UPDATED: The chief justice on whether judges coddle criminals


Chief Justice Beverly McLachlin isn’t given to casual remarks about matters of law and order, and she’s cautious about politically sensitive subjects. In her interview with Maclean’s (in this week’s issue and here), she seemed understandably reluctant to say much about the federal government’s push to imposing mandatory minimum penalties for a raft of offences. McLachlin deflected our first question on the topic, on grounds that issues surrounding the new minimums are likely to come before her court.

However, asked a follow-up question on whether Canadian judges are, by and large, imposing appropriate sentences, she defended them. It’s the sort of thing she needs to know about, as chair of the Canadian Judicial Council, which has authority over all federally appointed judges. Her main point: courts sentence criminals appropriately, keeping in mind that, unlike their self-described tough-on-crime critics, judges must under the Criminal Code consider factors other than retribution, including rehabilitation. And McLachlin made a point of noting that if a particular sentence looks too soft, Crown prosecutors can always appeal, and often do.

I’ve written about the Conservatives’ enthusiasm for mandatory minimums before. On several occasions, I’ve asked the Justice and Public Safety ministers’ press officials to provide information on any patterns of light sentencing that the government find so egregious that dictating sterner penalties is the only solution. So far, they have not offered any such analysis. This leaves us in the dark about exactly why the government feels it needs to direct judges on sentencing. In some cases, the minimum jail terms proposed are downright baffling—at least two years for major fraud, for example, even though the normal sentence is already three to five years.

Without any analysis of sentencing to go on, we’re left with nothing but anecdotes and impressions. These have proven highly suspect. Treasury Board Stockwell Day, for instance, spoke in detail during a news conference last summer about how repeat, violent offenders often got off with no jail time under the Liberals, particularly thugs who broke into the homes of senior citizens and beat them up.

Day painted a disturbing picture. But when I asked his officials for background on the judicial outrages he so vividly described—cases, reports, anything at all—they could provide nothing. Shunted along to the Justice and Public Safety ministers offices, I discovered they, too, couldn’t point to examples that support Day’s remarks. In fact, as I discovered when I looked into the question, Canadian judges typically hand down sentences of eight to 13 years in for violent home invasions, and prison time has been getting longer in recent years.

It’s entirely possible, of course, that judges have been systematically handing down sentences for some crimes that Canadians might find too lenient. The government simply hasn’t bothered to make that case. Instead, the Conservatives seem to be using mandatory minimums mainly as an easy way of signaling their outrage.

Declaring a desire for longer prison terms is lighter lifting for any politician than, say, the slog of developing credible strategies for actually combating crime, or addressing its roots—you know, poverty, inadequate schools, lousy services in run-down neighbourhoods, the mere mention of which consigns one to being written off as a hopeless softy.

Yet these are the factors that spring to mind when you read the Criminal Code’s “Purpose and Principles of Sentencing” section. It spells out the need “to denounce unlawful conduct” and “deter the offender and other persons.” But, as McLachlin alluded, the code also affirms the aims of “rehabilitating” and instilling “a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.”


Reading some of the comments on this post, I thought it might be helpful to offer a bit of background on McLachlin’s approach to criminal law cases. Here’s what Philip Slayton wrote in Maclean’s last year in an article marking her 10th anniversary as chief justice:

“Criminal law? Here, commentators think they see a trend to favour the Crown and the police, rather than the accused. Queen’s University law professor Donald Stuart was reported as saying at the June CBA conference that a law-and-order bias has crept into recent Supreme Court Charter decisions.”

I mention this since it seems some readers imagine that McLachlin and her court tend to be permissive on crime. That apparently isn’t the conventional wisdom among close watchers of the Supreme Court of Canada.

Sorting out her bent on crime strikes me as interesting, but not the core issue here. That would be whether or not the government has provided a convincing argument to support its view that mandatory minimums are needed for many different crimes.

I don’t see how they can make that policy case without assembling data about the sentences that judges have been handing down for those crimes, showing that the prison terms are too short. Again, as I said above, it’s entirely possible there might be crimes for which judges are too lenient. But where’s the research from Justice Canada to make that case?

And one final observation. When we’re debating sentences, we need to keep in mind the fact that mandatory minimums are mostly imposed for very serious offences—gun crimes, major fraud, human trafficking, and the like. But public outrage and police frustration are more often associated with chronic offenders, who tend to commit a long series of less shocking property crimes—shoplifting, small-time drug dealing, breaking into cars.

It’s notoriously difficult to figure out what to do with repeat criminals, often drug addicts, who don’t graduate to major crime. But a lot of work on this has been done in British Columbia. The Vancouver Police Department reports that significant progress has come from smarter police work and closer cooperation with Crown prosecutors:

“In 2009, the VPD increased the number of targeted enforcement investigations on the most prolific chronic offenders. To complement these efforts, great strides were taken to further increase sentences and pre-trial custody for property crime offenders.”

This seems to me to be a big part of the solution to public disenchantment with the way criminals are punished. On the other hand, it’s not easy to encapsulate pragmatic new police strategies in a slogan, or to claim credit in the political sphere for that hard work.

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