A glimmer of hope for meaningful sentences

Discussion, ideas, questions and thoughts on case law.
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A glimmer of hope for meaningful sentences

Postby PPSC Lawyer » Sat Dec 11, 2010 2:24 pm

Okay, this is a really long case decision, but if you're interested in case law it's absolutely fascinating.

http://www.albertacourts.ab.ca/jdb/2003 ... ca0363.pdf

I can't summarize it without taking away a lot of the strength (and vehemence) with which it is written, but I'll try anyways:

It's a 5 member reserved decision (and unanimous) delivered from the Alberta Court of Appeal. It calls for courts, if not Parliament, to introduce a meaningful system for predictable and meaninful sentences. It says the absolute primary consideration on sentencing is that a sentence must be proportionate to the gravity of the offence, and no other consideration can take away from that. It re-states the law in Alberta from R v Sandercock that the starting point for a major sexual assault (i.e. penetration) is three years in custody, and it specifically says four past decisions from the Alberta Court of Appeal are wrong when they agreed with sentences that did not start their analysis at three years.

The Alberta Court has essentially double dog dared the Supreme Court to take up the matter of sentencing generally in Canada. It will be very, very interesting to see if the SCC takes them up on it.
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Re: A glimmer of hope for meaningful sentences

Postby Mongo » Sat Dec 11, 2010 3:16 pm

Interesting, thanks for the link.

But what happens if the Supreme Court ups the ante and triple dog-dares Alberta??
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Re: A glimmer of hope for meaningful sentences

Postby SD_SC1 » Sat Dec 11, 2010 4:58 pm

What's actually going to keep offenders in custody?
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Re: A glimmer of hope for meaningful sentences

Postby Luke101 » Mon Dec 13, 2010 11:28 pm

PPSC Lawyer wrote:It says the absolute primary consideration on sentencing is that a sentence must be proportionate to the gravity of the offence, and no other consideration can take away from that.


So if I understand this, it shouldn't matter if Bill's father was a drunk, everyone who knows him agrees that he's turning his life around and he is loved by his dog. If he robs a store, he should get the same sentence as someone who can't buy character witnesses.

Is that right? I haven't read the article yet, mostly because I'm exausted and not up to 127 pages tonight.
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Re: A glimmer of hope for meaningful sentences

Postby PPSC Lawyer » Tue Dec 14, 2010 12:35 am

Luke101 wrote:
PPSC Lawyer wrote:It says the absolute primary consideration on sentencing is that a sentence must be proportionate to the gravity of the offence, and no other consideration can take away from that.


So if I understand this, it shouldn't matter if Bill's father was a drunk, everyone who knows him agrees that he's turning his life around and he is loved by his dog. If he robs a store, he should get the same sentence as someone who can't buy character witnesses.

Is that right? I haven't read the article yet, mostly because I'm exausted and not up to 127 pages tonight.


First it makes you feel better, the decision os only 60 pages or so. The rest are footnotes.

NAd it's not exactly that everyone should get identical sentences. Consider Mr. Arcand. The Alta CA said the starting point for major sexual assault is 3 years. Then, citing his young age, troubled upbringing, said the sentence should be 2 years less a day.

The trial court however gave him 90 days intermittent.
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Re: A glimmer of hope for meaningful sentences

Postby meathead1 » Tue Dec 14, 2010 5:24 am

PPSC Lawyer wrote:Then, citing his young age, troubled upbringing, said the sentence should be 2 years less a day.

The trial court however gave him 90 days intermittent.


Which is why most coppers, and anyone who has been the victim of a crime, thinks the "justice" system is a fucking joke. The only people the system works for are the shitbag criminals.
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Re: A glimmer of hope for meaningful sentences

Postby PPSC Lawyer » Tue Dec 14, 2010 11:50 am

meathead1 wrote:
PPSC Lawyer wrote:Then, citing his young age, troubled upbringing, said the sentence should be 2 years less a day.

The trial court however gave him 90 days intermittent.


Which is why most coppers, and anyone who has been the victim of a crime, thinks the "justice" system is a fucking joke. The only people the system works for are the shitbag criminals.


Hence the title "A glimmer of hope for meaningful sentences".
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Re: A glimmer of hope for meaningful sentences

Postby PPSC Lawyer » Tue Dec 14, 2010 11:52 am

IrishCanadian wrote:Should the logic not be that given all the "mitigating" factors, he would get 3 years.. and then anything aggravating should mean greater than 3 years?



Well, they say the starting point is for someone of generally good character is three years. It goes up or down from there. But three years assumes no prior record.
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Re: A glimmer of hope for meaningful sentences

Postby John014 » Tue Dec 14, 2010 1:16 pm

Sexual offence should equal death or castration (depending on how wimpy the judge is feeling).

There solved the problem.
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Re: A glimmer of hope for meaningful sentences

Postby TwE@k » Tue Dec 14, 2010 9:03 pm

John014 wrote:Sexual offence should equal death or castration (depending on how wimpy the judge is feeling).

There solved the problem.


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Re: A glimmer of hope for meaningful sentences

Postby RJB » Tue Jan 04, 2011 11:37 am

PPSC Lawyer wrote:
Luke101 wrote:
PPSC Lawyer wrote:It says the absolute primary consideration on sentencing is that a sentence must be proportionate to the gravity of the offence, and no other consideration can take away from that.


So if I understand this, it shouldn't matter if Bill's father was a drunk, everyone who knows him agrees that he's turning his life around and he is loved by his dog. If he robs a store, he should get the same sentence as someone who can't buy character witnesses.

Is that right? I haven't read the article yet, mostly because I'm exausted and not up to 127 pages tonight.


First it makes you feel better, the decision os only 60 pages or so. The rest are footnotes.

NAd it's not exactly that everyone should get identical sentences. Consider Mr. Arcand. The Alta CA said the starting point for major sexual assault is 3 years. Then, citing his young age, troubled upbringing, said the sentence should be 2 years less a day.

The trial court however gave him 90 days intermittent.
So its not really a glimmer of hope. Even if the SCC gave this a thumbs up in a decision the liberal fuck judges would still lower it to the usual joke of a sentence.. or the crown, scared of trial, would deal with another joke of a sentence. Nothing has changed with this.

It will change when it is said that for the crime of sex assault the minimum sentence is 3 years. So with if there was a bunch of mitigating factors then that sentence will not be more than 3 years.. just 3 years as the minimum.

Get back to us when that happens.

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Re: A glimmer of hope for meaningful sentences

Postby PPSC Lawyer » Tue Jan 04, 2011 12:17 pm

RJB wrote: So its not really a glimmer of hope. Even if the SCC gave this a thumbs up in a decision the liberal fuck judges would still lower it to the usual joke of a sentence.. or the crown, scared of trial, would deal with another joke of a sentence. Nothing has changed with this.

It will change when it is said that for the crime of sex assault the minimum sentence is 3 years. So with if there was a bunch of mitigating factors then that sentence will not be more than 3 years.. just 3 years as the minimum.

Get back to us when that happens.


Read the damn judgment.

The Alta CA said that if courts don't fix sentencing, it is inevitable that parliament will keep introducing new minimum sentences.
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Re: A glimmer of hope for meaningful sentences

Postby RJB » Wed Jan 05, 2011 1:30 pm

PPSC Lawyer wrote:
RJB wrote: So its not really a glimmer of hope. Even if the SCC gave this a thumbs up in a decision the liberal fuck judges would still lower it to the usual joke of a sentence.. or the crown, scared of trial, would deal with another joke of a sentence. Nothing has changed with this.

It will change when it is said that for the crime of sex assault the minimum sentence is 3 years. So with if there was a bunch of mitigating factors then that sentence will not be more than 3 years.. just 3 years as the minimum.

Get back to us when that happens.


Read the damn judgment.

The Alta CA said that if courts don't fix sentencing, it is inevitable that parliament will keep introducing new minimum sentences.
I don't see any real glimmer of hope. 2 years less a day for this kind of major sexual assault is hardly anything. We all thought the elimination of 2 for 1 credit was going to change things.. it hasn't. Judges are compensating for it by giving lessor sentences. If mandatory minimums are introduced why wouldn't judges convict on lessor charges with lower minimums. They have too much power in this country.

I like this quote which shows how wishy-washy lawyers are..
[15] The Crown appealed sentence, arguing in its factum that the sentence should be in the range
of three to four years
. Defence counsel acknowledged in her factum that the sentence imposed was
not fit and conceded that a fit sentence would be one year imprisonment.
During hearing of this
appeal, in response to questions from the Court, Crown counsel indicated that, on reflection, a fit
sentence would be two years or two years less a day imprisonment plus probation
. Defence counsel
advised that she was now of the view that it would not be appropriate to impose any further sentence
of imprisonment.
She asked for and was given leave to file post-sentencing materials subject to the
Crown’s consent. Defence sentencing materials have since been updated for this Court and are
discussed below in addressing the merits of this appeal.


Classic spineless crowns..
"The sentence is ridiculous! It should be 3-4 years in jail!"
"As the defense I think that it was a bit light of a sentence and should be closer to a year in jail!"
"Actually.. maybe 3-4 years is too much.. how about 2 years less a day?"
"Well there should be no additional jail time then!"

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Re: A glimmer of hope for meaningful sentences

Postby PPSC Lawyer » Wed Jan 05, 2011 2:14 pm

The trouble with this case however was that when the court decided to take it up as a kind of test case for sentencing in general, it took much, much longer than it otherwise would have, for reasons completely unrelated to Mr. Arcand personally. It does seem somewhat churlish to throw a guy back in jail two years or more after he finished his sentence.

Which of course is the problem with having to appeal sentences generally. All the time we get sentences we don't like, we contemplate appealing, only to conclude that an appeal court will probably agree with us but it will take so much time nothing would be done in the end.

And RJB, I get the anger at the justice system, I really do.

But once the anger fades, do you have any real and plausible solutions? It seems to me anonymous rantings on the internet aren't going to change things, but argueing meaningful cases like this one will (albeit only step by step).
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