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Lecture 2- May 9.docx

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University of Toronto Mississauga
Nicole Myers

Lecture 2: May 9, 2013 The Philosophy of Sentencing and Sentencing Principles Judicial Independence  Fundamental to justice under law  Embedded in constitution act of 1867 o Shall hold office during good behaviour and be removable by the Governor General on Address of the Senate and House of Commons o Since 1971 this role has been played by Canadian judicial counsel (their power is only to recommend that someone is kicked off but they don’t impose this)  Less than 10 judges actually been kicked out since 1971  Reluctance; Canadian judicial counsel exercise their powers in limited way  Security of tenure, financial security, and administrative independence o Security of tenure- judge eligible to serve on bench until they are retired once they are appointed; if they are confident they have job security, they don’t have to worry about imposing sentences that may not be favoured by the mass  Need independence to make unpopular decisions that are consistent with the law and the Charter  i.e. judges that decides that we should be able to have same-sex marriage (unpopular decision but it was made due to equality under the Charter) o financial security- justifications for the salary; paid sufficiently so they are not dependent on other forms of making money (i.e. bribes, specially for defense councils who are generally wealthy) **reducing temptation that can lead to corruption** o administrative independence- no one can interfere with how court manages litigation process  i.e. cannot control which judge hears what case (assignment of cases)  chief judge makes this decision  Impartiality- judges have to make decisions based on the law, facts and evidence in court o Free from outside pressure/influence o Not to be making decisions based on own personal opinion o Prohibitions around what judges are and not allowed to do to maintain impression of impartiality  Judges not allowed to discuss decisions they make (i.e. cannot be interviewed by media)  Prohibited from expressing personal opinion about any major social issues; concern is that this may lead to perceptions of bias  Sentencing disparity- jurisdictional variations in Canada between judges who come up with different decisions, weigh different factors in different ways o Particularly well known among lawyers (the reason “judge shopping” is prohibited); also the reason why courts are sometimes adjourned in hope that you get a “better” or more lenient judge the second time around  Judges must be independent so they are not influenced by external sources that can affect their sentence How do you determine or measure bias? Should claims of judicial independence include the ability to set their own salary? Drunk Driving Causing Death  **media is largely the place that people get their ideas about sentencing  i.e. case of Jack Tobin (son of former Newfoundland premier) who killed his friend intoxicated o sentenced to three years in prison and 7 year driving ban once his sentence Is done o judge took into account his remorse, his decision to plead guilty and forgo a trial  also considered his previous behaviour **was the judge bias because the father of the accused was in a politically powerful position? Accessing Child Pornography (look at lecture slide #14)  case of Adriano Benigno- pleaded guilty to accessing child pornography and sentenced to 6 months in jail, probation f or 18 months after his release from custody o also must be registered on list of sexual offender registry  he was a teacher by profession o lost his teaching license after being found guilty o public grievously to think that a man trusted with educating youth would do this  no prior criminal record Public Attitudes to Sentencing in Canada  stability in public attitudes towards sentencing severity o 74% too lenient o 23% about right o 2% too strict/punitive **could be a result of limited options (in terms of number of boxes) that are provided in survey research  Belief that judicial leniency is responsible for crime o Idea if we don’t sentence people harshly, we will have more crime o Somehow sentences related to crime; idea that criminal justice system is good at preventing crime by sentencing offenders  CJS regarded as preventative mechanism, rather than a responsive mechanism  Public dissatisfied with sentences but with sentiment does not hold for the courts as a whole o Courts are okay but sentencing is the problem for the public s Purpose of Sentencing  84% rated making offenders acknowledge responsibility as ‘very important’ o Highest level of support for most restorative sentencing objectives  66% rated reparation as ‘very important’  40% rated denunciation and incapacitation as ‘very important’ **complexity around public opinion of sentencing; this is not consistent with idea that we should punish more harshly to deter crime** (logical disconnect in public opinion) Most important sentencing objective (lecture slide 17)  Primarily concerned with offenders taking responsibility rather than deterring Summary  Judiciary is effectively a self-regulating body (part of being independent)  Media representations of sentencing decisions provide public with little context or information about sentencing process o Media plays a role in perpetuating a misperception  Public sentiment is complex o Simple questions only leads to simple answers o More context or information about the case, they are more likely to think that the judge sentenced in a proportionate manner Philosophy of Sentencing and Sentencing Principles – What are we trying to achieve through sentencing?  Type of offence? i.e. violent vs. administration of justice offence  Does it change depending on
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