Judges oppose new laws on pre-trial custody

[Argus]

Those who have been around a while and have read a few of my comments will know from the outset I have little respect for the Canadian judiciary. I have even less respect for their grumbling and opposition to the Tories' newer anti-crime laws, even the ones I don't particularly support. To my mind, judges are nothing but political appointees whose major qualification for their jobs is not ability but who they sucked up to. Their very well-compensated job is to enforce the laws written by parliament. If they feel those laws are unfair or feel they cannot enforce them as written their only moral or ethical option is to resign.

Fat chance that will happen, of course. None of thse barely competent legal minds is going to give up the best paying job they're ever likely to get. But they continue to whine about the government cutting back on their ability to release criminals into the population as quickly as possible. The latest bone of contention being their desire to cut back sentences based on how long criminals have spent in pre-trial custody. Now this was never anything parliament authorized in the first place. Judges just decided to do it on their own, and then further decided over the years to increase the credit based on, well, whatever they felt like giving. Thus 1 day removed from a sentence for every 1 day in pre-trial custody became 1.5 days because, you know, jail isn't as nice as prison. That evolved into 2 days off for every day in custody, and in some cases even 3 days off a sentence for every day in pre-trial custody.

A little while the government decided it had had enough and limited this to a maximum of 1.5 days and even then only under special circumstances. Needless to say, the judges are getting huffy about it.

While I think trials take far too long to arrange and far too long to run I still agree with the government on this one, that giving multiple days off a sentence for time spent in custody is ridiculous. It had reached the point criminals were staying in jail in order to get more credits, knowing they were going to be eventually found guilty anyway.

Judges, of course, don't have to be reasonable, because, well, they don't need anyone's support and they can't be fired. So may are determined to continue to impliment their own sentences and give whatever credit they want, wrapped up in the ego trip that is being a Canadian judge.

http://www.theglobeandmail.com/news/politics/court-cases-to-stir-judges-feud-with-ottawa-over-sentencing-rules/article16293177/#dashboard/follows/

[cybercoma]

I still find it odd that you think language is so cut and dry. The way laws are written, they're often open to interpretation. The Crown argues their side, according to their interpretation of the laws and events, and the defence theirs. The judge needs to interpret the laws in accordance with a number of factors, including the particular circumstances of the case, past precedent, public sentiment, and the "spirit" of the law. They're not entirely free to make up whatever decisions they would like. If trials were so simple, we would have no need for a judiciary at all. If language was black and white, there would be no need to interpret the law. However, I think the vast majority of people understand that written texts need to be interpreted; language in general requires interpretation.

Edited January 13, 2014 by cybercoma

[Argus]

I still find it odd that you think language is so cut and dry. The way laws are written, they're often open to interpretation. The Crown argues their side, according to their interpretation of the laws and events, and the defence theirs. The judge needs to interpret the laws in accordance with a number of factors, including the particular circumstances of the case, past precedent, public sentiment, and the "spirit" of the law. They're not entirely free to make up whatever decisions they would like. If trials were so simple, we would have no need for a judiciary at all. If language was black and white, there would be no need to interpret the law. However, I think the vast majority of people understand that written texts need to be interpreted; language in general requires interpretation.

But the law IS black and white on this issue. They may not give out double time for time served. They may only give time and a half in special circumstances, not routinely. There is no freedom to interpret this.

[Michael Hardner]

Wilbur, please don't respond to trolls - just report them and they will eventually be removed.

[Big Guy]

There is a reason that in our system, the judicial branch has to be quite separate from the legislative branch. I believe that fact to be a strength rather than a weakness. The more one tries to apply a political or dogmatic template to the application of justice, the less it is served.

[Wilber]

Wilbur, please don't respond to trolls - just report them and they will eventually be removed.

Ya, I knew you would get around to it but couldn't resist.

[Wilber]

There is a reason that in our system, the judicial branch has to be quite separate from the legislative branch. I believe that fact to be a strength rather than a weakness. The more one tries to apply a political or dogmatic template to the application of justice, the less it is served.

Yes there is. Parliament makes the laws and the judicial system is responsible for enforcing them as long as they don't violate the Constitution or Charter of Rights. There is nothing in either that says convicted felons are entitled to double or triple time off for time served. That is something that the judicial system has entrenched on its own.

[Big Guy]

Yes there is. Parliament makes the laws and the judicial system is responsible for enforcing them as long as they don't violate the Constitution or Charter of Rights. There is nothing in either that says convicted felons are entitled to double or triple time off for time served. That is something that the judicial system has entrenched on its own.

My understanding is that the Constitution and the Charter of Rights ARE what give the judicial system the right to interpret and apply those laws that have been passed by Parliament. Our Constitution and Charter of Rights super cede the laws that Parliament passes. The other strength of the judicial system is that it has the power to declare any law that Parliament passes to be null and void because it contradicts the judicial systems interpretation of the Constitution and Charter of Rights. I believe that too is one of the checks and balances that have been built into our form of democracy.

[Wilber]

My understanding is that the Constitution and the Charter of Rights ARE what give the judicial system the right to interpret and apply those laws that have been passed by Parliament. Our Constitution and Charter of Rights super cede the laws that Parliament passes. The other strength of the judicial system is that it has the power to declare any law that Parliament passes to be null and void because it contradicts the judicial systems interpretation of the Constitution and Charter of Rights. I believe that too is one of the checks and balances that have been built into our form of democracy.

But the question of credit for time served has nothing to do with the Charter or Constitution. Do you think the judiciary ignoring the law and making things up as they go along is somehow preferable just because their actions don't violate the Charter?

Edited February 14, 2014 by Wilber

[jacee]

Yes there is. Parliament makes the laws and the judicial system is responsible for enforcing them as long as they don't violate the Constitution or Charter of Rights. There is nothing in either that says convicted felons are entitled to double or triple time off for time served. That is something that the judicial system has entrenched on its own.

People of limited means often can't post bail, so they stay in jail in remand until court. That's more restrictive conditions, no programs and often housed with serious offenders. Remand time may get them extra credit toward their sentence.

Those able to post bail money don't do such severe pre-sentence time. I'm ok with evening out that way.

Where offenders don't make bail for reasons of protecting public safety ... not so much.

So I agree with some judiciary leeway on this.

.

[Wilber]

People of limited means often can't post bail, so they stay in jail in remand until court. That's more restrictive conditions, no programs and often housed with serious offenders. Remand time may get them extra credit toward their sentence.

Those able to post bail money don't do such severe pre-sentence time. I'm ok with evening out that way.

Where offenders don't make bail for reasons of protecting public safety ... not so much.

So I agree with some judiciary leeway on this.

.

The issue isn't whether there should be credit for time served, it is about how much. Judges are just automaticaly giving it. Very few spend extended periods in remand because they can't make bail.

[g_bambino]

Yes there is. Parliament makes the laws and the judicial system is responsible for enforcing them as long as they don't violate the Constitution or Charter of Rights. There is nothing in either that says convicted felons are entitled to double or triple time off for time served. That is something that the judicial system has entrenched on its own.

The charter does grant the right to not be subjected to cruel and unusual punishment. Given that wording, what constitutes cruel and/or unusual punishment is left to interpretation. Whatever interpretation becomes most commonly employed by courts becomes the convention. That is, until cabinet or parliament create a law stating otherwise.

[jacee]

The issue isn't whether there should be credit for time served, it is about how much. Judges are just automaticaly giving it. Very few spend extended periods in remand because they can't make bail.

Well then they're not getting time-served credit, so no problem.

[Wilber]

The charter does grant the right to not be subjected to cruel and unusual punishment. Given that wording, what constitutes cruel and/or unusual punishment is left to interpretation. Whatever interpretation becomes most commonly employed by courts becomes the convention. That is, until cabinet or parliament create a law stating otherwise.

The court's own terms for cruel and unusual punishment regarding prison sentences are "disproportionate" and "rare and unique". Neither of which apply to pre trial custody where extra credit is given out of hand. When people do their best to delay trial knowing they will get shorter sentences because of double or triple credit for time served, there is a problem.

Edited February 14, 2014 by Wilber

[Wilber]

Well then they're not getting time-served credit, so no problem.

When it is applied to sentences where bail is not given, there is a problem.

[jacee]

When it is applied to sentences where bail is not given, there is a problem.

How many cases?

Some data would help.

[Wilber]

How many cases?

Some data would help.

Any case where they are considered a flight risk or a danger to the public. Odd don't you think that the courts will keep them in jail prior to trial because they are a risk, then shorten their sentences if convicted because of it.

[g_bambino]

The court's own terms for cruel and unusual punishment regarding prison sentences are "disproportionate" and "rare and unique". Neither of which apply to pre trial custody where extra credit is given out of hand...

I thought the prison where the person had been detained factored into the decision. The Don Jail, for instance, was regarded a horrendous place and judges gave people who'd been held there while awaiting and through trial double or triple credit.

[jacee]

Any case where they are considered a flight risk or a danger to the public. Odd don't you think that the courts will keep them in jail prior to trial because they are a risk, then shorten their sentences if convicted because of it.

Show me how often that happens.

[Wilber]

Show me how often that happens.

Read the paper, watch the news.

[Big Guy]

But the question of credit for time served has nothing to do with the Charter or Constitution. Do you think the judiciary ignoring the law and making things up as they go along is somehow preferable just because their actions don't violate the Charter?

The point that I was trying to make is that our Constitution allows the judicial arm the flexible interpretation of laws as it feels applies. I do believe that the judicial system could not be a check or balance in our form of democracy if it was not allowed that flexibility. There have been many court decisions which I have thought to be too "lenient" and others too "harsh" but I accept those decisions as the cost of maintaining the integrity of our system. I personally do not feel that judges or juries should have their hands tied by minimum or maximum sentences. I especially distrust a judicial system that is prone, influenced or directed by the far left or far right leanings of the current dogma of a political party temporarily in charge of the government.

Edited February 14, 2014 by Big Guy

[g_bambino]

I personally do not feel that judges or juries should have their hands tied by minimum or maximum sentences. I especially distrust a judicial system that is prone, influenced or directed by the far left or far right leanings of the current dogma of a political party temporarily in charge of the government.

Are you classifying acts of parliament as influence or direction by the dogma of a political party temporarily in charge of the government?

[Big Guy]

Omit

Edited February 15, 2014 by Big Guy

[Big Guy]

Omit

Edited February 15, 2014 by Big Guy

[Big Guy]

I believe that some are. That is why when a right leaning party takes over from a left leaning party then they pass laws that negate previous laws. One government brings in and/or increases the GST and the next government cuts it. One government decides to ignore the military and the next government pours all kinds of money into it. One government passes a gun control law and the next government rescinds it. One government represents a "neutral" position on issues in the Middle East and the next government comes out in full support of one side.

I have no doubt that the next government will negate many of the laws that this current government has passed.

Meanwhile, our judicial system will continue to interpret our Constitution in an objective manner and maintain a check and balance on Parliament as it continues to change hands.