Making Peace With Criminals
Sunday, March 22, 2009 05:17 AM
by: Justice Wallace Craig (Retired)
In his Commentaries on the Laws of England, published in 1765, Oxford professor Sir William Blackstone explained the royal prerogative of Pax Regis/Regina: “It is one of the prerogatives of the Crown to make war and peace”
Making peace means enacting and enforcing laws relating to public order to deter predatory criminals from committing acts of violence and property crime.
In Blackstone’s time, an indictment charging a felony stated that the offence had been committed “against the peace of our lord the king.”
In reality the promised “peace” amounted to keeping a lid on rampant crime with sentences of penal servitude (for life or any lesser period but not less than three years in any designated place) or through imprisonment for up to three years, with hard labour, within the walls of a gaol. That the pendulum of criminal justice had begun to swing away from the harsh treatment of convicts is evidenced by the fact that in 1948, England abolished these punishments and substituted punishment by ordinary imprisonment.
You may wonder whether our federal government is obligated to provide Pax Regis/Regina.
It is. Our founding constitution, the British North America Act, 1867, enshrined the Queen’s peace in simple language.
“Powers of Parliament: Section 91. It shall be lawful for the Queen, by and with the advice and consent of the Senate and House of Commons, to make laws for the peace, order, and good government of Canada,” …
These two simple yet important words, peace and order, when placed in their historical context, are the legal DNA of the 1892 Criminal Code of Canada: criminal law very much a codification of English criminal law in which crime and punishment are inextricably linked.
The 1892 Criminal Code was subjected to a major revision in 1954. However punishment continued to be a reality facing convicts; whipping of male convicts could be ordered in serious cases of rape, armed burglary, robbery, sexual-intercourse with a girl under 14, indecent assault, drugging with intent, choking and strangling. Preventive detention loomed over habitual criminals. The pendulum of reform would soon end these obvious instances of cruelty.
Yet through the 1950s, peace and order continued to be secured by a reasonable likelihood of detection of perpetrators of crime; early and expedited trials; and the certainty of punishment by imprisonment.
Everything changed in 1959 when the conservative government under Prime Minister John Diefenbaker enacted the Parole Act. In practical terms it ended Queen’s peace and began the movement away from punishment to the cerebral high ground of rehabilitation.
In 1984, in his treatise The Breakdown of the Criminal Justice in Canada, retired judge Les Bewley aptly described the negative consequences of parole.
“Yet by the Parole Act and the National Parole Board, the legislative and executive arms (of government) have succeeded in massive fashion in doing through the back door what they are strictly forbidden to do through the front door. Fewer than three per cent of federal prisoner now serve the full sentences impose by the courts.
“As a direct result … no trial judge in Canada has any expectation that his sentence will be honoured; the worth of judicial coinage is shamefully debased; the hard and dedicated work of police officers is mocked; and every crook or would-be crook is vastly encouraged to commit even more crimes, and is not deterred, because he knows full well that the court’s sentence – to put it politely- isn’t worth spit.”
Once parole was in place, anything-but-punishment reform quickened. Judicial elites, criminologists, and organizations working to improve the conditions for penitentiary inmates persuaded successive federal governments to adopt a sympathetic rather than punitive approach to criminal behaviour: rehabilitation over punishment.
By the 1970s, no-nonsense crime-and-punishment criminal justice was put to rest. Its epitaph is memorialized in proceedings of the House of Commons on Oct. 7, 1971, when then federal solicitor-general Jean Pierre Goyer made the disclosure that “From now on, we have decided to stress the rehabilitation of individuals rather than the protection of society.”
What we have endured since then is make-believe criminal justice. It is all purposes and principles and no punishment.
The general public and victims of crime are lead to believe that each defined crime in our Criminal Code has ingrained in it an inevitable consequence of punishment.
The word punishment is not used in the section of the criminal code that states the fundamental purpose of sentencing. It rambles on about the need to contribute to respect for law and maintenance of a just, peaceful and safe society by imposition of just sanctions that denounce, deter, assist in rehabilitating, and promote a sense of responsibility in offenders. To confuse matters, the following section states a fundamental principle that a sentence must at the same time be proportionate to the gravity of the offence and the degree of responsibility of the offender.
As I was closing this commentary I stopped for a moment to glance at the Mar.16 Globe & Mail. In their crime section the lead article is headlined “B.C. has become a ‘safe place’ for drug trafficking.”
Folks, we have been hoodwinked by our politicians and judges.
We lock our doors, bar our windows – jailed as it were – while criminals and gangsters go about with impunity.
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That is the easy way out IMO. Police, judges, and crown prosecutors all share in the blame... for they all make deals outside of the court a regular part of the judicial system. They all trade justice for tale stories of bigger crimes for which all criminals can sing like a bird to escape their own crime. Judges above all have no one else to blame but themselves and their profession for allowing a mockery of justice to become the cultural norm in our judiciary.
As for the 'safe place for drug trafficking'... and then linking that to locking your doors, blocking your windows, while gangsters go about with impunity? This argument is full of holes.
First what drugs are you talking about specifically (Tylonal 3's, weed, pain killers, heroin, crack ect)? 99% of people that smoke weed have probably never met a gangster in their life, nor committed a crime outside of buy, selling, or smoking the stuff. Hard drugs like crack, crystal meth, or heroin on the other hand are a completely different story and to lump the two as one is an assessment of the two separate problems that is ignorant of their huge distinctions.
Second, it is not only drugs that drive gangster crime... the gangsters make huge money on prostitution, extortion, theft rings, loan sharking, slave trading, people smuggling, contra band importation of things like guns and stolen or otherwise banned goods. All of which are very nasty crimes on their own and often far more violent and organized than a drug vender on the street.
Thirdly, it should come as no great surprise that most of the gangster activity is done by recent immigrants that bring their home country connections and values to Canada... which is the foundation of their import/export business and related crime ventures. How some of these actors got into Canada in the first place is a huge question that goes unanswered when their bi-product of drug trade activity is only the visible manifestation of their criminal intent and activity.
Fourth point being that all this violence takes place with illegal imported guns that often wouldn't be legal in Canada anyways and these guns commit the crimes more often than not for personal vendetta's that have nothing to do with drug transactions.
I think the retired judge uses a medical problem to blame as an all encompassing source for the failures of the entire judiciary, police forces following up the serious crimes related to gangs, immigration Canada, boarder security, and the politicians that put ideology ahead of good public policy. Drug addicts will always be the easy scape goat for the commentators like Justice Wallace Graig that ignore the rest of the story no matter what the collateral damage to make an ideological point.
I noticed that Wallace Craig conveniently forgot about the Charter of Rights in his commentary?
I think it is good to make distinctions if we are to ever solve the problems of out of control gang activity. Its not politically correct to blame judges, lawyers, police, and immigration, but it is to call it an all encompassing drug problem... and that is the biggest part of the problem IMO.