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BLACK-SHEEP COMMENTARIES by MAKING PEACE WITH CRIMINALS March 18, 2009 IN his Commentaries on the Laws of England, published in 1765, Oxford professor Sir William Blackstone explained the royal prerogative of Pax Regis/Regina: “It is one of the prerogatives of the Crown to make war and peace” Making peace means enacting and enforcing laws relating to public order to deter predatory criminals from committing acts of violence and property crime. In Blackstone’s time, an indictment charging a felony stated that the offence had been committed “against the peace of our lord the king.” In reality the promised “peace” amounted to keeping a lid on rampant crime with sentences of penal servitude (for life or any lesser period but not less than three years in any designated place) or through imprisonment for up to three years, with hard labour, within the walls of a gaol. That the pendulum of criminal justice had begun to swing away from the harsh treatment of convicts is evidenced by the fact that in 1948, England abolished these punishments and substituted punishment by ordinary imprisonment. You may wonder whether our federal government is obligated to provide Pax Regis/Regina. It is. Our founding constitution, the British North America Act, 1867, enshrined the Queen’s peace in simple language. “Powers of Parliament: Section 91. It shall be lawful for the Queen, by and with the advice and consent of the Senate and House of Commons, to make laws for the peace, order, and good government of Canada,” … These two simple yet important words, peace and order, when placed in their historical context, are the legal DNA of the 1892 Criminal Code of Canada: criminal law very much a codification of English criminal law in which crime and punishment are inextricably linked. The 1892 Criminal Code was subjected to a major revision in 1954. However punishment continued to be a reality facing convicts; whipping of male convicts could be ordered in serious cases of rape, armed burglary, robbery, sexual-intercourse with a girl under 14, indecent assault, drugging with intent, choking and strangling. Preventive detention loomed over habitual criminals. The pendulum of reform would soon end these obvious instances of cruelty. Yet through the 1950s, peace and order continued to be secured by a reasonable likelihood of detection of perpetrators of crime; early and expedited trials; and the certainty of punishment by imprisonment. Everything changed in 1959 when the conservative government under Prime Minister John Diefenbaker enacted the Parole Act. In practical terms it ended Queen’s peace and began the movement away from punishment to the cerebral high ground of rehabilitation. In 1984, in his treatise The Breakdown of the Criminal Justice in Canada, retired judge Les Bewley aptly described the negative consequences of parole. “Yet by the Parole Act and the National Parole Board, the legislative and executive arms (of government) have succeeded in massive fashion in doing through the back door what they are strictly forbidden to do through the front door. Fewer than three per cent of federal prisoner now serve the full sentences impose by the courts. “As a direct result … no trial judge in Canada has any expectation that his sentence will be honoured; the worth of judicial coinage is shamefully debased; the hard and dedicated work of police officers is mocked; and every crook or would-be crook is vastly encouraged to commit even more crimes, and is not deterred, because he knows full well that the court’s sentence – to put it politely- isn’t worth spit.” Once parole was in place, anything-but-punishment reform quickened. Judicial elites, criminologists, and organizations working to improve the conditions for penitentiary inmates persuaded successive federal governments to adopt a sympathetic rather than punitive approach to criminal behaviour: rehabilitation over punishment. By the 1970s, no-nonsense crime-and-punishment criminal justice was put to rest. Its epitaph is memorialized in proceedings of the House of Commons on Oct. 7, 1971, when then federal solicitor-general Jean Pierre Goyer made the disclosure that “From now on, we have decided to stress the rehabilitation of individuals rather than the protection of society.” What we have endured since then is make-believe criminal justice. It is all purposes and principles and no punishment. The general public and victims of crime are lead to believe that each defined crime in our Criminal Code has ingrained in it an inevitable consequence of punishment. The word punishment is not used in the section of the criminal code that states the fundamental purpose of sentencing. It rambles on about the need to contribute to respect for law and maintenance of a just, peaceful and safe society by imposition of just sanctions that denounce, deter, assist in rehabilitating, and promote a sense of responsibility in offenders. To confuse matters, the following section states a fundamental principle that a sentence must at the same time be proportionate to the gravity of the offence and the degree of responsibility of the offender. As I was closing this commentary I stopped for a moment to glance at the Mar.16 Globe & Mail. In their crime section the lead article is headlined “B.C. has become a ‘safe place’ for drug trafficking.” Folks, we have been hoodwinked by our politicians and judges. We lock our doors, bar our windows – jailed as it were – while criminals and gangsters go about with impunity. * * * Published by the North Shore News on March 18, 2008.
Contact Judicial
Gadfly at:
wallace-gilby-craig@realjustice.ca |
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