A chat with a U of W student about our broken courts

- September 11th, 2012

I received an email from University of Winnipeg student Chelsea Smith regarding a column I wrote in Monday’s Winnipeg Sun. I responded to the email in a fairly comprehensive way and told Chelsea I thought putting the original email and my response to it on my blog might foster some good debate. Here’s the email, followed by my response:

Hi there Tom,
As a University of Winnipeg Criminal Justice student and avid reader of the Sun, I frequently read your columns. I find them very interesting, and frequently find myself agreeing with your somewhat outspoken and often quite critical opinions.
On Monday morning, however, I came across the article you wrote about Judge Ray Wyant and the decisions he will have to make in the near future, regarding an 18-year old man robbing and raping a 27-year old woman. I have been reading the details of this case, and it has been scrutinized in my classes at school. I couldn’t help but notice that you accused Wyant of “passing the buck” onto the news media when it came to the public’s negative opinion of the criminal justice system.
I agree that the Canadian criminal justice system is flawed, although I also have to side with Judge Wyant’s statement. As a journalist, how often do you or your coworkers report on stories of proper sentencing and banal criminal activity? Are stories where justice is served of interest to the public? Will they sell papers?
Probably not.
I’ve been to my fair share of run-of-the-mill domestic court cases, and never once have I noticed you, or any other mainstream journalistic personality sitting in the court room. Would it be out of place to say that the media is more interested in the sensationalized stories that draw public emotions and subsequently sell papers?
I’m not trying to discredit you or your colleagues in any way, but I don’t think that the claim that you made was warranted or appropriate.
Judge Wyant was not “passing the buck” when he claimed that the media aids in the public’s distrust in the system. It is up to the media and Canada’s judicial officials, not to mention politicians who capitalize on the public’s fear and distrust in the system, to help the public to better their understanding of the Canadian criminal justice system, and to bring faith back into the minds and homes of Canadians.

Chelsea Smith

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Hi Chelsea,

Thank you for your email. You raise some valid questions and I wanted to take some time to respond to them.

Let me say first that you’re in a very exciting field and it’s always gratifying to hear from students studying criminal law — not an easy, or black-and-white discipline.
Actually, I do think stories where justice is served are of interest to our readers. No doubt the public is very interested when the courts bring the administration of justice into disrepute. Which is why we focus on those cases a lot. Generally, in journalism, we shine the light into dark places because those are the areas where corrective action is required. Ergo my Eight-Ball Awards, which as you may know, I hand out frequently.
However, I also think credit should be given where credit is due. It’s important not only to shine the light into dark places but also to showcase success stories as examples of what we should be striving for. Which is why I started giving out “Hard-Ball Awards” to judges about 6 or 7 years ago to highlight cases where justice was served.
I hope it helped to sell newspapers because that’s what we’re in the business of doing.

Here are a few examples of those accolades from our Winnipeg Sun archives:

The Winnipeg Sun
Copyright © 2006, The Winnipeg Sun

Wednesday, June 28, 2006

DETERRING CRIME EARNS JUDGE REWARD

Edition: Final
Source: BY TOM BRODBECK
Column: Hard Ball Award
Section: News Page: 5

I want all the soft-headed, do-gooder social worker types to pay close attention to the jail sentence handed down by provincial court Judge Richard Chartier this week.
I want them to examine this case because they need a little lesson on the sentencing principle of deterrence — a concept that seems to be falling out of fashion in our courts these days.
Russell Spence, 20, was caught stealing car stereos earlier this year. He’s been caught before — six times — and each time was given a slap on the wrist for his actions.
It’s little wonder he didn’t change his behaviour. He quickly realized that stealing car stereos was not taken seriously in the courts, so he kept doing it.
The element of deterrence was absent from his previous 18 convictions. That’s why Judge Chartier, who gave Spence 14 months in jail, threw the book at him.
“You’re out of control, I don’t know what else to tell you,” said Chartier. “Enough is enough.”
In the Criminal Code, this is called deterrence.
It’s not vengeance or revenge or any of those sinister buzz words the anti-jail folks like to use to further their cause.
It’s designed to deter the person from committing further crimes.
It’s in Sec. 718 of the Criminal Code, which says that sentences must include one of several objectives, including “to denounce unlawful conduct,” and “to deter the offender and other persons from committing offences.”
It’s right there in black and white — a section that appears to be whited-out in the copies of some people’s Criminal Codes (including many judges).
SENSE OF RESPONSIBILITY
There are other objectives, too, including the need to “separate offenders from society, where necessary,” and “to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.”
I like the last one.
However, the one that seems to get the most attention in courts these days is Sec. 718 (c), “to assist in rehabilitating offenders.”
That’s the wrist-slapper — the coddle clause.
It’s the one that often trumps other sentencing principles, including deterrence.
Not this time.
What Chartier ruled is that people must have respect for the law. And that if people like Spence continually flout the law, they’re going to face serious consequences.
We all want Spence to rehabilitate himself and turn his life around. If he wants to change, he can start by taking some programming at Headingley jail.
But his rehabilitation can’t come at the expense of deterrence.
In fact, the deterrence is part of the rehabilitation.
For that, Chartier is the winner of this column’s Hard-Ball Award, given out to judges who understand what justice really is.
It’s the flip side to the Eight-Ball Award.
And it’s designed to give judges credit where credit is due.
Chartier definitely deserves credit for this sentence.
Not only does it deter Spence specifically, it also denounces and deters his crime generally.
And if more judges handed down similar sentences, car thieves and stereo thieves would start getting the message that if they break the law they’re going to do time behind bars.
Right now the perception is that if you get caught stealing car stereos, you get off scot-free.
Chartier made a small step toward changing that this week.

Friday, March 21, 2008

CANDID JUDGE TELLS TRUTH ABOUT COKE DEALER

Edition: Final
Source: BY TOM BRODBECK
Section: News Page: 5

It’s been a while. But there’s finally a judge who is deserving of this column’s Hard-Ball Award.
The academy is pleased to announce Court of Queen’s Bench Justice Donald Bryk is the latest winner of the Hard-Ball Award, handed out to judges who understand the importance and application of the sentencing principles of deterrence and denunciation.
It’s the antithesis of the Eight-Ball Award.
Bryk sentenced cocaine dealer Jose Neves to 10 years in prison this week, accepting a joint sentencing recommendation from the defence and Crown.
It’s a stiff sentence but it falls within the accepted range.
However, it’s not the sentence alone that elevates Bryk to Hard-Ball status.
It’s his tell-it-like-it-is tongue lashing of Neves that sets him apart from other judges.
You know how we often hear judges coddle criminals with I’m OK/You’re OK, touchy-feely language?
Crap like: “Well Bob, since the time you beat that guy with a hammer, you’ve really turned your life around.”
Judges often have this annoying habit of emphasizing the so-called good things about criminals and too often buy into the bogus, glowing testimonials others bring to the court.
“Johnny’s really a nice boy. He just didn’t know what he was doing when he lit his neighbour’s dog on fire.”
Well, Justice Bryk isn’t one of those.
Instead of pretending Neves is a good guy who just got caught up with the wrong crowd and that he’s really a loving father, blah, blah, blah, Bryk told the truth.
“He is a cold-hearted, greedy, manipulative, dishonest and deceitful person who cares only about monetary gain,” Bryk said. “He doesn’t respect human life.”
Hey, now.
“Neves doesn’t have an ounce of remorse in his entire body,” he said.
We don’t have to get into the serious harm cocaine dealers like Neves cause in society. We all know what it is. He’s a “parasite” on society, as Bryk put it.
Neves was nabbed in 2006 by police as part of Project Defence, an RCMP sting operation. He pleaded guilty to two counts of trafficking cocaine.
At the time of his offences, he was on parole for a previous cocaine trafficking offence.
Bryk said Neves “bamboozled” the National Parole Board when he convinced them to release him.
“I can only hope your true colours will be apparent to the next parole board in front of which you appear,” Bryk said.
Bryk even went after the people who expressed support for Neves through letters they submitted to the court.
“How can characteristics of honesty and decency be applied to a convicted drug dealer whose sole purpose is to sell drugs to young people?” he said.
Bryk didn’t buy Neves’ song and dance that he deserved leniency because he pleaded guilty. Neves pleaded guilty not because he is remorseful, but because he wanted a shorter sentence, said Bryk.
What a refreshing change to hear that from a judge.
It’s refreshing because it’s true. Bryk was simply telling the truth.
And to top it off, Bryk refused to give Neves the usual two-for-one credit in pre-trial custody, where criminals get double time in remand.
Why should this guy get double time credit?
Some judges could learn a thing or two from Bryk.
It’s called common sense.

The Winnipeg Sun
Copyright © 2010, The Winnipeg Sun

Tuesday, June 15, 2010

THIS JUDGE GETS IT RIGHT
Rejects Crown’s inadequate sentence for real justice

Edition: Final
Source: BY TOM BRODBECK
Column: Hard-Ball Award
Section: News Page: 5

Winnipeg Judge Tracey Lord made the right ruling last week when she rejected a 40-month sentence for a man who pleaded guilty to a random, unprovoked knife attack on an innocent victim in 2008.
Steven McIvor was found guilty of aggravated assault after he and two others attacked a man waiting for a bus on Selkirk Avenue.
McIvor stabbed the man in the chest and again on the side of his body. One of the accompanying attackers beat the victim with a pool ball in a sock.
The victim nearly died. This was a vicious, unprovoked attack that should attract a lengthy penitentiary term.
Incredibly, the Crown in the case only recommended 40 months behind bars for this extremely violent attack.
In reality, the attacker should have been charged and prosecuted with attempted murder.
When you stab someone in the chest and in the side, you know — or you ought to know — that you might kill that person.
Whatever the case, McIvor was lucky he was only prosecuted on the charge of aggravated assault. But the sentence the Crown recommended for it was grossly inadequate. Fortunately Judge Lord recognized that and, in a rare move, rejected the Crown’s recommendation.
Lord instead gave McIvor five years in prison.
For this, Lord is the latest recipient of this column’s Hard-Ball Award, handed out in cases where a judge gets it right. It’s the opposite of the Eight-Ball Award.
“This is precisely the kind of incident the public fears because it can’t be predicted or prevented,” said Lord. “Denunciation and deterrence must be paramount considerations in circumstances such as these.” Exactly.
Judges have the difficult task of weighing competing sentencing principles under the Criminal Code when handing down sentences.
They have to consider mitigating and aggravating factors specific to the case. They sometimes have to consider alternatives to incarceration and give weight to principles such as rehabilitation. They also have to ensure the sentence is proportionate to the gravity of the offence and consider how much deterrence and denunciation is required in a case.
In this exceptionally violent case, Lord correctly concluded that deterrence and denunciation must take precedence over all other sentencing principles.
And believe me, some judges don’t always see it that way in similar violent cases. We often see less emphasis placed on deterrence and denunciation and more weight given to rehabilitation and reintegration.
“An attack like this can only be deterred by the consequences received by way of sentences,” said Lord.
The truth is, McIvor should have got a lot more than five years for practically killing an innocent man standing at a bus stop minding his own business. The sentence should have been in the double digits. But given the charge and conviction before her and the Crown’s feeble recommendation, Lord should be commended for ensuring at least a minimal amount of justice was served.
We often criticize judges for their sentencing decisions when they get it wrong. We should also applaud judges when they get it right.
I think Lord got it right on this one.

—————————————-
Back to my response.

Regarding Judge Wyant, I will have to respectfully disagree with your conclusion that he was not passing the buck in his annual report statements. I believe the disenchantment the public feels with the justice system is not borne out of the media’s coverage of events at the courthouse.
The frustration the public feels is with the judgments themselves, not how they’re reported. Unlike the three judges above who received Hard-Ball Awards for ensuring justice was served, Wyant has often done the opposite. He has frequently brought the administration of justice into disrepute with his judgments.
It’s those judgments that cause people to lose faith in the justice system, not how the media reports them. For him to blame the media for the public’s loss of confidence in the justice system in the wake of his poor judgments is “passing the buck” in my view.

With respect to the attendance of journalists in courtrooms, obviously there are dozens of court proceedings occurring simultaneously at any given time in Manitoba’s courts and reporters can’t be in six places at once. There are a handful of very good court reporters in Winnipeg (The Winnipeg Sun has two of the very best in James Turner and Dean Pritchard) who try to seek out the most interesting cases to cover. However, most cases are simply not that interesting. Nobody is interested, for example, in reading about the run-of-the-mill domestic cases to which you refer.
So no, most court proceedings are not covered by the media, just as the vast majority of legislative standing committee meetings are not covered by the media, either.

Thanks for your email. I think it’s good fodder for debate. Good luck with your studies.

Tom

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