The Judge Superthread- Merged Topics

[zipperhead_cop]

Thank you, Whisky for that excellent (albeit pathetic) sentencing transcript.  And don't forget, if he is sentenced to 18 months, he is actually out of jail in about six.  
But don't worry, he will have probation conditions.  Surely he would not breach a judicial order?   :
Even when this tool gets out and kills someone, he will still get this kind of consideration.

Quote,
I strongly recommend to the correctional officials that Mr. Brown serve his sentence at the Ontario Correctional Institute where he can receive treatment for his drug addiction. 
Oh, yay.....

And by treatment, he of course means "continue to use smuggled narcotics while you are in". 

 

[Gunnar]

You can tell from the way it's worded, that the judge views the whole thing as an intellectual exercise, and isn't terribly concerned about the public or protection thereof.  Lots of strongly worded paragraphs about how he understands what victims may have felt, and he then goes on to propose the lightest possible sentence, citing all the factors taken into consideration.

Drug rehab?  Sure, if the convict wants it.  But let him have plenty of time for recovery...say, 5 years for possession, 10 for pointing a firearm, and whatever is the max for breaching an order of the court in the first place.

I repeat that weapons prohibition orders must have meaning if there is any hope of them having any positive effect.  One way to ensure that they have meaning is to make it clear to any person subject to such an order that if they choose to violate such an order, that choice will attract serious consequences. 

How right he is.  Wonder when he will act on it?  18 mo., 18 mo. plus 6 mo, oh yes, and renewing the useless weapons prohibition order.  So he gets a year off having to work, and gets out just in time to take up his crack lifestyle for Christmas....

No contempt of court charge?  And he wonders why nobody charged him with "breaching recognizance", a piddly damn charge if I ever saw one....One would think that weapons offences would obviate the need to charge for breaching recognizance....

 

[North Star]

Gunnar - Judges aren't selected based on their ability to take the protection of the public into account. They're trained originally as lawyers to look at "legal" logic and not at what it actually takes to protect anyone. They then use this logic to determine sentences, using principles such as detererence, etc.

So, what we end up with are over-paid technocrats who don't care about society at large unless it fits into a personal political agenda.

Now, if we paid them just enough to live closer to the consequences of their sentencing...

 

[Gunnar]

They're trained originally as lawyers to look at "legal" logic and not at what it actually takes to protect anyone. They then use this logic to determine sentences, using principles such as detererence, etc.

I am aware of this...however, "Ignorantia non excusat", to borrow a legal term.

It's like the scientists who use their knowledge of applied biology to create deadly viruses for dictators...sure, it's only an intellectual exercise to them in the short term.  Yet they should still be held accountable for bad decisions.  I was only following orders isn't much of an excuse for any professional, and your ability to divorce your personal feelings from analysis, while laudable for proper performance of a job, doesn't change your responsibilities as a human being.  In other words, limiting yourself to the letter of the law ignores the spirit of the law, that is, the protection of society.  Why is mens rea only relevant to people who commit crimes, and not those who make judgements based on the law?

Militarily, there is a long list of successes attributable to auftstragtaktik, the ability to make decisions in the field that will accomplish the objective laid down by command in the absence of (or in contravention of the letter of) clear orders and/or in a changing situation.  This kind of thinking is applicable to judges as well...they aren't making policy in little rooms somewhere, they are in the field making real-life decisions.  Let them take some responsibility for their actions, and make decisions based not only on the law, but also on justice.  Cops already do this.  It's called a judgement call.  Shouldn't those responsible for *judging*, make more of them?

My disagreements with Zip in the past have been along ideological lines, because I don't see practical alternatives to the problem.  I don't think electing judges will help this situation, when most of the public is uninformed sheep.  Keeping in mind that statistically, half of the population is below average intelligence, and still have the right to vote...and will do so based on their poor understanding of the principles involved (or the colour of the judge's/politician's tie).

I'd like to quote Pournelle's Iron Law of Bureacracy here too...as I ramble.  It is his belief (www.jerrypournelle.com)that in any organization, there are two kinds of people:  those who work to further the goals of the organization, and those who work for the organization itself.  The second type invariably take over the organization, to the detriment of the first.  Examples would include teachers unions, government departments of any type and large corporations.  The paperwork, or the employee rights, or the work hierarchy all come before the stated objectives of the organization, i.e., education, serving the public, making money.

Solve the Iron Law problem, and apply it to the legal profession....and everywhere else.

 

[aluc]

http://www.torontosun.com/News/TorontoAndGTA/2006/08/31/1788660-sun.html




Thu, August 31, 2006
Victims live in fear while an attacker walks
Here’s how it goes down when the justice system puts victim’s rights last

By MIKE STROBEL


Elsa Ferraro, whose son was stabbed by a neighbour, is grateful to locksmith Carmine Panaro, left, of Reilly Locks, and Door Doctor Jay Robitaille, who boosted the security at her home yesterday. The mentally unstable neighbour was freed by a judge just 16 weeks after her 16-year-old son almost died. (Ernest Doroszuk, Sun)

Let me take you inside a Newmarket court for a lesson in victim's rights.

Her Majesty the Queen versus Peter Galanos.

Mr. Justice William Gorewich presiding.

The Aug. 14 transcript is 35 pages and full of stops and stutters, so I doubt the matter takes more than an hour.

Then Galanos, 32, is freed to return home, across the street from the boy he knifed nearly to death 16 weeks before.

Galanos believed Nicolas Lastoria was a witch.

Court learns this after the psych report is finally tracked down. Someone checks the cells to see if Galanos has it.

Finally it is scanned by Gorewich, defence lawyer Stephen Labow and Norm Chorney, a summer fill-in Crown.

Galanos is paranoid schizophrenic. How risky is he? The shrinks' report surely says, but there is little mention in court.

Except ...

"Well," pipes up Chorney, "it's a bit of a worry, more than a bit of a worry, in that the report says while he's currently free of his symptoms on medication, his history of compliance is poor ..."

The judge interrupts to discuss how to declare Galanos "not criminally responsible."

Chorney tries again.

"In view of his past history of poor compliance, I would think the public has to be protected to the maximum extent possible from his failure to take his medication ... and from his possible abuse of alcohol and street drugs."

No one says it, but I know from court records that this refers to a road rage incident in 2000.

Galanos was convicted of dangerous driving. A weapons charge was dropped.

I wish someone mentioned this on Aug. 14.

Or how young Nicolas was when he was attacked (two weeks shy of 16), how awful his wounds, how shocked his family.

Chorney is mum on that. The judge can keep Galanos in a psych ward at least until the Ontario Review Board has a look at him. (A hearing has since been set for Sept. 20.)

But the notion doesn't even come up.

Alas, Nicolas and his mom, paramedic Elsa Ferraro, are unaware that a verdict is being rendered. So, even, are the cops.

Much is said on Peter Galanos' behalf, though.

A model patient, his lawyer reports. Loving parents.

Chorney agrees to a "not criminally responsible" verdict and release on conditions.

The judge gives Galanos a month to arrange regular dates with a psychiatrist.

Take your meds. No weapons. Stay away from the victim.

"We might as well go whole hog here," adds the judge, so no booze, no narcotics.

All this is covered by a peace bond until a permanent order can be written. The surety? One hundred bucks.

The deal is done 'til Nadine Prince, from the Victim Witness Office, rushes in.

What's the problem, wonders the judge.

Prince says she is here only because the lead investigator, York Regional Det. Const. Stu Betts, chanced to see the verdict pop up on his screen.

(It is remarkable that Betts was not forewarned. He knows every nuance of the case. What was the Crown thinking?)

Nicolas' family should have been here, Prince tells court.

"Well, that's all very well and good," says Gorewich, "but you know the issue is, and the Criminal Code says, that you have to deal with these cases in the least onerous fashion to the accused ...

"Do we simply keep him in custody indefinitely?"

What about the impact statement? It's a victim's right.

"Well, with great respect ... (it) wouldn't have changed (the decision)...

"It may have helped the victims get something off their chest ..."

"The concern," Prince cuts in, "is that the young man (Nicolas) is still living in that home."

"Well, what do you do?" the judge says, outlining the terms.

But Elsa needs time to move her son, says Prince.

"I feel like I need to go and let them know as soon as possible." And off she dashes for a phone.

And Peter Galanos walks free.

"Good luck to you, Mr. Galanos," says Justice Gorewich.

"Thank you."

"All the best," replies the judge.

 

[GAP]

.:brickwall: :brickwall:

 

[17thRecceSgt]

If the judges are sooo willing to let these pieces of crap free, I suggest we build half-way houses next to all the judges homes and that of their grandchildren.  It would seem they are too detached as to the reality they are creating for the rest of us.

Heck, why not just have these criminals just live at their judges homes for a week or two until they get themselves on their feet, the fine outstanding citizens that they are!

Agreed Gap  :brickwall: :brickwall:

 

[warspite]

I think that your on to something there

 

[North Star]

Quag -

Just a question. If judges are accountable, who are they accountable to and how can a judge be removed from the bench? Can regular Joes within a community do it via petition to Parliament, a higher courty, etc? I've often wondered this seeing as lots of them seem to constantly forget the deterrence principle when it comes to sentencing.

 

[warspite]

How about if so many people petition against a judge some sort of inspection takes place into the history of the judges actions and if this investigation finds the judge hasn't been sentencing justly, the judge gets booted out in the street with no comfy severance package and a reduced pension?  OF course there would have to be some pretty major safeguards to prevent abuse of this system.
Feasibility? Feel free to point out the problems with this plan.

 

[Gunnar]

Who performs the inspection?  What is considered "just"?  How many people need to sign the petition?  A coalition of welfare moms, criminals and other layabouts (keeping in mind that these people have plenty of time to petition, protest and do other things that working people can't) who claim that "the system is out to get us", where "us" is determined by race, poverty, minority, etc., etc?  And how long before the idea of JUSTICE becomes that favourite socialist anti-concept, "social  justice"...?  That's where criminals from a disadvantaged section of society are given special treatment (i.e., are not subject to justice), in order to "equalize" things....

Personally, I favour having only a few simple laws, with  a single statutory punishment:  Death.  Give everyone a two year warning period, then enforce it.  Harsh?  Oh yea....but people would tend to OBEY the law.  Of course, that would have it's problems as well...

Churchill once described democracy as the least worst political system.  It really is.

 

[Quag]

Quag -

Just a question. If judges are accountable, who are they accountable to and how can a judge be removed from the bench? Can regular Joes within a community do it via petition to Parliament, a higher courty, etc? I've often wondered this seeing as lots of them seem to constantly forget the deterrence principle when it comes to sentencing.

Ok again, this is IN THEORY.

(And I say again) In theory, judges may be removed from office if they breach the requirements of good behavior, however, in practice, they would appear to be relatively immune from sanctioning.  Under the Judges Act, the process to assess alleged breaches of conduct by federally appointed judges falls to the Canadian Judicial Council, (est. 1971), by an act of Parliament.  One of the 4 responsibilities of the the CJC is to investigate complaints about the conduct of federally appointed judges.  When notified that a judge has breached the requirements of good behaviour, the CJC then decides whether or not the judge has become "incapacitated or disabled from the due execution of the office of judge by reason of age or infirmity, having been guilty of misconduct, having failed in the due execution of the office etc...". 

The CJC receives anywhere from 150 to 200 complaints annually.  Judges have been reccommended to be removed from the bench, however it is up to the Minister of Justice to actually remove him/her.  So to answer, the question, in theory judges are ultimately accountable to the Minister of Justice.

I'm going to go against what I said earlier, and say that in Canada, judges (from what I have seen/studied etc...) play a greater role in building and deciding a case, they seem to put the evidence together,  and they go beyond the "refereeing role" characteristic of common-law judges.

However, I still do not "put the judges on the chopping board" as much as some have in this thread. 

I agree that there are some serious flaws, but it cannot solely be based on judges. 

In my short experience in courts, every case that has shocked and made me wonder about our legal system, comes from recommendations of external influences (CP's etc..). 

There is no explanation for the cases that have been posted in this thread.  These seem to be (without reading full court transcripts) serious errors by the judges.

However, it is in my opinion that you cannot place blame on an entire group, for the actions of a coupe of the members.  Afterall, I have noticed people tend to that with the military (one guy does something bad, and the whole military is to blame), and it is a shame.

 

[warspite]

That is a fair assessment of the situation, it's the justice system that lets the criminals off easy and the justice system is made up of more than just judges.  Our justice system is in need of an overhaul. There are too many holes in it. But that being said the right to a fair trial is important and must be preserved. The problem is when there is no punishment when someone is convicted, if you are convicted of something you've had your fair trail already and it's time to reap what you've sown. Perhaps mandatory sentencing would help the situation?

 

[Quag]

It is in my opinion that mandatory sentencing should never happen.

The discretion of judges is a very important aspect of the justice system.

Take this case for example. 

Adult A decides to steal a chocolate bar from the corner store.  He/She has no previous record.  He/She is charged with theft under $5000.
Adult B decides to steal 10 cartons of cigarettes from the same store.  He/She has a previous record of assault and DUI.  He/She is charged the same with theft under $5000.
Mandatory sentencing is at 1 year (just for the point I'm making) for theft under $5000.

Maybe this is just my opinion, but do you not think that it is good that the judge has the discretion to give a more lenient sentence to the child, versus the adult whom should have known better/ committed a more serious crime (ok lets not get into the "stealing is stealing" and they are equally bad argument).

This is where I think that mandatory sentencing wouldn't work.  Just my thoughts though.  And I will state that I have no viable alternative at this time to put forth.

 

[larry Strong]

I have to agree we need some kind of mandatory sentencing. Once people find out that there are repercussions for crimes, maybe it might act as some sort of deterrent.

your example really is not realistic as a kid would go thru youth court and an adult would be upstairs, 2 different situations I would think. Not only that, but the little brat would go thru the trial system with complete anonymity, something else that has to stop, start bringing back the humiliation factor......Oh wait, that might be against his Charter rights :

 

[Quag]

Edit: You are right, what I meant was KID A is 18 y/o.

 

[warspite]

I understand your concern but isn't stealing a candy bar shoplifting and wouldn't stealing ten cartons of cigarettes fall under theft under 5000 dollars?
But could there perhaps be mandatory sentences but with a couple factors built in i.e.
Theft under 5000 dollars-no previous record=1 year

Theft under 5000 dollars-previous criminal record or convictions=2 years
I agree there should be some options should the case warant it but there has to be a solid guaranteed punishment,i.e you reap what you sow

 

[Quag]

Legally, it could be either or at the discretion of the judge.

I like the mandatory sentences with a couple factors built in, but once again, that would have to incorporate using the discretion of judges, as sometimes the first offence is serious enough to warrant jail time etc... 

 

[warspite]

Perhaps a jury could be held to allow a more serious sentence should the situation warrant it?

 

[zipperhead_cop]

It is in my opinion that mandatory sentencing should never happen.

The discretion of judges is a very important aspect of the justice system.

Take this case for example. 

Adult A decides to steal a chocolate bar from the corner store.  He/She has no previous record.  He/She is charged with theft under $5000.
Adult B decides to steal 10 cartons of cigarettes from the same store.  He/She has a previous record of assault and DUI.  He/She is charged the same with theft under $5000.
Mandatory sentencing is at 1 year (just for the point I'm making) for theft under $5000.

Maybe this is just my opinion, but do you not think that it is good that the judge has the discretion to give a more lenient sentence to the child, versus the adult whom should have known better/ committed a more serious crime (ok lets not get into the "stealing is stealing" and they are equally bad argument).

This is where I think that mandatory sentencing wouldn't work.  Just my thoughts though.  And I will state that I have no viable alternative at this time to put forth.

See Quag, that is where the problem lays.  People like you trot out hypotheticals.  We live in an unfortunately practical and real world.  Criminals don't worry about niceties so much.
And the whole point so far is the woefully inadequate addressing of violent crime.  Screw the hypotheticals.  The charge that applies for stealing a box of screws at Rona is the same charge that applies for stealing a 1995 Dodge Caravan, or a Spirit, or Acclaim.  The m/v's are not worth more than $5000, so that is what the charge is.  Car theft=shoplifting=not against the law (where sentencing is concerned). 
How does mandatory sentencing not work when a creep gets convicted of child pornography for having 10,000 plus images of child sex torture, then getting a year of house arrest and STILL BEING ABLE TO KEEP HIS COMPUTER?!?!  (Because he "wants to take courses on line") 
IF we could trust the judges, then we could probably do away with mandatory sentences.  The fact that they exist speaks to the fact that the judges are not serving the people.  It is a statutory way to get around the judges weak treatment of crime.  And they still ignore the guidelines as they see fit.  Hell, the last three times I went to court for someone who didn't have auto insurance they came up with some lame ass excuse about "I'm poor, I need a car, blah blah blah" and got sentences reduced to $1500 (minimum sentence in Ontario is $5000 and it goes up from there).  JFC!! I pay more than that for my cars.  Maybe I should cancel my insurance, since not only do I know I will get a freebie, I can almost guarantee I won't get a ticket.  But I won't. 
Gunnar, I mentioned before that the higher courts would not be elected.  I agree that there needs to be some senior direction so that there isn't a massive back and forth with the legal system.  But the way it is now, the bunch that makes poor decisions drags down the few good ones that are left, because all of a sudden precedence kicks in and they are compelled to do what some socialist college did out in BC.  But the high courts don't deal with the everyday administration of the legal system. 
Another interesting nuance is now that Canada Customs (CBSA) is now an enforcement agency, they are picking off more and more criminality coming through the border.  There will come a time in the near future where they will likely be laying their own charges (currently, they have to have an RCMP officer do it, and they pretty much only lay charges for huge cases here in Ontario).  So, as the curve comes around, and more out of country criminals see how weak our system is, how do you think that will bode for you big city types?  Me?  I live in a border town that is loosely been designated as a "no mans land" by the various organize crime factions that commute through.  Toronto and GTA?  Not so much.  Vancouver?  Hah.  Good luck.  Montreal?  Half way there now. 
I only stick with this because I care about you people.  I get to bring my firepower home, I get to hunt down and pursue anyone who displeases me, and I get heaps of court overtime from this useless system.  For the police, the legal system is job security.  If the bad guys actually were kept in jail, or actually stopped being bad guys because they knew all hell would rain on them, my job would get boring pretty quick.  Or maybe then we could start freeing up some resources to go after organized crime and making all of Canada a better place.

Perhaps a jury could be held to allow a more serious sentence should the situation warrant it?

Warsprite, that is a good idea, but only charges that are proceded with by way of indictment get jury trials.  By and large, unless forced to, the Crown elects to proceed by way of summary charges, due to the massive case load that they are force to reckon with.  When you go by way of indictment, you give the bad guy the opportunity to have a preliminary trial, and create even more delay.  Which gives them a better shot at beating the charge for no better reason than that it has been too long since they got caught. 
Plus, most criminals don't have jury trials anymore.  When you introduce a jury, you have real, normal people watching what is going on, and normal people frequently have the disease that terrifies the legal system called "common sense".  Most criminals elect to be tried "Judge alone" and skip the jury all together, since their lawyers know that gets things back into the comfortable "all lawyers involved" scenario.
Over and above all that, jury selection unto itself is a gong show. 
But you have the right idea.  If average citizens were more involved with the process, things might get better.  Hmmmm, how else could we get people involved in a decision making process...ummmm....everyone would have to have a say.....errrrr....there would have to be some way to count the various opinions that people had....oooo, it is right on the tip of my tongue.....kind of like some sort of tally.....jeez, what do they call that.....oh yeah,

A VOTE!!