Sunday, August 21, 2011
The Honourable Robert Douglas Nicholson
Justice Minister - Federal
House of Commons
RE: Minimum Sentencing – Recent Controversies
Dear Mr. Robert Nicholson:
Although I have no doubt that your government will not be reversing itself on the matter of mandatory sentences; and thus so it should be; in the long-term battle for the hearts and minds of the public on the issue; I think that the arguments that have been proffered could be improved upon.
There is no doubt that if the legislation was weakened to include a ‘safety valve’, the sophists of the law could, over time, drive that wedge to the point of returning judicial practice back to its current state. I have no doubt that this argument has already been considered.
Garnering from popular press and sentiment, public concern about sentencing seems to centre on judicial softness on crime. However, just as strong an argument; stronger in my mind; revolves around judicial inconsistency and the effect that such wide disparity of sentencing has on the national psyche on the administration of justice.
In late 1981, I was employed at St. Hubert’s Restaurant. One of the buzzes at the restaurant was over a former employee, a waiter; who had been accused of raping two and three year old boys (if memory serves me correctly) and drowning one in the Ottawa River. The person in question received a sentence of only 2 years; which from what I understand was partially due to the relative dearth of evidence. The irony was that the father of the 2 boys was incarcerated at the time; serving a sentence of 3 years for armed robbery. I believe that upon learning about the happenstance to his boys, he committed suicide. The anecdote obviously got my attention as to the rational and legal perversity that seemed to be coming over the court and the administration of justice in general. I am aware that there is a conflation between two issues here: disparity of sentencing for the same crime and the rational incongruity in sentencing between different types of crimes. However, close observation of judicial affairs since that time has only confirmed this disdain about the courts in general.
The problem with this relativist approach to sentencing is that the disparity of sentencing is as likely to be consequence of the prejudices of the jurists as it is the circumstances of the case. I think the evidence is abundant and apparent that I need not to cite examples. So apparent and abundant is it, I have read about some American jurisdictions which have created an extra judicial body to adjust sentencing after sentencing because of the irrational incongruities between similar cases. The issue reached the concern of jurists in Australia that one cited a warning made from over a half century ago.
“As long ago as 1953 Professor Norval Morris warned that there were gross and unjust variations in sentences imposed on criminals, and that unless the judiciary developed a comprehensive theory of sentencing, sentencing discretion would be removed from the courts’ hands.”1
About half-dozen years ago, I was involved in youth court situation in which the lawyer of the perpetrator made extra emphasis on both parents showing up at all court appearances. Apparently, the presence of parents made a difference in the result of the case. Though skeptical that it should matter, I have read of other reports that make the same assertion. Though I understanding the practicable reasoning (parental investment equates to lower recidivism rates); I cannot help think that this practice lends to the general attitude, especially amongst those not so fortunate with attentive parents; of inequality of treatment and thus perception of injustice from the supposed founts of national justice. I even gave casual thought of starting up a sideline “rent-a-parent” business for those yobs whose parents were negligent. For, is it the child’s fault; that his parents are what they are; in receiving a harsher penalty?
The lawyers and judges may clamour for exceptions in order rectify specific situations and administer justice in the particular. However, because the wide inexplicable latitude in discretion leads to a general contempt of the judiciary and the law; a perception that the courts are a crap shoot; something that those attentive to the comings and goings of the courts are prone to feel; the administering of justice in the general outweighs the administering of justice in the particular.
Thank you for giving ear to my concerns.
1. Honourable Justice Dean Mildren RFD, Discretion in Sentencing, Judicial Conference of Australia, April 2001,