An Ontario judge has mounted an unusual attack on federal crime legislation, accusing the government of turning bedrock principles of criminal law upside down.
In an article written for a legal publication, Justice Melvyn Green of the Ontario Court of Justice said that sentencing reforms "have cast a dark shadow on the sentencing principles of proportionality and restraint."
A broad range of measures rooted in the desire to punish offenders are profoundly at odds with common law and a century of social science research into rehabilitation and recidivism, Justice Green said in the article, published in the spring edition of the Criminal Lawyers Association newsletter.
He said that the federal provisions are driven by "an ideology of unabashed Puritanism, marketed through fear-mongering and the invidious exploitation of communal differences."
A prominent member of the defence bar before his appointment in 2005, Justice Green is widely respected for his careful, erudite approach to judging. His statements add fuel to a simmering battle over a mounting list of mandatory minimum prison terms and harsh penal reforms.
CLA president Norman Boxall said in an interview that Justice Green has bravely stated a belief that is widely held by judges and lawyers who work in the busy criminal court system.
"The trend to longer sentences through the use of mandatory minimums and the elimination of conditional sentences is, in many cases, ill-advised and not supported either by research or common sense opinions held by judges and counsel who work in the Ontario Court of Justice on a daily basis," Mr. Boxall said.
In his article, Justice Green enumerated a swath of changes under the Conservative government that he said have set back the justice system. These include the dismantling of the conditional sentencing regime, the eradication of pardons, and virtually automatic deportation orders for those convicted of minor offences.
"Mandatory sentences have proliferated," Justice Green added. "Conditional sentencing is all but eliminated. Pre-sentence custody credit is tightly capped. Federal parole eligibility is delayed and circumscribed. ... A policy of punishment, incapacitation and stigmatization has replaced one premised on the prospect of rehabilitation, restoration and reform."
He said that, with 95 per cent of criminal cases now being decided by guilty pleas, every player in the justice system recognizes that sentencing lies at the core of what the court system does. Accordingly, he said, it is imperative that policies be crafted with care.
Justice Green also pointed out that, if punishment alone could make the community safer, the United States would be the safest place on the planet. Instead, he said, the brutalizing U.S. prison system disgorges hardened ex-convicts who feel they have no stake in their society.
Justice Green said that the federal reversal is particularly troubling in view of federal commissions that were struck in the 1970s and 1980s to arrive at sound sentencing policy. He said that the vice-chairman of one of the most enlightened of these – the Daubney commission – has since become justice minister: Rob Nicholson.
Mr. Nicholson's government has repudiated what the Daubney commission stood for, turning its back on the very careful, proportionate blend of punishment and restraint it espoused, he said.
"Draconian penalties will never address the rewiring and therapy necessary to make damaged persons, if not whole, then at least, productive and responsible participants in the community we share," Justice Green said.