Globe and Mail

Province backs bid to track judges' record

Accountability bill infuriates legal community

Queen's Park Bureau, The Globe and Mail
Friday, May 5, 2000

Toronto -- The Ontario Progressive Conservative government is pushing through a law designed to make judges more accountable to public opinion, a move that has enraged the legal community.

Under the legislation, a registry would keep track of the sentencing record of judges and then publicize them.

The target of the proposed law is "lenient judges," who seldom impose the maximum sentence, said its author, Tory MPP Marilyn Mushinski. She said that the bill would set the stage for "performance reviews of judges" and predicted that, "in some instances, the registry [of sentences] will result in public pressure being placed on judges."

The measure, approved in principle by MPPs yesterday, has the support of Attorney-General Jim Flaherty and Premier Mike Harris.

"I think judges should be more accountable for their sentencing," Mr. Harris said when the legislation was introduced two weeks ago.

But it has drawn the ire of lawyers and judges.

"Requiring judges to forward to the government their reasons to justify why a lower sentence [than sought by the Crown attorney] may have been given would seriously erode judicial independence," according to Susan McGrath, president of the Ontario division of the Canadian Bar Association.

The proposed law would set the stage for another long-time Progressive Conservative plan, the establishment of a legislative committee to question judges on sentences they have handed out. Such a measure was proposed three years ago, but was killed by then-attorney-general Charles Harnick. He has since left the Tory government.

In addition to making judges "more accountable," in Ms. Mushinski's words, the measure would have the legislature propose a candidate to fill any vacancy from Ontario on the Supreme Court of Canada. But it would not be able to force the prime minister of the day to choose that candidate.

Ms. Mushinski said changes are needed on the Supreme Court because its decisions "have thrown obstacle after obstacle in front of our hard-working law-enforcement agencies."

The legislation has received the support of several cabinet ministers and many members of the Tory caucus. It is opposed by both the Liberals and the New Democrats, and by Tory backbencher Garry Guzzo, a former judge in Ottawa.

Ms. Mushinski said she introduced the plan to keep records on how severe judges are, because "courts are public places and we, as law-abiding citizens, have a right to examine the system and fix it if we find that it is not properly protecting us from crime."

While few pieces of legislation introduced by private members become laws, this one has been sent to the Standing Committee on Justice and Legal Affairs for consideration. That committee has already approved several of the Tories' stringent law-and-order bills, including the one banning squeegee kids and aggressive panhandling and the legislation setting up a registry of sex offenders.

Mr. Flaherty said when the legislation was presented that he supported it.

"I think the public is entitled to know what sentences are being handed down by judges," he said. "The courts of the province of Ontario are public courts. They are not the domain of lawyers and judges, they're the domain of the people of Ontario."

Neither Mr. Flaherty nor Mr. Harris was in the legislature to vote on the proposal yesterday, and neither was available to comment.

But the government's support was reiterated by Mr. Flaherty's parliamentary assistant, Gerry Martiniuk.

"We cannot underestimate the effect sentencing practices have on Canadian society as a whole," he said. Mr. Martiniuk noted that Mr. Flaherty recently told the province's Crown attorneys not to accept conditional sentences that can be served in the community for persons convicted of serious crimes.

Mr. Martiniuk also said that the Tory government wants the legislature to be able to nominate candidates for the Supreme Court. "Fundamental issues have been raised with the advent of the Charter [of Rights and Freedoms]. We believe it is important for the province to have input into who will be making these important decisions that affect the fundamental rights and freedoms of all Canadians."

The legislation would create a public registry of sentences handed down in serious criminal cases. It would list the name of the judge, the maximum sentence for the crime, the actual sentence the judge handed out, and any reasons the judge gave for handing out a sentence less than the maximum.

It also would have a provision allowing judges "to explain why they gave out a sentence less than the maximum," Ms. Mushinski said.

The legislation has been vigorously opposed by Liberal MPP Michael Bryant (St. Paul's), and by the Law Society of Upper Canada, in addition to the Candian Bar Association's Ontario division.

Robert Armstrong, treasurer of the Law Society, has written to Mr. Flaherty with a warning: "Any suggestion that the legislative assembly might provide for some form of review of the judges of the Superior Court of Justice and the Ontario Court of Justice raises the spectre of unwarranted interference with the independence of the judiciary."

He asked Mr. Flaherty to seek to have the legislation withdrawn.

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