POLS 3300 Chapter 9: Readings/Articles for Week 9

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Week 9
Supreme Court urged to overhaul sentencing philosophy by Kirk Makin,
The Globe and Mail, 2010:
Alberta panel criticizes judges for failure to hand out predictable punishments untainted by
personal views:
Wide disparities in sentences are precipitating a crisis of confidence in the justice system,
Alberta’s top court has warned in a call aimed at the entire judiciary
In a ruling designed to prod the Supreme Court of Canada into revamping sentencing
philosophies, a five-judge Alberta Court of Appeal panel said that trial judges must be
restrained from injecting their personal views and predilections into the sentencing process
They warned that, unless the judiciary gets its own house in order and fashions a predictable
regime of minimum sentences, politicians will step up in and do it for them
The majority comprised of Chief Justice Catherine Fraser, Mr. Justice Jean Cote and Mr.
Justice Jack Watson went so far as to issue an invitation to Parliament to “consider its
options” if the judiciary fails to create rational, proportionate and predictable sentences
“Parliament did not intend sentencing to be an unguided missile,” the 3-2 majority said;
“Public confidence is eroded when the requirements of legality are not apparent in a criminal
sentence”
The court’s warning is bound to be seized upon by the Harper government as fuel for its long-
running campaign in favour of mandatory minimum sentences and so-called “truth in
sentencing”
The court was considering a case involving a lenient rape sentence be given to an aboriginal
man who raped a sleeping friend they pointed to it as being a classic example of a judge’s
personal leanings causing an unacceptably absurd result
The defendant at the heart of the ruling, Jordan Arcand, raped a friend after she slipped into
an alcohol-induced stupor the Alberta Court of Appeal lashed out at a 90-day sexual
assault sentence give to Mr. Arcand by Alberta Court of Queen’s Bench Judge P.L. Adilman
It said that Judge Adilman represents far too many judges who mete out rape sentences
based on outdated myths and stereotypes it listed these as being an antiquated notion that
rape by a stranger is more devastating than rape by a friend or relative; that men who commit
rape are merely gave way to temptation; and a fallacious belief that a woman’s personal
habits or comportment can invite rape
“’No real harm done,’ seems to be the assumption,” the Court of Appeal judges said “this
could not be more wrong. Major sexual assaults are to be sentenced for the serious crimes
they are”
The Court said that local judges cannot be permitted to “invent” their own sentencing
regimes, nor is sentencing, “the gift of individual judges, to be dispensed or withheld in
accordance with personal predilections, preferences or philosophies”
“Widespread disparities in sentencing, untethered to valid distinctions between cases, cause
serious problems for the criminal justice system and understandably so,” it said
The majority noted that appeal courts have been embarrassingly slow to rein in trial judges
they said the vast sentencing discretion currently enjoyed by trial judges, “makes the search
for just sanctions at best a lottery, and at worse, a myth”
Allowing judges to impose differing sentences inevitably causes prosecutors and defence
lawyers to “judge shop” for jurists they hope will impose the sort of sentence they are
seeking, the court added: “Judge shopping is alive and well in Canada and fighting hard to
stay that way,” it said
Queen’s University law professor Allan Manson, a sentencing expert, said that the Arcand
decision directly challenges the Supreme Court to review sentencing procedures and
endorse the use of what are, in effect, minimum sentences for each category of offence
“Sentencing is in chaos at the moment,” said Prof. Manson “how much can the Supreme
Court of Canada contribute to that debate? I guess we are going to find out”
Prof. Manson said that Canadian sentencing practices are hobbled by philosophical
underpinnings that are confusing, trial judges who lack guidance and inadequate resources
for offenders whoa re sentenced to treatment or community-based programs
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Week 9
He also cited problematic measures that the Harper government has created
Virtually all developed nations are struggling with balance between judiciary discretion and
predictable sentencing ranges, he added the best solution for Canada would be the
creation of a sentencing commission that can introduce a measure of coherence to
sentencing practices, he said
“We now have a more thoughtful generation of judges who recognize that, at the moment you
are appointed, you don’t suddenly get a g-d-given ability to come up with the right sentence,”
Prof. Manson said
Only England and several U.S. states have any form of sentencing commissions, Prof.
Manson said
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Week 9
Charles Smith’s punishment deemed ‘a slap on the wrist’ – Christie
Blatchford, The Globe and Mail, 2011:
Smith stripped of license and fined, but victims of his ‘expert’ testimonies prefer ex-pathologist
face prison time:
The college of Physicians and Surgeons of Ontario, the governing body for the province’s
doctors, has stripped the former disgraced pathologist of his certificate to practice, fined him
$3,650 in costs, spanked him in the sternest language and summoned him to a formal public
dressing-down next month
If it sounds like punishment on a grand scale, it isn’t
Mr. Smith can’t be compelled to appear for his paddy-whacking, the revocation decision is
effective only in Ontario (however, the rulings are sent to governing bodies across the
country) and after a year, he could even reapply to be certified as a doctor again though he
would bear the onus of showing why
Bill Mullins-Johnson, who wrongly spent 12 years in prison because of the ex-pathologist’s
testimony at his first-degree murder trial, pronounced the college action “a slap on the wrist”
and “a spit in the face of myself and the public of this province
Mr. Mullins-Johnson was one of the 6 people 3 of whom were jailed in large measure
because of Mr. Smith’s ostensibly “expert” evidence who submitted victim-impact
statements to a disciplinary hearing Tuesday held at the college in downtown Toronto
At least 1 other victim, Maria Shepherd, whose conviction in the death of her stepdaughter
has been reopened and who is now seeking exoneration in the Ontario Court of Appeal,
joined Mr. Mullins-Johnson in a call that Mr. Smith face criminal charges
“I would like to see the man face prison,” the 40-year-old mother of 5 told reporters after the
hearing, “and to walk through the halls holding the gear as you become an inmate in
protective custody”
The impact statements speak not only of the terrors of prison, but also of shattered if not
ruined families and the nightmare of being branded as baby killers in the broader community
The hearing came almost 3 years after the release of the so-called Goduge report, a public
inquiry headed by Mr. Justice Stephen Gouge which reviewed Mr. Smith’s 20-year career as
the country’s go-to forensic pathologist despite the fact that he was not one at all, but rather
a pediatric pathologist
Pathology is the study of natural disease in people; pediatric pathology is the study of
disease in children and adolescents
Forensic pathology is the study of suspicious or unnatural death and is where science and
the law often intersect, since the forensic pathologist often performs postmortem
examinations critical to determining whether a death is homicide, accident, or disease and
testifies in court about those findings as an expert witness
Mr. Smith, who admitted to the Goudge inquiry that his forensic training was virtually non-
existent, nonetheless rose to become in 1992 the first head of the Ontario Pediatric Forensic
Pathology Unit based at the Hospital for Sick Children in Toronto
As easy as the year before, when a judge was harshly critical of Mr. Smith’s work and
evidence, alarm bells were beginning to ring around the province about the bespectacled,
gentle-seeming man who saw himself as a lonely advocate for dead youngsters and
sometimes wore cartoon-character ties to court as a reminder, as he once told me, of his
humanity
This lack of neutrality, coupled with his woeful lack of forensic training, was compounded by
Mr. Smith’s sloppiness and failure to complete reports on time, reply to Crown attorneys and
coroners who were increasingly badgering him for answers and by his inability to even keep
track of key evidence
In short, Mr. Smith had a dangerous effect, as the disciplinary committee said in its findings,
upon the administration of justice, particularly upon those who either pleaded guilty (on the
advice of lawyers who correctly feared Mr. Smith’s testimony at trial) or were wrongly
convicted on his say-so
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