OldSolduer
Army.ca Relic
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Halifax Tar said:Do we have a justice system anymore ? Or is there a better name ?
Yes - it is the Legal Industry. I'm sure some will take offence at that.
Halifax Tar said:Do we have a justice system anymore ? Or is there a better name ?
Hamish Seggie said:Yes - it is the Legal Industry. I'm sure some will take offence at that.
daftandbarmy said:Except that it's easy to get that 'death penalty thing' wrong pretty frequently, it seems:
A variety of individuals are claimed to have been innocent victims of the death penalty. Newly available DNA evidence has allowed the exoneration and release of more than 20 death row inmates since 1992 in the United States, but DNA evidence is available in only a fraction of capital cases. Others have been released on the basis of weak cases against them, sometimes involving prosecutorial misconduct; resulting in acquittal at retrial, charges dropped, or innocence-based pardons. The Death Penalty Information Center (U.S.) has published a list of 10 inmates "executed but possibly innocent".
https://en.wikipedia.org/wiki/Wrongful_execution#:~:text=A%20variety%20of%20individuals%20are,a%20fraction%20of%20capital%20cases.
Brad Sallows said:>These judges are getting it wrong.
Yes. Sometimes judges (and juries) get it wrong. How would you propose to compensate innocent people wrongly convicted and executed?
Eaglelord17 said:Ok and the USA is a completely different country with completely different laws and more importantly biases. The fact that we have DNA evidence now, coupled with the staggering amount of information we can gather from videos, phones, etc., is even more in favour of having the death penalty. If you are willing to lock someone up for the rest of their lives you can put them to death. It is essentially the same thing to me. Especially in cases like this one which is very clear who the offender is and what they have done.
How do you compensate completely innocent people currently wrongfully convicted who were forced to spend the rest of their lives in jail and died in prison? It is the same thing. Maybe we shouldn't convict anyone for the slight chance they could be completely innocent.
YZT580 said:... The problem lies with our court system that has created an environment where an individual's personal rights and freedoms trump that of society as a whole and changing that is not possible without re-writing the constitution with regards to the role of the court. Interestingly enough in this case the court recognized its own overreaching authority and provided for the government to re-work the law to ensure that the desired goals of protecting society and identifying an individual who had indeed forfeited his right to ever exist again in society was achieved.
YZT580 said:Sorry FJAG but the intent was not to identify activist judges, hence the reference to their own care in drafting the decision but to in that case point out that they correctly identified an error in law whereby they were forced to rule against the intent of the law even though they saw the necessity for that law to exist. I believe though that it is the courts that initially decided that incarcerating a person beyond 25 years was cruel and unusual even though the alternative that it replaced was the death penalty. That was and remains an activist decision and is only an interpretation defining what they believed was cruel and unusual. The rest of us did not feel the same way at the time.
YZT580 said:The definition of a life sentence, if I recall correctly, is 25 years. It was determined by the supreme court that anything beyond that was cruel and unusual. Now that was many years ago and that was the activist ruling to which I was referring. The conservatives and again I am going from memory, wanted to ensure that a Paul Bernardo could be sentenced beyond 25 years so they instituted consecutive sentences which were never imposed before: we had people serving concurrent sentences which were not the same thing at all as they all expired at the same time. Now I am definitely not a legal type but if the court ruled against devising an in-between parole eligibility does that mean if the court were to reconvene and rule that the parole eligibility was 50 years they would have accepted it and rejected the appeal?
FJAG said:...As to your question, I'm not sure exactly what you are asking but here goes.
The court cannot reconvene on this case. The Court of Appeal has spoken and therefore as it stands, the accused will currently have a parole eligibility of 25 years unless the SCC changes that on further appeal. For all other trial courts in Quebec, they're bound by this ruling and, therefore, limited to giving concurrent sentences for multiple murders.
In all other provinces, the ruling in Quebec will have some weight but it is not binding and their Appeal Courts are free to decide the matter differently if they consider it appropriate. For example let's assume a man guilty of two murders might be sentenced by a judge in Ontario to two consecutive sentences of life with parole ineligibility set at 50 years. The Court of Appeal in Ontario would then not have to deal with the technical issue that the Quebec court faced (because the full 25 year multiple was used) but would be left to deal solely with the issue of whether or not the law as written infringed ss 7 and/or 13 of the Charter. The circumstances of the crime would certainly play a role in that determination. Conceivably the Ontario Court of Appeal could very well uphold the sentence. That obviously creates a discord in the law from province to province until such time as the Supreme Court weighs in on it. (Incidentally it is not unusual that there are sometimes differences of application of a given law between provinces. Sometimes it takes quite a while for the Supreme Court to adjudicate the issue).
Hope that answers your question.
:cheers:
Good2Golf said:A couple of questions, not to you specifically FJAG if you don’t think it fits, but more generically to the question of inconsistency between legislation and the Charter.
Should not any legislation approved by parliament align with or support the Charter?
Was this a case of timing, with the Charter superseding the legislation (I don’t think so, but perhaps?) this leading to conflicts needing to be resolved by courts where legislative/Charter conflict is argued and left to be addressed by that jurisdiction’s court (be it provincial or federal)?
I would think that any legislation drafted, approved and enacted post-Charter should be consistency-checked, no? Why would uncertainty be left in the legislative wording such that it would be understood that clarification would be required later by the courts? ???
Is it too much to ask of our Parliament to enact legislation correctly and in a manner that reinforces, not counters or conflicts with the Charter, or that if there is ‘flex’/discretion deliberately put into legislation, that the reasoning and guidelines for its use is such that there would be consistent application of that discretion?
Regards
G2G
Good2Golf said:A couple of questions, not to you specifically FJAG if you don’t think it fits, but more generically to the question of inconsistency between legislation and the Charter.
Should not any legislation approved by parliament align with or support the Charter?
Was this a case of timing, with the Charter superseding the legislation (I don’t think so, but perhaps?) this leading to conflicts needing to be resolved by courts where legislative/Charter conflict is argued and left to be addressed by that jurisdiction’s court (be it provincial or federal)?
I would think that any legislation drafted, approved and enacted post-Charter should be consistency-checked, no? Why would uncertainty be left in the legislative wording such that it would be understood that clarification would be required later by the courts? ???
Is it too much to ask of our Parliament to enact legislation correctly and in a manner that reinforces, not counters or conflicts with the Charter, or that if there is ‘flex’/discretion deliberately put into legislation, that the reasoning and guidelines for its use is such that there would be consistent application of that discretion?
Regards
G2G
lenaitch said:As far as am aware, every Bill, before it is presented to the House, goes through a Charter analysis by DoJ legal staff and I believe its report accompanies the Bill on its journey. Obviously, it is just a legal opinion and the courts may take a different view - and often do. And, as Dataperson mentions, the elected government is free to ignore the advice.
Mr. Brian Murphy: In answer to one of Mr. Dechert's questions, you said to make it comply with the charter. I didn't quite get the full answer on that. I assume, then, that there was a full review of this legislation for charter compliance.
Mr. John Giokas: We always review legislation for charter compliance. It's a legal requirement on the minister.
Mr. Brian Murphy: But what specifically was done to make this proposal charter compliant? In your answer to Mr. Dechert, I'm not sure I was clear on that.
Mr. John Giokas: I'm not able to divulge--for obvious reasons--legal advice provided to the minister. What I can say is that it is our belief, based on advice that has been provided to the minister, that this legislation is charter compliant.
Senator Baker: That is exactly what would be in the indictment and the information.
I have to ask you this question because it is normal for us to ask one regarding the Charter of Rights and Freedoms and Bill C-48. I ask you the question, keeping in mind that the Supreme Court of Canada passed a judgment called R. v. Luxton. In that decision, the Supreme Court of Canada said that the 25 years of ineligibility for parole in a first- degree murder charge is constitutional and does not violate section 7 or section 12 of the Constitution — fundamental justice or cruel and unusual punishment.
However, in the judgment given by Justice Lamer and supported by Justice Sopinka, at paragraphs 9 and 12, the Supreme Court of Canada said:
s. 672 of the Code provides that after serving 15 years the offender can apply to the Chief Justice in the province for a reduction in the number of years of imprisonment without eligibility for parole having regard for the character of the applicant, his conduct while serving the sentence, the nature of the offence for which he was convicted and any other matters that are relevant in the circumstances. This indicates that even in the cases of our most serious offenders, Parliament has provided for some sensitivity to the individual circumstances of each case when it comes to sentencing.
That same reasoning was used to also say that section 12 of the Charter was not violated.
Without the faint hope clause and the possibility of having 25, 50 or 75 years, on what basis then do you or your department come to the determination that Bill C-48 does not violate the Charter?
Mr. Nicholson: Ultimately, it is discretionary. On that basis, I am quite sure that it will stand the test of constitutionality.
Senator Baker: Thank you.
Mr. Brian Murphy (Moncton—Riverview—Dieppe, Lib.): . . . Second, would we not be better off if we gave the judge a little more discretion on the number of years? In other words, a judge might look at those two instances and consider 25 years. He might be on the borderline as to whether he wants to go 50 years. He might very easily say 35, but we have this choice between the second-degree 10 and the first-degree 25. . . .
Mr. John Giokas: Let me deal with the second comment first. The Criminal Code already states in section 745 that in the case of a first-degree murder, it's a mandatory 25 years, and if somebody commits another first-degree murder, it's a mandatory 25 years, and so on.
The issue right now is that those 25 years are served concurrently. What we're doing in the case of first-degree murder is giving the judge the discretion to make the mandatory periods of 25 years consecutive. This is already set out in the code. It's also set out in section 745 that in the case of a second-degree murder, where somebody has already been convicted of another murder, whether it's first or second degree, it is also an automatic 25 years.
So the 25-year period is already established in the Criminal Code. All Bill C-48 does is allow a judge to make the periods consecutive, based on criteria that judges are already using to make a decision that is similar in kind, namely, whether to extend a minimum 10-year sentence to 25 years in the case of a single second-degree murder.
Senator Boisvenu: . . .
I know that Mr. Murphy, I believe, asked for an amendment in the House of Commons, which would leave judges some discretion in the case of a second murder, to establish the possibility of parole after 25 years, instead of applying the 25-25.
In your view, Mr. Minister, how important is it to maintain the bill in its entirety without diluting its fundamental position on consecutive sentences?
Mr. Nicholson: I believe that possible amendment goes to the very heart of what this bill is trying to correct, namely, that you should not have a discount in this country. You should not have a lesser sentence because you have been in the business of killing other people. The idea that somehow you should receive a lesser sentence because this is your second, third or fourth murder victim goes against the concept of moral blameworthiness I talked about in my opening remarks. That is on the side of the individual who has done that.
In terms of the victims, it is intolerable and unacceptable that there be no consequences whatsoever for the individual convicted of second, third or fourth murders. We do not want to get back into this business and say, ``Well, it was only a second murder. Therefore, your additional parole ineligibility will only be a few or 10 years additional.''
I think that goes against the very heart or rationale of this bill and should be rejected.