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BLACK-SHEEP COMMENTARIES CONDITIONAL SENTENCES COUNTERFEIT JUSTICE CONDITIONAL jail sentences are pretend punishment. To illustrate my point, I begin with a parody. Judge: As fitting punishment for your thievery or thuggery – I can’t remember which – I sentence you to 12 months imprisonment to be served in the community under make-believe house arrest. It is my duty to remind you that your home is no longer your castle. Henceforth, by my order, it is a make-believe prison. Old lag: Er – beg your pardon warden – er – your worship – er – do I get time off for good behavior? Judge: No! And I’m ordering you to comply with 20 conditions, the same ones you ignored in your last probation order. Old lag: Er – your highness, if they’re the same then why can’t I have another suspended sentence? Judge: Because! Old lag: Er – your excellency – because why? Judge: Because I don’t know! Let me put this
sentencing in perspective: the “community,” including the convict’s house,
is not a prison; the con will not be confined or shut up behind bars. No
prison guards watching and controlling him, just the constraint of
reporting to and accepting directions from a civilian supervisor. Beyond
that, our lag is expected to stay out of trouble, abstain from drugs and
alcohol and do a little notional community service. In 1996, with much fanfare, Parliament amended the sentencing provisions of the Criminal Code: it was the dawning of the Age of the Conditional Sentence – a variation on the theme of the time-tested “suspended sentence and probation.” However, the enabling sections of the Criminal Code under which judges order probation or supervision contain identical mandatory and optional conditions. Although a conditional sentence walks, talks, and acts like a suspension of passing of sentence, nevertheless judges and lawyers insist it is a dire consequence equivalent to imprisonment. In 2000, the John Howard Society of Alberta published an analysis of the conundrum, saying: …“the conditional sentence provisions are almost indistinguishable from those governing the sentence of probation.” “A conditional sentence is supposed to be a more onerous penalty than probation, but if a probationer and an offender given a conditional sentence both participate in an attendance centre program in which each is under the same degree of surveillance, and given similar programming, the distinction is lost. If the court must first decide that probation is inappropriate …why should it hand down a community-based sentence similar to probation to offenders for whom probation is inappropriate?” Old lag (muttering): The law is an ass. Judge: You old louse, I heard what you said. In my court the law is never “an ass.” Old lag: But – but – your majesty – then maybe you should be blindfolded like the lady-justice statue is blindfolded? A lady-spectator: Can I say something? Judge (resignedly): Why not? Okay Sheriff, bring the lady up front. Lady: I’m his missus. And if I heard you right I’m also his warden. So that means you gotta add one more thing to his house arrest. That he don’t ever sleep with the warden; because for the next 12 months he’s bunkin’ with his mut, Wimp, in the doghouse. Judge (muttering): Good grief, now I’ve heard everything! But hey, for 200 grand a year and perks, I can put up with this guff until I’m seventy. Unconstrained backroom bargaining between Crown and defence counsel producing a conditional sentence that sounds severe and just, when in fact it is counterfeit, will always reek of leniency and resonate with expediency. The unexpected utility of a conditional sentence of imprisonment has made plea-bargaining an even greater blight on criminal justice. When media in British Columbia report that a joint submission has been presented to and accepted by a sentencing judge, alarm bells should go off in your mind. There is a high degree of probability that a so-called “agreed statement of facts,” a critical aspect of the joint submission, may not contain all the circumstances of the crime and full disclosure of the character of the accused. Another troubling aspect is the likelihood that too often a negotiated conditional sentence is being used in cases where the Crown ought to have asked the court to accept a plea to a lesser included offence. An example of this is aggravated assault, a 14-year-maximum offence. It is within the Crown’s discretion to seek a guilty plea to the included offence of assault causing bodily harm – either indictable or summary. This procedure reduces the maximum sentence for an act of violence to 5 years, if indictable, or 18 months, if summary. And it leaves punishment where it belongs, in public and in the hands of the judge. However, there seems to be a growing incidence in British Columbia of flat-out negotiating guilty pleas and rubber-stamp sentences that rarely fit horrific crimes of violence including cases of aggravated assault. In this murky market the judge is the gatekeeper. It ought to be a tense moment when defence and Crown counsel stand before the court speaking the key words “we have a joint submission on sentence” and proffer an “agreed-upon statement of facts,”—usually only bare-bone facts. Every time a judge becomes a participant in this demeaning process it chips away at the independence of the judiciary. It creates an aura of compliance. Too many instances of compliance raise the spectre of unworthiness. A compliant judge is the antithesis of an independent judge. An ongoing North Vancouver case of aggravated assault before Judge Judy Gedye may be instructive. As reported in the North Shore News (Girls Await Stabbing Sentence, March 15), Gedye “has delayed sentencing two young women who violently attacked a stranger in a bar washroom, saying she wants to see professional reports first that would tell her if the two attackers could pose a danger to the public. “On April 17, 2005 Ashley Parry, then 18, and Danielle Sorensen, then 19, attacked Ashley Lindsell in the washroom of the Lynwood Pub in North Vancouver, punching her, pulling her hair and kicking her to the ground. One of the girls then smashed a beer bottle on the counter and stabbed Lindsell in the neck with it. Lindsell, who didn’t know her attackers, was rushed to hospital. “Both Crown and defence counsel asked for conditional sentences of between 18 months and two years to be served under house arrest. “But Gedye said she wasn’t prepared to do that without further assessments, noting the level of aggression in the attack was disturbing.” In perpetrating such a hostile and cold-blooded act of psychopathic violence, these rogue women have demonstrated a degree of moral turpitude and baseness common among today’s male psychos. I say that leniency will teach them nothing and will inflict more cruelty on their victim. If punishment of the two accused is not proportional to the savagery of their unspeakable attack, Ashley Lindsell will be depersonalized and become a faceless, expendable statistic, sacrificed on the alter of pretend punishment and pie-in-the-sky restorative justice. In a few months, Judge Gedye will give her decision. The sentence may be somewhat lenient, it may approach severity, but for sure it won’t be a pro forma rubber-stamping of a plea bargain. Wallace G Craig – wallace-gilby-craig@realjustice.ca – NS News – March 29, 06 |
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