Canada Supreme Court Rules Against Harper Again

[dre]

Crime rates in most categories have been in decline for years now.

Yes... the call to take sentencing out of the hands of judges that know the intimate details of each case, and put it in the hands of politicians thousands of miles away that know absolutly nothing about it, is purely emotional and ideological and not grounded by an real data at all.

[On Guard for Thee]

Yes... the call to take sentencing out of the hands of judges that know the intimate details of each case, and put it in the hands of politicians thousands of miles away that know absolutly nothing about it, is purely emotional and ideological and not grounded by an real data at all.

That jogged my memory back to a radio interview I heard with a retired US state judge ( I forget which state) He described a case were he had a young guy come before him charged with simple possession of MJ. The kid had just graduated from high school and was headed to college with 2 scholarships in hand, one for his academic skill, the other for sports. No prior history whatsoever but, because of state legislated MMS he was forced to send the kid to prison for 6 months, were he previously could have fined him a couple hundred bucks and told him to stay out of trouble. He commented that the kid wasnt much of a criminal to start with but he may be well on his way after his life gets wrecked.

[dre]

I think if we made it a rule that anyone caught carrying a loaded firearm on their person without a licence, particularly in an urban environment, would be shot on sight a lot fewer criminally inclined people would be carrying around loaded firearms.

I think if we put people in jail for long periods of time for carrying any kind of concealed weapon there'd be fewer murders by thugs and street scum.

Do you have a cite which says otherwise?

Yes every single cite thats out there. Use your google.

Criminals do not believe they are going to get caught. They dont sit around thinking "well... Im willing to commit an offense punishable by 10 years, but 20 is just too much!!!".

From the Canadian Criminal Justice Association

Rationale

Mandatory minimums and consecutive sentences do not deter crime. Rather, lengthier periods of incarceration may actually increase the likelihood of recidivism among offenders. Offenders simply do not consider the length of sentence when deciding whether or not to commit an offense. Rather, their concern lies with whether or not they will be caught and punished for the offense. Accordingly, mechanisms that promote severity of punishment as the ultimate sentencing rationale will fail to yield tangible deterrent effects.

While the CCJA recognizes the public's desire to punish violent offenders the judiciary must be allowed to continue utilizing their discretionary power under section 718 to punish and incarcerate offenders who are deemed dangerous, and to apply more lenient sentences where circumstances are appropriate.

Mandatory minimum penalties inevitably have a disproportionate impact upon minority groups such as aboriginal offenders. At the same time they eliminate options for absolute and conditional discharges, probation and conditional sentences. Mandatory minimum sentences thereby also increase the rate and volume of incarceration. Continuing and expanding use of incarceration will further increase the costs of criminal justice for federal and provincial corrections with no proof that these sentences will improve public safety.

Background

In 1995, Parliament enacted section 718 of the Criminal Code in response to numerous studies and commissions on sentencing, and as a means of ensuring public safety. In doing so, they also sought to increase the effectiveness of sentencing as a deterrent and rehabilitative mechanism. Section 718 limited the use of incarceration as a sentencing tool, but still provided the option to judges when the particular offense before them warranted a period of incarceration. Judicial discretion is a hallmark of the Canadian criminal justice system. No person is in a better position to consider the myriad of factors necessary to reach the appropriate sanction then that of the sentencing judge. They hear all of the admissible evidence, and possess the requisite experience to come to the appropriate conclusion. This is why the Canadian Sentencing Commission recommended the abolition of all mandatory sentences of imprisonment, with the exception of the sentence for murder.

Increasing the number of offenders in prison does not mean that offences stop occurring. The United States has over two million people in its prisons, one of the highest rates of incarceration in the world. Yet, the U.S. also has one of the highest violent crime rates in the world. Clearly, incapacitation, even at this staggering level has had no effect on crime reduction. Although Canadian rates of incarceration are generally smaller, they also have had no effect on the crime rate. Indeed, a report of the National Crime Prevention Council of Canada in 1997 noted that Canada has always had a high incarceration rate compared to other Western nations.

One American study on mandatory minimums for gun crimes found, that harsh penalties increased defendants' incentives to go to trial rather than plead guilty. Mandatory sentences lead to more trials, appeals and prison overcrowding. This in turn impacts on the release planning and reintegration efforts of offenders and contributes to recidivism. Overcrowding soaks up vast quantities of resources with negative rather than positive impacts, diverting resources away from treatment and programs for those who might benefit from them. Americans' concern and dissatisfaction with their criminal justice system has led to a major initiative to conduct a sweeping bi-partisan review of the total system and the excessive reliance on incarceration, an initiative that we recommend should also be undertaken in Canada.

Sentence length, and thereby the level of incarceration, will increase as a result of Bill C-10 which creates new mandatory minimum penalties and increases those already existing in law for certain sexual offences against young people as well as creating mandatory minimum sentences for certain drug offences.

Laws based your emotional and simplistic understanding of crime are guaranteed to fail. Not only will they not lower crime rates but they will increase them because they are incredibly expensive and divert money away from programs that actually get tangible results.

[Keepitsimple]

http://www.cbc.ca/news/politics/texas-conservatives-reject-harper-s-crime-plan-1.1021017

That article is just another example of how the CBC sullies itself with its Left Wing propaganda and misinformation. Texas and the Southern States have incarceration rates that are six times that of Canada - and its more than just minimum sentencing. Their rate of crime, punitive sentencing, less lenient parole, and a third-world prison system is an abomination - and anyone who uses Texas as an example to criticize the baby-steps that the Harper government has taken is outrageously uninformed or intentionally deceitful.

[ToadBrother]

Yes... the call to take sentencing out of the hands of judges that know the intimate details of each case, and put it in the hands of politicians thousands of miles away that know absolutly nothing about it, is purely emotional and ideological and not grounded by an real data at all.

I firmly believe that the only real definition of an "activist judgment" is a judgment that some group does not like. Again that is not to say that the Supreme Court cannot be criticized, or that every ruling is perfect, but really most of this is just sour grapes. I don't see too many people railing on against yesterday's decision on Mouvement laïque québécois v. Saguenay, and indeed even papers like the National Post editorial board agrees that in general terms the ruling was right and proper.

But, as I also said elsewhere, the Conservative Party has, since it reconstituted itself, posed as the victim of the Liberal Establishment. Despite the fact that this Court has no lack of Harper appointees, for the whole persecution complex to be pushed, it has to take over the role, since there are so few evil Liberals left in positions of influence to confound the righteous cause of Conservatism.

The flipside is that the opponents of the Tories seem just as willing to put the Supreme Court on pedestal, so that the Court is cast as the great crusader against the evils of Conservatism. In other words, the opposition is handing the Tories the ammunition they need to declare that the court is interventionist, overstepping its bounds and behaving in some illegitimate fashion.

I should also remind all those Liberals and NDPers that, whether this election or some future one, they too will eventually find their legislative agendas on the hot seat in numerous ways. With the strong possibility that Medicare may find itself running afoul of the Charter, I wonder how many progressive types would be cheering the high court if it were to throw a monkey wrench into the health care machinery and blow the door wide open to a parallel private system. I suspect that there would be long winded articles in centrist and left-leaning newspapers decrying the activist court overstepping its bounds and intruding on Parliament.

Edited April 16, 2015 by ToadBrother

[poochy]

That article is just another example of how the CBC sullies itself with its Left Wing propaganda and misinformation. Texas and the Southern States have incarceration rates that are six times that of Canada - and its more than just minimum sentencing. Their rate of crime, punitive sentencing, less lenient parole, and a third-world prison system is an abomination - and anyone who uses Texas as an example to criticize the baby-steps that the Harper government has taken is outrageously uninformed or intentionally deceitful.

Nope, we're almost like Texas, there I said it, I lobotomized myself last night and I now almost agree with the left wing fringe.

[poochy]

We are undoubtedly better served by tighter gun control than than we are by throwing people in after they have committed a crime. The US proves this for us quite regularly.

Yea, just like the war on drugs, we clearly need to make shooting people, or threatening to, super double illegal, cuz we know that works. I hear that drugs are hard to come by, especially if you happen to be a criminal, nearly impossible, and of course when they happen to come across drugs they immediately call the, register my stash hotline, just in case they get tempted to actually use them.

I love it when you twist yourself into knots trying to make every subject fit your broken ideology. Longer sentences for actual bad guys, well golly gee, can't have that, useless law that doesn't prevent crimes, well golly gee that sounds great! So, so broken.

[PIK]

SC justice Moldaver has ripped bev a new one. She is basing this on fantasy, on something that never did or never will happen. Something has to be done , she is out of control. This was based on a complaint by former mayor millar of TO when they were having shooting problems. So really when you look at it all, yes it is personal.

[On Guard for Thee]

That article is just another example of how the CBC sullies itself with its Left Wing propaganda and misinformation. Texas and the Southern States have incarceration rates that are six times that of Canada - and its more than just minimum sentencing. Their rate of crime, punitive sentencing, less lenient parole, and a third-world prison system is an abomination - and anyone who uses Texas as an example to criticize the baby-steps that the Harper government has taken is outrageously uninformed or intentionally deceitful.

So because you dot like what the article tells you, you wanna shoot the messenger. Or do you think CBC just made it up and ascribed phony quotes to state officials. Uh huh. When I wet looking for the article the CBC was just the first one to come along. They are from from the only ones to cover it. And if you read the article in any depth, you would find some of the quotes are from people who are about as far from the left as you can get. It seems Harper is the one uninformed here.

[On Guard for Thee]

Yea, just like the war on drugs, we clearly need to make shooting people, or threatening to, super double illegal, cuz we know that works. I hear that drugs are hard to come by, especially if you happen to be a criminal, nearly impossible, and of course when they happen to come across drugs they immediately call the, register my stash hotline, just in case they get tempted to actually use them.

I love it when you twist yourself into knots trying to make every subject fit your broken ideology. Longer sentences for actual bad guys, well golly gee, can't have that, useless law that doesn't prevent crimes, well golly gee that sounds great! So, so broken.

You made my point, did the war on drugs work...are you sure it was only last night you did that operation.

[On Guard for Thee]

SC justice Moldaver has ripped bev a new one. She is basing this on fantasy, on something that never did or never will happen. Something has to be done , she is out of control. This was based on a complaint by former mayor millar of TO when they were having shooting problems. So really when you look at it all, yes it is personal.

So now you reckon you know what will and wont happen. You should petition Harper for a seat on the SC then, as it seems they are struggling under the weight of only knowing what might happen.

[Big Guy]

It still comes down to the question of which deterrent is more effective - punishment or rehabilitation? I have read through the differing arguments, filtering through the insults and baiting, and the question remains.

I hear the argument that when a person is in jail then they are not out doing crime (notwithstanding the rapes, thievery, illegal drug, intimidation, assault and murders that take place in jails). So I assume that the folks who want to (put them away and throw away the key) use longer jail terms as a deterrent. Why not then use torture (the old strap) and really punish them? So I guess the folks on that side of the argument believe that the more people we have in jail then the safer are us folks on the outside. But at $118,000 a year per inmate I got better things to do with my money.

The folks who are for rehabilitation believe that if/when we change the persons tendency from crime to law abiding then they create fewer crimes and it makes it safer for us folks on the outside.

All the statistics and research that I have seen indicates that the longer terms of incarceration which are a consequence of mandatory minimums are not a deterrent from future crimes.

Would someone please post links to any reputable study or presentation which shows that longer sentences or punishment is a deterrent from future criminal activity.

Edited April 16, 2015 by Big Guy

[PIK]

Yes guard maybe I should be. She has stepped over the line.

[Argus]

Texas decided to put a lot of bucks into crime prevention and they found that they recovered about 3 bucks for every one they spent on those various programs due to the reduction in crime and recidivism rates.

Texas went from putting ZERO money into prevention to putting money into prevention, and it paid off. But there is a sliding scale to such things, which returns less the more you put into them.

I also think the three strike rule which put people in prison for life for stealing a candy bar was idiotic and moronic. But that's not what we're talking about here.

[On Guard for Thee]

Texas went from putting ZERO money into prevention to putting money into prevention, and it paid off. But there is a sliding scale to such things, which returns less the more you put into them.

I also think the three strike rule which put people in prison for life for stealing a candy bar was idiotic and moronic. But that's not what we're talking about here.

I doubt any one program will be the panacea for dealing with crime, but when you have of all people Texas saying, hey, we tried that way and it didnt work, so we tried something else and the outcomes were much better, maybe we should think about not going down the same path. You know what they say about people who do they same thing over and over and expect different outcomes. And I dont think what we are talking about here has anything to do with shooting people on sight.

[Argus]

http://criminology.utoronto.ca/wp-content/uploads/2013/09/DWG-GeneralDeterrenceHighlights14Feb2013.pdf

While there may be justifications for mandatory sentencing requirements, the law in question appears to be purely punitive in nature.

I'm going to assume you never read the cite you posted, or even the summary. Let me give you my take on it. From what they write, there is not a linear scale to sentencing with respect to the deterrent value of the punishment involved. There is a midpoint in which the deterrence is about as high as it's going to go, and raising the punishments to ever higher limits will not noticeably deter people from committing the crime. Clearly, as they say, one day in jail for armed robbery will deter no one. Several years will. Ten years, however, probably won't deter potential armed robbers significantly more than 5 years. And twenty years won't do much to add to that.

However, they do state without reservation, that an extremely important facet of deterrence is the certainty of the punishment. A punishment you MIGHT get IF you get caught, is far less of a deterrence than a punishment you WILL get WHEN you get caught.

Now the issue in question, both from what I read here and my memory of other things I've read, is that in many, many cases, those arrested with firearms, and let's be honest, we're talking criminals with hand guns, faced no added punishment. There was always a charge of illegal possession of a firearm, but it was generally treated without much severity by the courts, and so Crowns generally traded the charges off in negotiations for plea bargains. Thus not only was there no certainty at all that being caught with a hand gun would get you much, if any time, but even if it did, well, it wasn't severe.

I've mentioned before my memory of a case of gang members apprehended by police with a loaded, fully automatic Uzi in their van who were FINED and then sent on their way.

What the Tories intended to do with their mandatory sentencing for firearms was add that certainty back into the mix. If you were caught with a gun you WILL go to prison and for several years.

Your contention that the support you posted dismisses the deterrence affect of this rests upon your assumption that three years in prison for carrying a loaded hand gun is unduly severe, and will add no deterrence to what would be there without such mandatory minimums. But there's no evidence supporting that, nor does the paper you cite say so.

Furthermore, sentences aren't just about deterrence. They're about punishment and, in some cases, the safety aspect of keeping dangerous people off the streets for as long as possible.

I would suggest to you that people in the habit of carrying hand guns around on their persons are exactly the sort of individuals society is best protected against by keeping them off the streets for long periods of time.

[Argus]

Apparently the SC thinks its overboard when you can get 3 years for having the ammo too close to the weapon and frankly so do I. That is one of the hypos some are getting their hair on fire over, but the courts job is to look ahead and cover all the bases. So its back to the drawing board.

So do I, which is why there is no way in hell anyone would ever be so charged.

[Argus]

Now you are sinking into NRA mentality.

No, the NRA encourages all people to carry firearms. They believe that if everyone wore their 'hog' around all the criminals would be killed.

[Argus]

Yes... the call to take sentencing out of the hands of judges that know the intimate details of each case,

And why do you suppose that suggestion found such an enthusiastic audience among the general public?

Could it be the sentences being handed out by judges were considered unduly lenient?

[Argus]

But, as I also said elsewhere, the Conservative Party has, since it reconstituted itself, posed as the victim of the Liberal Establishment. Despite the fact that this Court has no lack of Harper appointees, f

I might point out that after decades of Liberal government the Tories might have had a great deal of difficulty finding conservative judges of the necessary seniority to appoint to the Supreme Court.

[ToadBrother]

I might point out that after decades of Liberal government the Tories might have had a great deal of difficulty finding conservative judges of the necessary seniority to appoint to the Supreme Court.

And the "woe is us" game goes on, nearly a decade after having achieved power.

[Argus]

And the "woe is us" game goes on, nearly a decade after having achieved power.

Is my logic flawed in some way? Please point it out rather than resorting to snide one-liners.

It is quite rare to appoint someone from private practice to the Supreme Court. Generally, what the Tories need to do was find conservative minded judges willing to become judges, then appoint them, and then wait for some years before moving them up the judicial ladder. That takes ... quite a while.

Do you honestly think they would have selected Nadon, a man who had already retired, if they could have found another capable, conservative minded Quebec judge?

[dre]

And why do you suppose that suggestion found such an enthusiastic audience among the general public?

Could it be the sentences being handed out by judges were considered unduly lenient?

Probably become most of them think like you, and base their opinion on emotions, and dont really know anything about which policies are effective in reducing crime rates and recidivism rates.

The public used to show up in droves and cheer on public stonings and beheadings too.

[ToadBrother]

Is my logic flawed in some way? Please point it out rather than resorting to snide one-liners.

It is quite rare to appoint someone from private practice to the Supreme Court. Generally, what the Tories need to do was find conservative minded judges willing to become judges, then appoint them, and then wait for some years before moving them up the judicial ladder. That takes ... quite a while.

Do you honestly think they would have selected Nadon, a man who had already retired, if they could have found another capable, conservative minded Quebec judge?

Okay, I'll try to be a little less flippant.

If you look at the record of Presidents' appointments to the Supreme Court, particularly the Chief Justice, there's a rather long history of Presidents not getting the loyal ideological servants they thought they were putting on the Bench. Even Chief Justice Roberts has proven far more independent-minded than either Bush or Bush's critics thought he would be. They referred to Roberts as a ideological conservative of fairly hard views, and yet he has demonstrated what so many judges demonstrate, that they take their independence and their constitutional role far more seriously than politicians do (we won't mention Clarence Thomas, who has proven perhaps one of the least productive associate justices in US history). While judges certainly do have their ideological positions, judicial ideology doesn't really line up very well with political ideology.

And that is really the key here. People who attack the Supreme Court (both in Canada and the US) tend to assume that theories of jurisprudence are simply judicialized variants of political ideology. But I think that's very wrong headed, and misreads how the courts view themselves, and how ideology informs their decisions.

To some extent the recent spate of Supreme Court rejections is just bad luck. Some of the laws, like the anti-prostitution and anti-assisted suicide provisions that were tossed, aren't even the Tories, so how exactly either the Government's allies or critics deem these attacks on the current occupants of the Government benches eludes me. The reference opinion on Senate reform doesn't count either, because I don't think anyone can read the Government's submission and come away thinking that the Government was even serious. It can be construed as a defeat for Harper, I suppose, since it threw out his own attempted Senate reform legislation, but was there anyone that seriously thought that legislation would ever stand up to a constitutional test? So that leaves a few rulings like the Tories' "tough on crime" reforms, which have little or no academic support, and do raise constitutional issues.

For what I consider a far more sensible view on recent rulings, I urge you to go to Leonid Sirota's blog at Double Aspect (https://doubleaspectblog.wordpress.com/). He tends to be pretty fair minded, and has certainly written some articles critical of the Supreme Court (the Nadon decision is one that he viewed in a negative light). His point of view, one I share, is that the very notion of an activist court, here or in the US, is an invalid one, that courts, where they get rulings right or wrong (by anyone's view), aren't approaching the issues from the say way that partisans are.

[guyser]

And why do you suppose that suggestion found such an enthusiastic audience among the general public?

Could it be the sentences being handed out by judges were considered unduly lenient?

Nope.

The general public is for the most part made up of a bunch of idiots, especially when it comes to the Court and sentences.

The public thinks they know what went on in a trial, thinsk they know the facts, but when questioned they either stray from an answer or offer bugger all else in the way of facts.

We ALL know about Karla and her nasty deeds. Plenty of people are confident she got off because we are too lenient in this country. But if the facts get laid out, they are wisened to what actually went on. Tell the same people that if you bought something then showed up the next day to get it and the seller said "oh I need another $1000' ...they get pissed.

I get the Lexus court Docs in the mail, the trial of the Eaton Centre -Jane Criba shooting was an amazing case for this analogy.

I consider myself soomeone who can read well and keep things organized in a story. This case? Holy shite it was so very hard to keep who was who and who did what I am amazaed they got even one conviction let alone all of them.

It is my estimation that the gen'l public doesnt know much about the justice system and all they seem to want is long long sentences for anything.

Edited April 16, 2015 by Guyser2