Globe and Mail

Crime and punishment the Canadian way

A bold and provocative look at our troubled justice system.
GETTING AWAY WITH MURDER: The Canadian Criminal Justice System

Saturday, December 19, 1998

By David Paciocco
Irwin Law, 417 pages, $29.95

One evening in 1993, Lisa Ferguson loaded a rifle and went looking for her husband. Finding him asleep on the couch, she shot him dead. It was her response to an abusive relationship. Charged with murder, Ferguson was eventually found guilty of manslaughter. Two years later, another Ottawa woman also shot her sleeping husband. Like Ferguson, Lilian Getkate was charged with murder, raised a battered-woman defence and was finally convicted of manslaughter.

Both women were sentenced to what is known as a conditional sentence of imprisonment. This means that they were sentenced to a term of prison, but one that would be served at home, under conditions many people would regard as quite lenient. For example, one of the conditions "imposed" on Getkate was that she "continue to maintain regular contact with her family."

Did these women get away with murder? Is a community-based penalty like this appropriate for an offender who has taken a life? These cases -- and many others, such as the plea bargain offered Karla Homolka and the life sentence imposed on Robert Latimer -- have tested the public's faith in the criminal justice system.

In this provocative new book, Getting Away with Murder, David Paciocco, a University of Ottawa law professor and former crown attorney, takes a fresh and bold look at the crisis of confidence in Canadian criminal justice. Little of interest -- and nothing of importance -- escapes his critical analysis. Sentencing, parole, the battered woman defence, the defence of drunkenness, the role of the victim -- all the controversial topics that have sparked debate in recent years are explored.

Paciocco identifies ways in which the criminal justice system has contributed to the crisis in confidence. One example concerns the conditional sentence that was imposed on the women who shot their abusive husbands. This new sentence was introduced in 1996 as part of a systematic reform of the sentencing process. Here's how it works: Having decided that a term of imprisonment is necessary, a judge then considers whether the sentence of custody can be served at home. A term of imprisonment served at home? If the offender abides by certain conditions, he or she will never even see a prison. Most Canadians will scratch their heads at a system that creates a fiction of this kind. The conditional sentence was created to reduce the number of admissions to custody. But should it apply to someone who kills a sleeping human being?

Another controversial issue Paciocco tackles concerns the rights of victims in the criminal justice process. Many people want to see victims given greater power over the treatment of offenders. This view has led to calls for victims to have a direct influence over plea bargaining, the sentencing process and even whether (and when) offenders should be granted parole. Paciocco takes a stand against this perspective. He reminds the reader that the criminal justice system is a state response to crime, not simply a device to compensate the victim.

Each chapter begins with an engrossing description of a murder trial. Some of these are famous trials from the past, others took place as recently as last year. Using the trial story as a point of departure, Paciocco explores the general principles underlying our system of justice. For example, more than a century ago, three British seamen and a cabin boy were forced to abandon ship and found themselves in a lifeboat thousands of miles from the African coast. They had little food and even less chance of rescue. Two of them eventually killed the cabin boy, and fed off his flesh to survive.

The sailors were miraculously rescued and brought back to England. Their joy at setting foot on land must have been tempered somewhat when they were subsequently charged with murder. The court grappled with the question of whether the men were justified by necessity in killing the hapless cabin boy. Paciocco proceeds from this case to a discussion of legal defences that allow the system to recognize human weakness in the face of adversity. The parallels with contemporary issues are clearly drawn.

Having charted a course through the troubled waters of Canada's justice system, Paciocco sounds his central theme: the importance of the rule of law. We are often impatient with the laboriously slow court system, which seems to provide too many protections for the accused. This book eloquently reveals the justification for these protections: They exist to protect the interests of all of us. The result is that occasionally some people may get away with murder, but the alternative is a system of justice built on sand.

Books that examine the criminal justice system tend to be either popular exposésor scholarly works aimed at a limited audience of professionals. The title of Paciocco's book suggests that it may be an example of the former. In fact, the book is nothing of the sort. True, he does identify many problems in the system that have contributed to the crisis in public confidence. But the book also provides a thoughtful analysis of the system. Whatever your position on the issues discussed here, this book will probably make you revise your opinions.

Getting Away with Murder makes an important and timely contribution to discussion of reforming our justice system. Anyone interested in crime and justice (and let's face it, this includes just about everyone) should read it. Along the way, they will learn a great deal about the law and the administration of justice.

Julian V. Roberts is a visiting professor of criminology at the University of Toronto, and the author of Public Opinion, Crime and Criminal Justice.

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