THE LOTTERY IN OUR COURTS

One man serves six months for assault, another gets a suspended sentence for armed robbery. The magistrates' inconsistency is understandable, for robbery, burglary, “stopping a mail van with intent to rob," the Criminal Code allows penalties ranging from suspended sentence to life imprisonment. This is a national report on

JANE BECKER February 24 1962

THE LOTTERY IN OUR COURTS

One man serves six months for assault, another gets a suspended sentence for armed robbery. The magistrates' inconsistency is understandable, for robbery, burglary, “stopping a mail van with intent to rob," the Criminal Code allows penalties ranging from suspended sentence to life imprisonment. This is a national report on

JANE BECKER February 24 1962

THE LOTTERY IN OUR COURTS

One man serves six months for assault, another gets a suspended sentence for armed robbery. The magistrates' inconsistency is understandable, for robbery, burglary, “stopping a mail van with intent to rob," the Criminal Code allows penalties ranging from suspended sentence to life imprisonment. This is a national report on

JANE BECKER

SEVERAL HUNDRED THOUSAND men and women now appear before Canadian magistrates in the course of a normal year, charged with anything from making an improper turn to armed robbery. Most of them are found guilty. In many cases, the sentences imposed on the guilty are arbitrary or capricious, seemingly based less on the facts of the crime or the nature of the criminal than on a long list of other factors that are relevant to the location of the court and the opinions of the judge, but entirely irrelevant to the principle of equal justice before the law.

Evidence from the thousands of magistrates’ courts across the country (which hear about ninety-five percent of all criminal cases) repeatedly describes cases in which the penalty for identical crimes ranges from suspended sentences, to nominal fines, to stiff prison terms. The prisoner in the dock can be sure neither of getting away with a fine after committing an assault (one Port Colborne, Ontario, man got six months, plus another three for contempt of court) nor of going to prison for armed robbery (a Toronto youth was recently given a suspended sentence, though when he tried robbery again two months later he was sent to penitentiary for nine years).

HOW CANADA CREATES CRIMINALS...

A sentence is far more likely to depend on the magistrate’s view of a particular crime or a certain type of offender, the impression an accused or his lawyer makes in court, and where the offense was committed, than on cither the enormity of the crime or the nature of the man who committed it.

Sentences are also affected by facilities out-

side the court. These may vary from the efficiency of the local police force (thorough investigation by a police officer can have a great effect on either reducing or increasing sentence), to conditions at the local jail. Ontario, for instance, puts a far larger proportion of those convicted of indictable (more serious) offenses on probation—about twenty-five percent in 1959 — than does any other province, simply because it has probation officers to handle them. The attorney generals' departments of Nova Scotia and New Brunswick, on the other hand, admit that their magistrates often give two-year penitentiary terms for crimes that don’t really call for more than a few months’ confinement because they consider the local jails to be breeding grounds for crime. The same holds true in Quebec, particularly for young offenders.

Only a few crimes in Canada carry a mandatory minimum penalty under the Criminal Code. For many, disposition can range from a suspended sentence to ten years' imprisonment, For robbery, burglary, and “stopping a mail van with intent to rob,’’ the culprit can get anything from a suspended sentence to life imprisonment. Most magistrates welcome this leew'ay, saying it lets them fit the sentence to the criminal rather than the crime, making allowance for young or first offenders or acts in which some mitigating factor is present.

Nevertheless, lawyers, sociologists and a good many magistrates feel that this leeway, coupled with a sad lack of enlightened means of dealing with offenders after sentence, has led to a capricious and unjust kind of sentencing.

Recently, Prof. Stuart Jaffary, of the University of Toronto school of social work, finished a detailed report on Canadian sentencing, which he researched on a sabbatical leave front

the university four years ago. The report is to be published shortly. “Sentencing is undoubtedly the most important part of the judicial process, and the sentence a man receives can make or break his life,” Jaffary writes. “Yet the present differences in sentences are often arbitrary, the result of the personal views and attitudes of a magistrate rather than any scientific or humane assessment of the offender.” Prof. Jaffary calls Canada one of the most punitive countries in the world in respect to its criminal law. He points out that we send about three times as many people to prison as England does although our population is only about a third as large. “Our punitiveness may be creating rather than reforming criminals,” he charges, and the facts seem to bear him out. A I960 survey of the Canadian penitentiary population of some 6.300 showed eighty-one percent had been in jail previously, and forty-five percent had served a penitentiary term before. Almost half of those convicted of indictable offenses in 1959 had been convicted previously, compared to about thirty-three percent twenty years ago, and ten percent in 1 890.

...WITH MULTIPLYING JAIL TERMS

"You have been in and out of jail for fifteen years,” Magistrate C. A. Thoburn told thirty-seven-year-old Bertram Guilbault of Toronto recently. “If you put your talents to some other use you could make a good living.” But Guilbault went to prison for another three years, this time on charges of paying for a series of rooming-house quarters with bad cheques.

In his report, Prof. Jaffary has broken down, by province, the sentences received in 1955 by the 17,000 Canadians convicted of the most common indictable offenses: assaults of various kinds, theft, breaking

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In Toronto, a vagrant can count on a $5 fine or ten days. In Winnipeg, six months in jail

and entering, and false pretenses. He found that, for any of these acts, an offender would be twice as likely to get a suspended sentence in Manitoba as he would in the rest of the country generally; would have a chance of probation varying from nil in Prince Edward Island (at last report neither P. E. I. nor Newfoundland had any adult probation services), to twenty-one percent in Ontario; would be more than twice as likely to go to jail in Quebec as in the rest of the country; and would have a better-than-average chance of being sent to penitentiary in Alberta or British Columbia.

His chances of going to penitentiary if convicted in Quebec were fifty percent above the national average for breaking and entering, double the average for theft, and triple the average for false pretences (an offense which can range from borrowing thousands of dollars from an investment company with nonexistent security, as one Saskatchewan man did recently, to writing a cheque for $6 when your bank account contains $5).

Chances of being convicted, after being charged, also vary widely from province to province. In 1959 they ranged from ninetyseven percent of those charged in New Brunswick and Manitoba, to eighty-seven percent in Ontario. The national average was eighty-nine percent. Even the relative chances of getting caught can be figured mathematically. If you committed a breaking and entering offense in Quebec in I960, for example, you had about a sixty percent chance of not being found out (only about forty percent of the cases reported to the province’s municipal police forces were solved). In Ontario or Saskatchewan your chances were even better—about seventyfive percent (4,900 of the 21,000 cases reported in Ontario and 450 of the 1.660 in Saskatchewan were cleared up).

For theft—almost 160,000 cases were reported in I960, making it the commonest of all criminal offenses -— you could count on a twenty percent chance of being caught in Ontario or Saskatchewan, but

you had a seventy-six percent chance of being caught in British Columbia (against thirty-nine percent in the country as a whole).

“These variations are wide and serious,” says Prof. Jaffary. "A man released from penitentiary in New’ Brunswick today is

quite likely to turn up in Montreal. Toronto or Vancouver tomorrow. The failure of one province to deal adequately with its offenders endangers the people of every other province."

The closer you look, the more contradictions show up. The usual penalty for

vagrants (other than prostitutes) in Toronto is a $5 fine or ten days in jail. In Winnipeg, it’s six months in jail. A Vancouver magistrate recently convicted a twentyyear-old with several previous convictions of breaking into a café, and fined* him $1,500. The boy’s father paid the fine at

once. At about the same time, seventeenyear-old William Beausoleil of Toronto went to jail for six months after he was convicted of breaking into a jewelry store; and he agreed to make restitution as well.

Impaired driving, of which about 19,000 Canadians were convicted in 1959, can bring anything from a $50 fine to three months in jail and a suspension of a driving license for a first offense. In most small centres the usual penalty is the $50 fine, although one Ontario magistrate caused some raised eyebrows among his colleagues recently when he sent a first offender to jail for thirty days. In Toronto the usual penalty is a $75 fine. In Ottawa it’s $200 plus a year’s license suspension. What happens to a man after he is charged can vary widely. One Alberta man was sentenced to three months and carried his case to the appeal court, where his penalty was reduced to a $200 fine. In Ontario recently, a man charged with impaired driving after knocking down a young girl one evening was released on bail and retrieved his car, only to be picked up the following evening on a fresh “impaired” charge.

To test how much individual magistrates vary in their sentencing, the Ontario Magistrates’ Association tried an experiment at one of its recent seminars. Each magistrate was given identical sets of facts for several hypothetical cases, and passed sentence on the mythical accused. “Their dispositions ranged from here to the moon,” recalls O.M.A. president F. W. Bartrem, QC, of Willowdalc, Ont. “The supposed offenders got everything from suspended sentences to penitentiary terms, on the same facts.”

D. W. F. Coughlan, Ontario director of probation services, thinks that as many as half the widely varying sentences handed out for common offenses result from a lack of background knowledge of cases and from failure to apply uniform principles of sentencing, rather than from studied consideration of individual cases.

During his three years as chairman of the National Parole Board, T. G. Street, QC, a former magistrate, has come across such senseless and apparently vengeful sentences as prison terms of seventy to 100 years, life plus ten years, and two life sentences, “to be served consecutively.”

But he points out that an excessively lenient sentence may be just as harmful as an unduly harsh one. “To sentence a man with a long record to six months or a year probably only encourages further criminal acts.” he says.

Not only magistrates hand down diverse and, to all appearances, perverse decisions. Prof. Jaffary’s report cites two recent Ontario high court judgments in which the learned judges came to directly opposite conclusions in what appeared to be essentially the same circumstances. In each case the accused was convicted of assaulting a young girl. Both men were married with children of their own. For both it was a first offense, and psychiatrists’ reports said both would be harmed by confinement. The first man was fined $450 in magistrate’s court. The crown appealed and the appeal court wiped out the fine, imposing an eighteen-month jail term instead. In the second case the accused was sentenced to two years by the magistrate. He appealed, was examined by the mental health clinic working with the court and, as a result, was put on probation with provision for outpatient treatment.

In another instance recalled by Magistrate Bartrem two men were charged jointly and convicted in magistrate’s court of raping a colored girl. One was sentenced to five years, the other to three. The first man appealed, pleaded guilty to a lesser charge of indecent assault, and was given three months. The other man is still in penitentiary.

During the last two years the Ontario

Supreme Court, trying rape cases, has imposed sentences ranging from three and a half years in penitentiary (on a taxi driver with six previous convictions) to ten years in penitentiary (on a twenty-four-year-old truck driver with no known criminal record). Causing death by criminal negligence brought three months in reformatory to a twenty-seven-year-old truck driver, and four years in penitentiary, with driving prohibited for twelve years, to a thirty-fiveyear-old Italian plasterer. Neither had a known record.

No one suggests identical sentences for offenses which are only technically the same. This would undoubtedly lead to the greatest inequity of all. To illustrate the essential fairness of wide judicial discretion in sentencing, Chief Justice J. C. McRuer of the High Court of Ontario told the Canadian Congress of Corrections last spring of two cases from his own experience on the bench. Both accused were convicted of manslaughter. One was a north country bush worker who had come to town for a gay week end, got drunk, and pushed his companion at the head of a flight of stairs. The man fell down the stairs, struck his head and was killed. In the other case "a dissolute person of vicious characteristics” beat a helpless child to death. The first man was given a suspended sentence. The second was imprisoned for life, and the decision was later upheld by the appeal court. “On paper the crime was the same, but the criminality was as widely divergent as the sentences,” noted the Chief Justice.

What many observers, including a good many magistrates, would like is a standard set of principles governing sentences. This would give equal care and attention to each offender in deciding what to do with him, and would allow maximum use of available facilities to give him the best chance possible to be rehabilitated. Such a course, they believe, would actually result in more uniform sentences for a wide range of commonplace offenses.

One veteran Ontario magistrate has made

a list of offenses for which he thinks magistrates could agree to more or less standard penalties. He says this would help dispose of charges more quickly in court and speed many cases in coming to trial. (At present lawyers often ask for repeated remands, hoping to delay long enough to get before a sympathetic magistrate. The accused may spend the remanded time in jail—and in the end be found not guilty.) This magistrate also believes offenders themselves would feel they were being dealt with more fairly if sentences bore a more consistent relation to offenses. “It’s pretty hard to convince a man sentenced to seven years for breaking and entering that his sentence is just, when the fellow in the next cell has been given three years for the same thing,” he says.

Here is a digest of his list, with suggested penalties:

Impaired driving. A $100 fine for a first offense, reduced to $50 for the man who pulls over to the curb when he realizes he’s “high.”

Drunk driving. Mandatory minimums are already set out in the Criminal Code, but magistrates should agree on maximums. Right now, anything up to a year in jail is possible for second or subsequent offenses.

Driving while license suspended (in this magistrate’s view a much more serious offense than the previous two). Thirty days in jail when the offense is proved to be deliberate. Anything from a suspended sentence to thirty days is usual now.

Fraud on not-sufficient-f unds cheques. If cheque made good, suspended sentence or nominal fine. Offenders sometimes go to jail for this now.

Shoplifting. A $25 to $50 fine for a first offense if the value of the stolen object is under $50. A standard jail term for second or subsequent offenses.

Armed robbery. “These people are potential murderers.” Seven years for a first offense regardless of age or record. For later offenses, “throw the book” (life imprisonment is the maximum now).

A remarkable lack of general interest in the results of criminal law is one reason why sentencing and detention methods have floundered so long in confusion and contradictions, in Prof. Jaffary’s view'. The police have been concerned with arresting offenders, the courts with trying and sentencing them, prison officials with carrying out the sentences, and the community at large with the aftermath. But no one has been answerable for all these things. Thus until very recently virtually no reforms or experiments were even attempted in any of these stages, mainly because no one knew enough about how the system worked to map out sound new policies. “Such ignorance w'ould be inconceivable in any other major social service,” says Prof. Jaffary. But, he believes, even to apply what is knowm of human behavior to the handling of criminal offenders would bring “revolutionary” results.

An example is the presentence report, a detailed record of a prisoner’s back-

ground compiled by a court probation officer, after conviction but before sentence, to aid the magistrate in disposition. In case after case it has helped fit the sentence to the man by uncovering details w'hich would not have appeared in evidence. Prof. Jaffary believes good reports, consistently and intelligently used, could be up to two thirds accurate in predicting the most effective sentence. All the magistrates interviewed in the preparation of this article were enthusiastic about the presentence report device. Yet such reports are not required or even authorized by law, and some courts use them far more than others.

Radical critics of present sentencing practice sometimes suggest that sentencing be taken from the courts entirely and put in the hands of independent boards. These would prescribe treatment for the offender on the basis of case histories and medical and psychiatric reports, and would follow through with periodic checks on the prisoner’s progress in custody; the boards would decide when he should be released and would even arrange aftercare to ease him back into normal, responsible life.

The starting point in any large-scale reform, though, must be to clarify the whole philosophy of penal action. For the last forty-odd years our theories of punishment have foundered ineffectually between the comfortable old buoy of deterrence and the bright beacon of individual treatment. Retribution, a philosophy as old as time but perhaps not quite so durable, has, publicly, been largely sunk, although it still

rears up disturbingly often in spiteful sentences like those mentioned by ex-magistrate T. G. Street. But a hanging is no longer a town fete, and except perhaps in the case of a brutal attack on a child or a particularly vicious murder, few' applaud when a criminal is sent up for a long stretch.

But punishment as a deterrent to crime —the touchstone of Jeremy Bentham and other early nineteenth-century reformers of English law' — still gets lip service from a good many lawyers and court officials. A look at penal history raises doubts as to

whether this theory has ever really worked. In the reign of Henry VIII nearly 75,000 people were publicly hanged in England, with no noticeable drop in the crime rate. Two centuries later English pickpockets plied their trade profitably at the public executions of other, less fortunate pickpockets. Of course the chances of not being caught w'ere excellent. They still are. for many offenses.

In I960 only about 88,500 people w'ere prosecuted in Canada for the 323,000 indictable offenses reported by municipal police forces, according to the Dominion

Bureau of Statistics. At an average of 1.8 offenses per person tried, this still leaves less than half the crimes accounted for. Such varied observers as Prof. Jaffary and Chief Justice McRuer are firm in their belief that certainty of capture is likely to be a far greater deterrent to crime than severe punishment. Some magistrates claim harsh sentences can help stop a rash of a particular crime in a community. Magistrate S. Tupper Bigelow of Toronto, a veteran of seventeen years on the bench, believes they have some power to deter borderline offenders who may be wavering

on the brink of a criminal act. But he doubts their effectiveness either for the confirmed criminal or for the great mass of law-abiding citizens, who avoid crime for quite different reasons.

Most critics of Canadian courts—social scientists as well as magistrates and lawyers—say that to remove the sentencing power from the courts would be unthinkable. The process is too closely bound tip with the whole fabric of British law to be lightly divorced from it. And they suspect that sentencing boards, working behind closed doors, could be far more arbitrary than the occasionally capricious judge or magistrate, whose decision, after all, can always be appealed.

They agree, though, that the key to sentencing, control and confinement in future must be the reform and rehabilitation of the offender, as well as the protection of society. “There shouldn’t be any great conflict between the two aims. Usually what is best for the man and what is best for society are one and the same,” says Prof. Jaffary.

Yet in the stream of offenders who daily pass through the magistrates’ courts, one group is regularly treated in a way which neither encourages reform nor protects society. Nearly everyone admits it and hardly anyone has tried to do anything about it. These are the people the Archambault Commission described in the thirties as “the flotsam and jetsam of society”— the drunks, vagrants and chronic petty offenders who trail through the courts in an endless procession in their losing struggle with the self-sufficient world. In 1959. drunks and “vags” formed nearly a third of all criminal convictions in Canada, apart from traffic offenses. A few of the drunks were sent to the two or three alcoholic rehabilitation centres across the country. The vast majority, however, received an almost ritualistic sentence: $10 or five days for the first offense. $15 or ten days for the second, $20 or fifteen days for a third, $20 or twenty days for a fourth, and $25 or thirty days for the fifth and later convictions. Some have been coming up in court twelve or fourteen times a year for twenty years. About half of those appearing in the Toronto drunks’ court go to jail because they can’t pay their fines, at an estimated weekly cost to the taxpayers of about $4,000.

“We know it doesn’t do any real good.” admits Magistrate R. C. Taylor. “The fine helps pay the. cost of arrest and the jail

sentence keeps them alive. We’ve tried all sorts of other things—long sentences, committal to alcoholic clinics whether they want it or not—but nothing has been very effective.”

The vags are even more hopeless. No one even has any ideas about what to do with them. Including prostitutes and beggars, there were nearly 7,000 vagrancy convictions in Canada in 1959. Nearly all are in court repeatedly, and some spend close to 300 days a year in jail. At $5 a prison day, it costs the country something like $350,000 a year to care for them, apart from the cost of conviction (probably about $250 each).

Should they be treated as criminals at all? In some countries such cases are handled as social welfare problems, quite outside the courts. Certainly both courts and jails would be far less crowded without them (about half of all those sent to jail in Ontario go for drunkenness), and almost any other disposition would probably be worth a try.

Along with a more sensible, long-range plan for handling these thousands, jurists advocate a number of other changes to clarify and improve sentencing.

Here arc a few of them:

□ Periodic visits by all judges and magistrates to the institutions to which they send offenders.

□ Mandatory use of the presentence report, at least for all first and young offenders, with medical or psychiatric reports as well where warranted.

□ F.nough probation officers to handle those who could benefit from probation, and to make presentence reports.

□ Criminal records to be erased after ten years without a conviction.

□ Changes in the Criminal Code to make it mandatory for courts to allow time for

paying a fine. This would put a stop to jailing for debt. (At present courts may allow time to pay but often don’t, and one educated guess puts the number of jailings for failure to pay fines at about 30.000 yearly — or twenty-three percent of all those admitted.)

□ Other Code changes to allow' magistrates to put offenders on probation without convicting them, so that they may be controlled without the stigma of a criminal record, and to date a sentence from the day an accused is taken into custody. (A man may now spend w'eeks in jail awaiting trial and. while some courts consider this when giving a sentence, they can’t legally backdate it. Thus some offenders will spend substantially more time in custody than others, though their sentences are identical.)

□ A standing committee to review all penal legislation periodically and suggest changes in the parts of municipal, provincial, and federal statutes w'hich are outdated, or so unworkable or badly drafted that they are seldom used.

□ More use of the habitual criminals section of the Criminal Code, which provides for indefinite imprisonment for anyone

who has had three major convictions since the age of eighteen and is leading a “persistently criminal life." Only fifty-six men have been convicted under this section, although thousands are eligible.

□ An isolated prison colony, perhaps on an island, for intractable and incorrigible offenders; it would be self-supporting as far as possible.

□ A quite different kind of prison farm for the social incompetents—drunks, vagrants, and petty offenders — who need a sheltered life, perhaps modeled on the institutions long established in Holland and Belgium.

□ Serious consideration of putting all first offenders on probation. (Prof. Jaffary thinks this could be justified even for murderers, "really the least likely criminals to repeat their offense.”)

Some of these reforms were suggested by the Archambault Commission, which reported on the country’s penal system twenty-four years ago in a far-seeing and still highly readable document. Others were urged by the Fautcux Committee which looked into remission services in 1956. In summing up, the Fauteux report no’.ed that sentences could be conducive to preventive justice only if, ultimately, the offender became a better citizen than he was when he was brought to court. “Otherwise, sentencing is temporary and illusory, if not detrimental to the very purpose it was meant to achieve ...” ★