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Judges follow strict code of law in sentencing criminals

There’s a round in the chamber. I’ve got a whole lot of “pissed off” circulating through my system.

I am taking aim at those who cowardly and ignorantly attack judges and our criminal justice system.

It happens from time to time. The particular inspiration for my posting was a scathing reaction to the recent sentencing of Mitchell Bertrand that I read in one of our local newspapers.

Mr. Bertrand, while seriously impaired, caused the deaths of two people when his SUV, travelling at approximately 150 kms/hr, smashed through the wall of their bedroom where they were sleeping.

Before I tell you what the sentence was, or scathing reaction, I’m going to share with you how the system works.

We, the people, through our elected government officials, make the laws. We task judges to apply those laws to the facts of particular cases.

The Criminal Code sets out the law. It is a piece of legislation that our government passed into law in 1892. It has survived with remarkably few amendments through to today.

The Criminal Code gives sentencing direction to judges. Maximum sentences are provided, along with a set of sentencing principles. The sentencing principles must be considered by judges when deciding where along the sentencing spectrum a particular sentence should fall.

Those principles can be found at sections 718, 718.1 and 718.2. Have a look. The Criminal Code is available on the Internet.

Section 718 mandates objectives such as denouncing unlawful conduct, deterrence, rehabilitation, reparation of harm, promoting a sense of responsibility in offenders, and separating offenders from society, where necessary.

Section 718.1 requires a sentence to be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Section 718.2 includes such guidelines as an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.

Sentencing must also be consistent. Judges have been sentencing offenders for the last 115 or so years. Well established sentencing ranges for particular offence circumstances have developed over that extensive period of time.

There are many factors to be taken into account when applying the mandated sentencing principles. For example: A person with no criminal record ought to be treated differently than a person with five previous convictions; a person having genuine remorse ought to be sentenced differently than a sociopath; a person whose criminal conduct was perpetrated with a clear head ought to be dealt with differently than a person who was severely impaired by alcohol.

Judges are not perfect. If a judge imposes an unusually harsh or unusually light sentence, the judge’s decision is subject to appeal.

The key, though, is that judges apply the law that we give them. If we think that sentences imposed by judges are too light, it is asinine to blame the judges. It is also cowardly, in my view, because judges are not permitted to defend their decisions in public debate.

If we want things to change, it is totally within our power to change them. Change the sentencing principles under the Criminal Code that judges are mandated to follow. Make it “an eye for an eye” instead of having sensible principles that are geared towards a sensible, civilized society. Create ridiculous “three strikes and you’re out” laws like Americans have tried with abysmal failure.

The judge facing the tragic deaths of two people at the hands of a severely impaired driver was assisted by two lawyers in coming to a decision. One was the Crown lawyer, who outlined a sentencing range, given the various mandated sentencing principles and 115 plus years of sentencing history. The sentencing range he very properly provided to the judge was four to six years in prison with a driving prohibition of 10 to 15 years.

People unfamiliar with the particular facts of the case and ignorant as to the workings of the criminal justice system are bound to do a rough comparison in their heads that makes the applicable sentencing range appear completely unreasonable.

On a very simplistic analysis, that’s two to three years per life. Is a life only worth two to three years?

The problem is that the “eye for an eye” mentality is somehow ingrained in our systems. We see the loss on one side of the scales of justice, and want to see an equivalent penalty on the other side. Thankfully, we the people, thinking soberly and not all riled up by throngs of angry people with pitch forks, have not given “eye for an eye” as a sentencing principle.

Mr. Bertrand was reportedly a hard working family man with no prior motor vehicle infractions or criminal convictions. He had previously been a Summerland resident. He had been visiting that weekend for his daughter’s graduation.

It was a tragic string of events. He had spent seven hours in a local pub. Whatever his intention when he got there, he was served enough alcohol that he had a blood alcohol level at more than three times the legal driving limit when he walked out to his truck. In his severely impaired state, he decided to drive. Who knows why, but in his severely impaired state, he refused offers by friends to give him a ride.

He might have gotten lucky, as impaired drivers are lucky most of the time. He might have made it home without incident. He might have stopped for the RCMP and faced a $300 fine.

Instead, tragically, two very innocent, very loved, and very missed human beings were killed.

Another human being, Mr. Bertrand, was sentenced to five years in prison. Reportedly, cries of “I love you daddy” were heard as he was led out of the courtroom in handcuffs.

It is not my goal to evoke sympathy for Mr. Bertrand. I don’t know the fellow. His actions, flying down the road at 150 kms/hr, while blasted drunk, were horrendous. However, when Mr. Bertrand got up out of bed that morning, looking forward to his daughter’s graduation, he certainly did not plan on killing anyone. If he had, then the Criminal Code would have mandated a sentence that would have felt more in balance with the loss.

I expect that the time Mr. Bertrand spends in prison will pale in comparison to the anguish he faces every day of his life, thinking about the lives he was responsible for taking. It’s the stuff of suicide. If whatever was going on for him before, which led to such destructive behaviour, to himself and others, weren’t bad enough, he is now facing the brutal consequences of that behaviour.

Impaired driving is preventable. Public attitudes about impaired driving have wonderfully moved in the right direction, but we’re far from being “there” yet. Each of us has a part in changing those attitudes. Each of us has a responsibility to put this agenda front and centre with our elected officials. We can move mountains if we have the political will to do so. One of the media reports talked about a device that can be installed in motor vehicles that effectively requires a breathalizer reading every time you start your car. How about requiring one of those on every vehicle?

Let’s smarten up and stop blaming the judges, though. If your vision of positive change is to put first time offenders away for life, then change the law that judges are mandated to apply. Follow the American “eye for an eye” model and build bunches more prisons. Leave our judges alone.

Published September 7, 2008 in the Kelowna Capital News