Ontario court rules mandatory minimum sentence unconstitutional in gun

[cybercoma]

That's what initiated the need for minimum maximum sentencing. Judges were all over the place on sentencing. Judges were taking liberties with the laws. Judges were rewriting laws as they went.

Judges are notorious for applying their own bias and opinion when they should be sticking to the law. The judges made the mess and THEIR chickens are now coming home to roost and they don't like to be told WHAT THEY HAVE TO DO<

Show me any two cases at all that have nearly identical circumstances and wildly varying sentencing and I'll humour your claim.

[Argus]

And I've told you you're wrong. If they're going to interpret the charter in a certain why, they have o explain why, backed up by precedent or written material.

Like any complex document, the Charter can be 'interpreted' in many different ways, depending on the mindset of whoever is doing the interpreting. That's why in every case that makes it to the Supreme Court there are sound legal arguments on both sides.

If the Supreme Court decides tomorrow that it's acceptable to murder anyone with red hair, just who do you think is going to tell them they're wrong? There is no mechanism for disagreeing with their ruling. Whatever they say is legal, is legal. Whatever they say is illegal, is not It's that basic. If they say the Charter makes it cruel and unusual punishment for the government to put anyone in prison for any reason, then that becomes "Constitutional law". Nobody gets to tell them their reasoning is unsound or that they're wrong.

[Smallc]

If the Supreme Court decides tomorrow that it's acceptable to murder anyone with red hair, just who do you think is going to tell them they're wrong?

Even though this is a straw man, I'll indulge you. Parliament. If necessary, all of Canada's parliaments.

[cybercoma]

If the Supreme Court decides tomorrow that it's acceptable to murder anyone with red hair, just who do you think is going to tell them they're wrong?

Even if it were possible for a judge to make this decision, and it's not, on what planet would 5 supreme court justices all decide this way?

[Guest Peeves]

I am old enough and well read enough to know of judges bias in sentencing, sentencing even as to color or type of crimes they personally abhor perhaps. There is no need to cite individual crimes for support, since the problem is accepted historically as a wide spread condition in need of addressing.

Principles and Purposes of Sentencing

The Criminal Code of Canada was amended in 1996 to include a set of principles intended to guide judges in handing down fair sentences in order to punish an offender adequately, but also fairly. These amendments came following years of complaints about the sentences offenders were receiving, as many felt they were very inconsistent and simply a reflection of the biases of individual judges.

Section 718 of the Criminal Code now states that the fundamental purposes and principles of sentencing are: 1) that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender and 2) that all reasonable available sanctions other than incarceration must be first considered, especially in the case of aboriginal people. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions that have one or more of the following objectives:

Denouncing unlawful conduct.

Deterring offenders and the public from committing crimes.

Separating offenders (by incapacitation) when necessary from the rest of society.

Assisting the rehabilitation of offenders.

Providing reparations for harm done to victims or the rest of the community.

Promoting a sense of responsibility in offenders and acknowledging the harm they caused the victims and community.

Judges are free to choose which purposes they will apply, however, and some experts argue that sentences are still very inconsistent. Some types of cases require that particular objectives be given primary consideration. For example, section 718.01 states that when a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. Each purpose of sentencing is discussed in detail below.

Denunciation

http://www.victimsofviolence.on.ca/rev2/index.php?option=com_content&task=view&id=361&Itemid=51

Similarly problem is wide spread and reflected in judges bias throughout North America or where ever judges have wide discretion. Scilicet:

In 1957, the average sentence for auto theft in the federal courts of eastern Oklahoma was thirty-six months, while in New Hampshire the average commitment for the same crime was less than a year. It is difficult to discern why the forging of a check should be twice as serious in the middle district of North Carolina as in the eastern district of that same state, but this is just what a breakdown of the average sentences for that year would seem to indicate. Last year, the average prison sentence meted out in the federal courts ranged from nine months in Vermont to fifty-eight months in southern Iowa. Of course, examination of the facts in the individual cases may reveal reasons which justify the differences. But, on the surface, the disparity in different sentences for the same offense seems unfair.

Discuss this article in the Community & Society forum of Post & Riposte.

Return to Flashback: Who Deserves to Die?

The fact that this problem is neither new nor limited to one system of courts is borne out by a study made several years ago of the sentences imposed in more than 7000 criminal cases by six judges sitting in a state court. One judge imposed prison terms in 57.7 per cent of his cases. Another judge committed only 34 per cent of the prisoners before him. One judge granted probation in 32.4 per cent of his cases; another in only 19.5 per cent.

http://www.theatlantic.com/past/docs/unbound/flashbks/death/kaufman.htm

[cybercoma]

Really? Examples from the US where there is different criminal law from state to state and a Canadian article that doesn't prove, but re-iterates your argument? Go back to the drawing board.

[Argus]

Even though this is a straw man, I'll indulge you. Parliament. If necessary, all of Canada's parliaments.

In other words, amend the constitution. But again, the Supreme court can interpret ANY constitution any old way they want to. It's just opinion, after all, and only theirs counts.

[Smallc]

In other words, amend the constitution. But again, the Supreme court can interpret ANY constitution any old way they want to. It's just opinion, after all, and only theirs counts.

I'm pretty sure that you don't understand what you're talking about.

[bush_cheney2004]

Really? Examples from the US....

This never stopped you from using "examples from the US". Carry on.....

[Argus]

Even if it were possible for a judge to make this decision, and it's not, on what planet would 5 supreme court justices all decide this way?

That would be the planet where all supreme court justices are appointed by the same people...

As an example, Paul Martin, during the runup to consulting the SC on gay marriages, appointed two supreme court judges whose only obvious qualification for the jobs were that both were known to be strong supporters of gay rights. That's almost half your majority right there. Suppose Harper had appointed judges known to be strong opponents of gay rights. He's appointed three now, hasn't he? Pretty soon you could be assured the Supreme Court would no longer see any issue with the marriage act discriminating against gays and lesbians.

[Smallc]

Actually, again, that just proves you don't know what you're talking about. The opinions have to have a justification. The justifications are usually long, and well explained.

[Guest Peeves]

Really? Examples from the US where there is different criminal law from state to state and a Canadian article that doesn't prove, but re-iterates your argument? Go back to the drawing board.

Nothing would prove anything to one in denial. That's ample evidence in support of my position and claim.

[Smallc]

Nothing would prove anything to one in denial. That's ample evidence in support of my position and claim.

Inconsistent sentencing would be very difficult to achieve within one particular common-law system. Consistency brought about by precedent is one of the major tenants of such a system.

[guyser]

Nothing would prove anything to one in denial. That's ample evidence in support of my position and claim.

Actually no it does not.

The better point ot make is that the Judges you have in your post, the American Judges , are elected.

Perhaps data collected was just before election time ?

Maybe the judge is some of these areas is playing to the electorate.

[Guest Derek L]

I shouldn't humour your fabricated examples. The answer is it depends. The circumstances of the case are what ought to determine the sentence. Someone can do the same thing, ie, have a loaded gun improperly stored in their home, and the circumstances of each situation can vary dramatically. The only point that I'm making is that mandatory minimums are a one-size-fits-all measure, which does not and cannot take into account the facts particular to each incident. The only way that can be done is through a judge, who then uses a combination his/her reasoning, past precedent, and the legal code (including the Charter) to render a decision. Since I'm not a judge and I don't have all of the information particular to your hypothesized case, there's no reason for me to presume what a judge would do, nor would it even be possible.

I can make assumptions, which are pointless, but here they are anyway. My assumption would be that the cops probably wouldn't kick down your door nor charge you, if you haven't had any prior contact with them. In all likelihood, if they did charge you, the prosecutor would probably drop the case and just tell you to keep your guns locked up properly in the future. If it went further than that, you would probably get a suspended sentence and have your firearms license revoked for a year or so. All of that is speculative. Who knows really.

Having said all of that, my point remains that it ought to be up to a judge to hear the facts of each particular incident and render a decision thusly. Parliament can't possibly foresee ever circumstance. I would much rather know that everyone is going to get a fair hearing and that the sentencing is going to be based on what actually happened, not some one-size-fits-all predetermined incarceration that a bunch of politicians in Ottawa created to pander to their base.

Well I very much how hope your assumption is correct, since this case and the sentence in particular, will certainly be referenced with all future, “minor”, firearms infractions.

[cybercoma]

Well I very much how hope your assumption is correct, since this case and the sentence in particular, will certainly be referenced with all future, “minor”, firearms infractions.

No it won't. It would be referenced in cases with similar circumstances, not all charges under the same law. That would be more of that one-size-fits-all reasoning. We don't know all the circumstances of this case, but even the ones we do know are pretty particular as to why he doesn't deserve to be imprisoned for 3 years. He was posing for a pic with the gun in his non-dominant hand and laptop in the other. When the cops kicked the door in he dropped both the laptop and the gun, smashing the former presumably. He was arrested without incident and had no prior history with the police. These are all mitigating factors amongst whatever other ones the judge used for her reasoning. All of this plays a part in the decision.

Edited February 18, 2012 by cybercoma

[Guest Derek L]

No it won't. It would be referenced in cases with similar circumstances, not all charges under the same law. That would be more of that one-size-fits-all reasoning. We don't know all the circumstances of this case, but even the ones we do know are pretty particular as to why he doesn't deserve to be imprisoned for 3 years. He was posing for a pic with the gun in his non-dominant hand and laptop in the other. When the cops kicked the door in he dropped both the laptop and the gun, smashing the former presumably. He was arrested without incident and had no prior history with the police. These are all mitigating factors amongst whatever other ones the judge used for her reasoning. All of this plays a part in the decision.

Sure, and in my fabricated example using myself as the subject, nor would I “be a threat to the police” or have a “prior past of criminal behaviour”……Not to mention, I‘m sure I can afford a better lawyer and all my firearms are legal…As for it being his “dominant hand”, when dealing with a handgun, for all intense of purposes, they’re ambidextrous. (Some will have the safety on one side, same with mag release on most automatics, same goes for most semi-auto rifles, pump guns etc. The only rifle that’s seriously effected by the user being a lefty or a righty are bolt action rifles)

I’m curious, what lead the police to this residence?

[WWWTT]

I’m curious, what lead the police to this residence?

Why don't you tell us since its your long winded fabricated story losely based around your love of firearms.

WWWTT

[Guest Derek L]

Why don't you tell us since its your long winded fabricated story losely based around your love of firearms.

WWWTT

I don’t know, hence why I asked the question. Do you have anything constructive to add to the discussion or are you just trolling?

[cybercoma]

Sure, and in my fabricated example using myself as the subject, nor would I “be a threat to the police” or have a “prior past of criminal behaviour”……Not to mention, I‘m sure I can afford a better lawyer and all my firearms are legal…As for it being his “dominant hand”, when dealing with a handgun, for all intense of purposes, they’re ambidextrous. (Some will have the safety on one side, same with mag release on most automatics, same goes for most semi-auto rifles, pump guns etc. The only rifle that’s seriously effected by the user being a lefty or a righty are bolt action rifles)

I’m curious, what lead the police to this residence?

And this is why it's ridiculous to get into speculation about the judicial decision making in a fabricated story. You don't seem to understand how judicial reasoning works. The case in the OP is not going to be precedent for "all minor firearms offenses." You've criticized one aspect out of all of the factors in the story, which is meaningless on its own. It's a part of the entire story and list of facts that make up this particular case.

At the end of the day he was charged, tried, and convicted of a crime. He just wasn't given the ludicrous mandatory minimum because the judge believes it is unconstitutional. The offender still has a criminal record now and has been sentenced for a firearm offense.

Edited February 18, 2012 by cybercoma

[Argus]

I'm pretty sure that you don't understand what you're talking about.

Your surety is no evidence YOU know what you're talking about.

[Argus]

Actually, again, that just proves you don't know what you're talking about. The opinions have to have a justification. The justifications are usually long, and well explained.

There's a saying that every murder is justified -- to the murderer. Everything we do, good or bad, we can justify in our own minds.

You actually think it would be difficult, given the complexity of law, to come up with a justification for almost anything the SC wants to do? When the constitution of this country was written, a list of protected groups was enumerated within the Charter which specifically excluded homosexuals. It has since been 'read in' by the SC, but anything read in can be read out again, and there's more justification to read something out than bring it in because all you have to do is reference the original document.

[Smallc]

There's a saying that every murder is justified -- to the murderer.

Again, you're putting up a multitude of straw men hoping to hit something that doesn't happen.

[Smallc]

a list of protected groups was enumerated within the Charter which specifically excluded homosexuals.

And? We have a living constitution. Do you know anything about our system of government? Also, it isn't as clear as you make out in that regard, even the written part.

Edited February 19, 2012 by Smallc

[dre]

There's a saying that every murder is justified -- to the murderer. Everything we do, good or bad, we can justify in our own minds.

You actually think it would be difficult, given the complexity of law, to come up with a justification for almost anything the SC wants to do? When the constitution of this country was written, a list of protected groups was enumerated within the Charter which specifically excluded homosexuals. It has since been 'read in' by the SC, but anything read in can be read out again, and there's more justification to read something out than bring it in because all you have to do is reference the original document.

So what? Its not a perfect system, and no system with humans involved ever will be. I still find the courts to be the most competent branch of government, and just about the only one that has any interest in standing up for the rights of Canadians.