Without blinking, federal Minister of Justice Vic Toews last week condemned a Supreme Court of Canada decision for erring on the side of leniency.
The Supremes had ruled that the primary goal underlying the sentencing of young offenders was rehabilitation and re-integration. And now the Minister wants to review the 2003 Youth Criminal Justice Act to ensure that youth court judges can mete out harsh sentences in the name of general deterrence.
But whether we're looking at young or adult offenders, there is no way of knowing if and when a sentence is harsh enough to act as a deterrent and to adequately denounce the gravity of the crime.
Last week, for example, Charles Guité, a central player in the Liberal sponsorship scandal, was sentenced to three and a half years in prison. Within the same few days, a Brampton resident, Ronald Schulz, was sentenced to five years for plotting to kill his estranged wife. Are these sentences appropriate to the crimes?
Is a breach of trust by a government official more or less serious than a conspiracy to commit murder? Will these punishments deter others? Did the offenders get what they deserve?
Who the hell knows?
I always found it odd that we can conduct trials that last weeks or months, yet when it comes to sentencing, the whole exercise is done in minutes or hours. Sentencing is treated like an afterthought. We only bother to be so meticulous at trial to make sure that we end up punishing the right person.
The Criminal Code provides little guidance. It gives sentencing judges enormous discretion when it comes to the length of imprisonment, and it provides a limited array of non-custodial sentencing options. That's why we rush through the sentencing hearing: we really don't know what we are doing, so the less time spent dwelling on it, the better the chance our incompetence won't be exposed.
Whatever happened to our unique and perverse human ingenuity when it comes to inflicting punishment? We're the same species that invented the bastinado, the cross, the garotte, the guillotine, the stocks and the stake. We impaled, beheaded and disembowelled. As Nietzsche pointed out, "In great punishment there is so much that is festive."
Fortunately, we no longer associate the festive with the barbaric, but in the civilizing process we also lost all creativity when it comes to punishment. Everything is now grey - out of sight, out of mind. There is no human face to punishment any more. We just pick a number of years to incarcerate, seemingly at random, and say goodbye.
Contrary to the opinion of many in this country who see prison as a country club with conjugal visits and personal computers in the cells, I do consider a prison sentence a harsh, punitive response to crime. The problem is, we have never developed a rational and consistent approach for determining how long it should last.
Look at this difficult case from the mid 1990s. A Vancouver mother was charged with murder in the death of her young son. The accused was an alcoholic who had suffered physical, mental and sexual abuse. She also suffered from significant intellectual deficits.
Her child was hyperactive, and she often covered his mouth to muffle his screaming. She was afraid of being evicted. Beyond this, she started to beat her child. One time the restraint and the covering of the mouth led to suffocation.
I found this to be a troubling case, as the crime was grave but the offender's circumstances were sympathetic. So, as in most cases, the prosecutor and defence tried to negotiate a plea to avoid the unpredictability of a judge exercising discretion.
It was agreed that the mother would plead guilty to the lesser offence of manslaughter and the Crown and defence would make a joint submission recommending a sentence of 18 months' incarceration followed by three years' probation.
The trial judge was not impressed, and he imposed a 10-year prison sentence followed by 3 years' probation. Eighteen months to 10 years may be the Olympic record for jumping a joint submission. The sentence was appealed, and the Court of Appeal awarded a four-year sentence, no probation.
So what is the fit and appropriate sentence? Eighteen months, four years or 10 years? A group of legal professionals all look at the same facts and all arrive at different conclusions. We just pull numbers out of the air like rabbits from a hat. So lawyers and judges turn to plea bargaining in order to introduce some order and certainty into the process. This just muddies the waters and skews the sentencing ranges by making them contingent upon the bargaining power of your lawyer.
There are some simple steps that could be taken to make sense of this solemn act of punishing, and the first would be to get rid of far-ranging maximum sentences. These bear no relation to sentencing practice.
The maximum life sentence for robbery, conspiracy to commit murder or breaking into a home makes no sense when almost all sentences for these offences come in at less than 10 years. Narrow the range, reduce sentencing discretion and make the prison term fit the crime.
Beyond fairly specific prison terms to cover serious predatory crimes, the next step is to create a range of creative community sanctions for all other criminals who will not spread fear if left to be punished in the community.
Why send property offenders to prison. Why punish with incarceration? Prisons just breed crime. Prisons manufacture criminals. We should only use it when we have to consider incapacitation of the dangerous.
It is better to sentence a man like Charles Guité to 10 years of cleaning toilets on Parliament Hill than to waste a prison cell on foolish, corrupt and greedy criminals who pose no immediate threat.
Lawmakers must make clear decisions about which crimes are presumptively going to be punished by prison and which should be dealt with through community sanctions. Let the vandal fix the windows, let the thief deliver food to the poor, and reserve prison for the predatory and incorrigible criminal.
I'm not saying our judges never get it right under the current sentencing regime. I'm saying there is nothing to get right, since under the current regime everything is pretty much arbitrary, random and lacking in any sense of "festivity' or creativity.