Pubdate: Mon, 18 Apr 2016
Source: Globe and Mail (Canada)
Copyright: 2016 The Globe and Mail Company
Page: A10
Referenced: Supreme Court Judgment: R. v. Lloyd:


Two criminal-law decisions from the Supreme Court of Canada last week 
mark the end of a war between the judiciary and the federal 
government. The judiciary, not surprisingly, won.

Chief Justice Beverley McLachlin has helped restore a balance in 
"credit" for accused people who are held in jail awaiting trial. The 
Conservative government, with one of its characteristically 
rhetorical names for laws, the Truth in Sentencing Act, set stringent 
limits on how much credit an accused person could earn for jail time 
before conviction. It seemed to be based on the idea of the more 
imprisonment, the better.

The chief justice rightly saw that the law could often result in 
someone who committed rather minor drug offences spending a 
disproportionately long time in jail. The Supreme Court concluded 
that would amount to a violation of the Charter of Rights and 
Freedoms. Bye-bye, old law.

In another case decided on Friday, a ruling from the chief justice 
helped restore trial judges' discretion in sentencing. A judge who 
actually hears the evidence has a much better chance of getting some 
insight into people who are accused or convicted - certainly better 
than political staffers drafting legislation in Ottawa.

Some officials in the former Conservative government held a belief 
that sentences in general were often too lax. But in response, they 
caused the Criminal Code to be too generously sprinkled with 
mandatory minimum sentences.

In response, quite a few lower court judges devised an ingenious 
doctrine that many of the Code's mandatory minimums amounted to 
Charter violations, and that certain types of offenders should be 
punished not according to what the accused person had actually done, 
but according to a "reasonable hypothetical" of what a typical 
offender in such an offence would typically have done. It's an 
unusual approach, but it has taken Canada to the right destination.

Minimum sentences are not intrinsically evil - we're okay with a 
mandatory minimum for first-degree murder - but the Conservatives got 
completely carried away with the idea. And that increased injustice, 
not justice. So it's a welcome change that the chief justice and the 
Supreme Court of Canada are putting the law back on something like an 
even keel in criminal sentences.
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