|
BLACK-SHEEP COMMENTARIES APPELLATE COURTS DESERVE PUBLIC SCRUTINY Deterrence Used to Count CASTE-LIKE, our court system is gripped by ascending degrees of rank, social status and prestige. At a magistrates’ conference in 1963, quick-witted speaker M. L. Tyrwhitt-Drake, a judge of the county court, put perspective into judicial casteism. “You, gentleman, in the eyes of the law, of course, are definitely not to be trusted to do the right thing. I might do it; but just in case (I don’t) there are several others whose commissions imply even more wisdom and learning than mine to see that justice prevails. “The magistrate, it is said, is the Court of initial approximation; now I am the Court of intermediate conjecture, and beyond me, far off in the heavens of points of law, lie the Courts of final error. “Lord Asquith put it perhaps rather better when he defined the function of the Court of first instance to be quick, courteous, and wrong. That is not to say that the Court of Appeal should be slow, rude, and right, for that would ignore the existence of the House of Lords.” In times gone by the lowest caste was made up of lay magistrates, disdainfully labeled “inferior.” Decent men, hunkered down in dingy courtrooms, too often derisively referred to as the local “beaks,” manipulated and coerced by spell-binding criminal lawyers. However things began to change in the aftermath of the Second World War as a growing number of lawyers accepted appointment to the magistracy. Finally, in 1967, lay magistrates were replaced by a unified corps of judges drawn exclusively from practicing lawyers. The caste system adjusted to the change in a predictably fatuous manner: goodbye, inferior lay magistrates; hello inferior provincial court judges – business as usual. One step up from provincial court judges was another brown-bag group: federally appointed county court judges. Neither inferior nor superior, hamstrung by limited civil and criminal jurisdiction, they were obliged to wear blue rather than royal red trim on their judicial robes as a constant reminder that they had been sidetracked while other supplicants holding more sizeable political IOU’s were fast-tracked to superior court. In the 1990’s county court was mercifully put down and its survivors were eased onto the superior court bench. “His (Lowly) Honour” in blue became “His Lordship” in red. And so we come to judges of an acceptable caste, real judges, trial judges of the superior courts, energized by their own self-importance and the effervescence of their inherent, unlimited jurisdiction and independence. Yet they pine, silently and patiently, for only one thing: elevation to an exclusive judicial caste limited to fifteen members (and a few supernumerary helpers), all endowed with leading-edge frontal lobes – ta-dah! – judges of the British Columbia Court of Appeal. An appointment to the court of appeal is the ultimate moment in the life of a dedicated lawyer or sitting trial judge. He/she joins a tight-knit group of fifteen judges working on panels of three (and occasionally five) members hearing appeals of judgments in civil and criminal cases. Provincial appellate courts, for all practical purposes the courts of last resort, are vital linchpins in the wheel of criminal justice. It is high time for right-minded people to bring intense public scrutiny of this faceless coterie of jurists. We need a reckoning of the courts performance, to ascertain whether there has been a generational change and shift of purpose in the appellate court that foreshadows an unwillingness to deal head-on with rising crime. During the 1970s, 80s and 90s, while I was a judge in provincial court at 222 Main Street, I watched the festering sore of Vancouver’s Skid Road spin out of control. While prostitutes were being killed by one or more serial murderers, and while Vancouver was becoming the drug/robbery/ property-crime capital of Canada, the court of appeal seemed to be increasingly concerned with dampening down sentences to keep trial judges within it’s rigidly enforced guidelines, emphasizing, almost to the point of obsession and with abstract or academic detachment, so-called rehabilitative and restorative justice. British Columbia’s fifteen appellate judges have an absolute constitutional duty as an independent branch of government to meet the rising threat of adult and youth crime with deterrent sentences, delivered with the force and meaning of non-academic language. That is the way it was in the days of Angelo Branca, one of province’s finest lawyers, who was appointed to the British Columbia Court of Appeal in January 1966. At his swearing in he told the assembly “This appointment is the realization of an ambition that goes back to the day of my call to the bar.” Though Branca proved to be a frequent dissenter, a Sun profile said of him, “During his period on the appeal court bench Justice Branca was often the strong liberal voice. His decisions also reflected a desire to uphold the laws that helped maintain an orderly, conventional society.” In Regina v. Gunn and Ponak, a notorious case of trafficking in heroin, Branca wrote the main judgment, saying “These traffickers know that very few addicts are able to climb back to the sanity of non-addiction, and they know that their profits are reaped from an ever widening number of human wrecks. … They have played for big stakes in a very dangerous business. The penalty must be equally imposing.” Branca increased a 15-year sentence imposed by the trial judge to life imprisonment. In 1968, Branca, along with justice Alexander B. Roberston, concurred with the judgement of justice Charles Tysoe in the case of Regina v. Adelman. It was a decision dealing with the rising incidence of possession of marijuana and specifically with self-indulgent scofflaws who lived by the creed that laws which infringed on their self-proclaimed unrestrained freedom were to be disobeyed. Several months before the appeal in Adelman, the chief justice of the court of appeal addressed a conference of county court judges and reminded them that the “primary purpose of sentencing is through punishment to control the incidence of crime. The sole purpose of judges and magistrates is to act in the public interest. … in two ways: by punishment that will deter others; or a sentence that will promote rehabilitation. Where the incidence of a particular type of crime has become so great that the court must punish it severely in order to assist in bringing it under control, rehabilitation becomes secondary.” Justice Tysoe endorsed the views of his chief justice and in precise language set aside consideration of rehabilitation for those who, out of self-interest, choose to flaunt the law: “There is no question of rehabilitation here. This respondent does not require to be rehabilitated. His need is a change of attitude that rests with himself.” If today’s appellate judges continue to be too academically distracted to dispense justice in the manner of their predecessors, then Shakespeare’s truth in Measure for Measure will be upon them, as ought to be a firestorm of public criticism. We must not make a scarecrow of the law, And let it keep one shape, till custom make it Wallace G Craig – wallace-gilby-craig@realjustice.ca – NS News – Jan 18, 07 |
|
|
