortin]

Depends. First, I don't like mandatory minimums because given the wide variation of people and motivations involved in crimes you're going to wind up legislating injustice in certain cases where a judge has no choice - even though he recognize the injustice - but to put someone in prison. What we need are better judges, or a better way to rank the severity of crimes or the individuals who commit them. For example, I don't believe judges take past criminal records into account nearly enough when sentencing. I'm very much in favour, therefore, of laws which force them to. Ie, first offense, let the judge decide, second offense, mandatory minimum. Third offense, higher mandatory minimum, etc.

As for crimes against institutions, have a look at this from this morning's globe. IMHO, forgery strikes at the heart of the system. If you can't believe in documents then it throws everything into chaos. People who forge documents - or money - ought to be treated very severely but almost never are.

forgery

If you go with mandatory minimums for violent crimes against individuals you will have taken a step forward. Deal with the crimes against citizens first. I favour permanent sentences for capital crimes, never let them out. Make it isolated while you are at it and call it protective custody to protect other cons if you want, but it must be severe to fit the crime

[Argus]

If you go with mandatory minimums for violent crimes against individuals you will have taken a step forward. Deal with the crimes against citizens first. I favour permanent sentences for capital crimes, never let them out. Make it isolated while you are at it and call it protective custody to protect other cons if you want, but it must be severe to fit the crime

We've been whining about gun violence for a while. My solution, re sentencing, is fairly clearcut.

Anyone caught with an illegal restricted weapon who already has a criminal conviction for a crime of violence gets 1 year minimum in prison - without parole.

On a second offense, caught with a restricted weapon, that jumps to 5 years - again, no parole.

Caught a third time - life in prison.

That's just to start. I would also alter the laws so that anyone who fires at another person would automatically be considered guilty of attempted murder if the person lives, murder if they die. Today, it's virtually impossible to prove attempted murder, and many murderers get off with manslaughter because of the stringent requirements for showing intent. As far as I'm concerned, if you shoot at someone that's intent. That's the way it is in most countries. I would say the same about stabbing someone in the head or torso, or hitting someone in the head with a heavy object.

[M.Dancer]

We've been whining about gun violence for a while. My solution, re sentencing, is fairly clearcut.

Anyone caught with an illegal restricted weapon who already has a criminal conviction for a crime of violence gets 1 year minimum in prison - without parole.

On a second offense, caught with a restricted weapon, that jumps to 5 years - again, no parole.

Caught a third time - life in prison.

I believe amyone caught committing an armed robbery should be given a life sentence. ..no need to wait till they are caught a second time.

[Jerry J. Fortin]

We've been whining about gun violence for a while. My solution, re sentencing, is fairly clearcut.

Anyone caught with an illegal restricted weapon who already has a criminal conviction for a crime of violence gets 1 year minimum in prison - without parole.

On a second offense, caught with a restricted weapon, that jumps to 5 years - again, no parole.

Caught a third time - life in prison.

That's just to start. I would also alter the laws so that anyone who fires at another person would automatically be considered guilty of attempted murder if the person lives, murder if they die. Today, it's virtually impossible to prove attempted murder, and many murderers get off with manslaughter because of the stringent requirements for showing intent. As far as I'm concerned, if you shoot at someone that's intent. That's the way it is in most countries. I would say the same about stabbing someone in the head or torso, or hitting someone in the head with a heavy object.

So you favour three chances before you go away forever. In my mind a crime of violence that does not put an individual away immediately, puts another in harms way. How many must be harmed before we deal with the criminal, what is the point in the system if not to protect citizens. Punishment is what it has devolved to and that gets lighter all the time.

[Wilber]

Depends. First, I don't like mandatory minimums because given the wide variation of people and motivations involved in crimes you're going to wind up legislating injustice in certain cases where a judge has no choice - even though he recognize the injustice - but to put someone in prison. What we need are better judges, or a better way to rank the severity of crimes or the individuals who commit them. For example, I don't believe judges take past criminal records into account nearly enough when sentencing. I'm very much in favour, therefore, of laws which force them to. Ie, first offense, let the judge decide, second offense, mandatory minimum. Third offense, higher mandatory minimum, etc.

Makes sense to me. Much has been made of the appeals process as a self correcting mechanism. While it does serve this function to a degree, it ignores the fact that the court system is in reality a closed shop for lawyers, be they judges, crown or defense council. Many of those same council have aspirations to be judges. I'm sure most of them know when they are banging their heads against a wall and I daresay most of them have a pretty good idea to what extent continually questioning the judgment of judges might damage their personal interests. This is not altogether a bad thing because it serves to reduce the number of nuisance appeals but I have been on this earth too long to believe that internal politics, the effect on their future court cases and career expectations are never a factor in how some cases are handled.

[William Ashley]

A judge David Cole discusses how judges deliberately thrwart the will of parliament and work to get around the law in sentencing criminals.

If there is a way around there ya go, no lawyer would do any different. If the law is ineffective parliment should ammend to correct the error. Case closed. Fact is though a judge CAN strike down a law if it violates a supervices law. The justice system is more powerful than parliament in the role of exchequing - chancellory, unless the administration of justice itself is legislatively changed.

Parliament can change the way the judges are to administer law, but they do not control the law - only the government - via the attorney general has some capacity to allow judges to be quashed short of an appeal to the queen.

National Post

And then there's this - an even more obvious case of a judge substituting his own beliefs in sentencing and beratting the government for having different ones.

That's what judges do. Not everyone is always a winner in an adversarial system. Fact is the justice system and administration of justice, on all levels not just the courts is somewhat malaligned and knotted at times, especially when judges are politically appointed positions, of a mass party rule country that yeilds to only about a 60% segment of the population and more usually 30% or less of the adult population.

Globe and Mail

Whenever anyone talks about how judges ignore law and use their own ideological beliefs in sentencing, certain people rush to defend them as if shocked anyone would question the neutrality of these learned black robes, but there's really no secret that judges despise strict laws of any kind for any crime and will always do their best to minimize sentencing.

Of cours,the result is more and more laws passed with minimum sentencing rules.

How'd you like the judge just to throw out the case, or reduce the case, or do alternate sentencing? There are grounds to do so, especially if you just dismiss the charges.

Personally I think judges should be able to hand down rational opinions, and should constructively aim to improve society not just follow a mechanical order that exasperates and destroys society year after year, draining multi millions of taxpayer dollars for often non damaging occurences, or correctable occurences. I think restitution orders, with victim consulation and public consulation is a far better mechanism than adversarial, who has a better story and rules lawyering novel.

[William Ashley]

thats the problem right there.. that judges are partisan political appointments, rather than fairly and freely chosen by the public. With a safeguard to insure minority voice is not crushed by majority opinion.

[Smallc]

Yes, because judges chosen by the public would be less partisan. An appointment isn't always partisan. An elected figure almost always is.

[William Ashley]

If you have multiple judges atleast it allows multiple perspectives. And if both sides get to pick them like a jury there is far more potential. That is both sides are willing to accept the judge.

Judges should be subject to consent of those people INVOLVED. not all crimes are crimes against the state.

Edited December 23, 2009 by William Ashley

[Smallc]

yeah....