RE: PRIVATE MEMBER’S BILL 66 – JUDICIAL ACCOUNTABILITY ACT

CRIMINAL LAWYERS’ ASSOCIATION
THE LAW SOCIETY OF UPPER CANADA
THE ADVOCATES’ SOCIETY
CANADIAN CIVIL LIBERTIES ASSOCIATION
THE LAW UNION

The Criminal Lawyers’ Association, The Law Society of Upper Canada, The Advocates’ Society, the Canadian Civil Liberties Association and The Law Union, will be holding a Joint Press Conference at 1 p.m. on Monday, May 15th, at Queen’s Park to urge a speedy withdrawal by the Government of the Judicial Accountability Act, Bill 66.

This misconceived legislation is based on no acceptable principles of law, will achieve absolutely nothing, except create a large amount of useless paperwork, while representing an unacceptable attack on the fundamental constitutional principle of judicial independence.

The Bill does not make the court system more open or accountable to the public. Our public courtrooms can be attended by anyone and the media carries courtroom events out to the public on a continuous, on-going basis. Whatever concerns one may have about limitations of media coverage regarding criminal cases, those concerns are trivial compared to the limitations of the data to be gathered under Bill 66. So more openness will certainly not be the result of this Bill.

The Bill seeks to keep records of sentences imposed after not guilty pleas for offences with maximum sentences of 5 years or more. The Record to be kept is concerned only with what the maximum sentence is and what mitigating circumstances “resulted in a lower sentence.” Unacceptable principles or assumptions reflected in this Bill include: the maximum sentence is the ‘normal’ sentence and departures from the maximum sentence require explanation. Anyone with even a basic knowledge of criminal law knows neither of these assumptions is true. It is astounding and disappointing to see a Bill reflecting such inaccurate assumptions.

Even more disappointing is the assumption that the only record that matters about the sentence in a case is: the maximum sentence; the sentence imposed; and what mitigating circumstances “resulted in a lower sentence.” When the media are criticized in their coverage of court cases it is often on the basis that their summary of the case omits significant facts that makes the sentence perfectly understandable and appropriate, leading to ill-founded concerns about the sentence by the public. Research shows again and again the validity of such criticism. When research surveys are done of sentence cases, and respondents express concern about a sentence being too lenient, when more facts about the case are made known respondents generally revise their views and express support for the lower sentences. The data to be collected by Bill 66 makes the average newspaper account look like a detailed research paper by comparison. Bill 66 is so simplistic in its assumptions about sentencing that its results will be worse than useless and in actuality misleading. To the extent that anyone claims that the new mounds of paper to be created pursuant to Bill 66 will provide any useful data, they obviously have no knowledge of what data is required to make sensible sentencing decisions or what information is required to make logical, sensible and sound conclusions about sentencing decisions.

But it is questionable whether sensible and sound conclusions are what the Bill is about. Upon introduction it was justified as publicizing to government and the public “which judges believe that stiff sentencing is an important way to protect law-abiding citizens and motivate lenient judges to give out tougher sentences.” The idea that only long sentences protect and leniency is to be stamped out is absolutely child-like in its simplistic thinking. Few ideas in criminology and penology have the straight-forward, clear cut track record this idea does: abject failure. Harsh sentencing has been done to death both historically as our country and others based upon the British model of justice moved towards a greater degree of civilization, and even currently in certain countries around the world who hang and maim and imprison for life at the drop of a hat. Such “stiff sentencing” has never succeeded, nowhere, not ever, not anywhere, in achieving what its supporters thought would so obviously result. It has only created more misery and in many cases provided a long education in criminality for young persons who, with a more rational and mitigated sentence, might have been saved from a life of crime. In the United States today excruciatingly severe and mandatory sentences in drug cases have created a nation imprisoned within a nation, populated by visible minorities and the underclass, at an incredible expense to the taxpayers, without the slightest success in achieving anything that would approach justification for the financial and social costs.

Most particularly odious in Bill 66 is the requirement that the records include “the name of the judge”. This is a matter of court record and should be found in Court records only. It is completely unacceptable to see politicians collecting and tabling in the Legislature names of judges to assess their sentencing decisions. The essence of justice is individualized sentencing based upon the particular circumstances of a case and the particular circumstances of the accused. Obsession with the maximum sentence and why it was not imposed is nothing less than an outdated and uncivilized “hang everybody” philosophy missing only the gallows. Bill 66 is, plainly put, political interference in the sentencing process. It is unacceptable in a civilized democracy governed by the rule of law and not by the rule of politicians.

For all these reasons Bill 66 should be withdrawn immediately.