National Post

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Tuesday, May 16, 2000

Bill targeting judges draws fury from legal community
April Lindgren
Southam News

An Ontario government bill that would target "soft" judges is disgraceful, cheap politics, unconstitutional and will produce chaos in the courts, Ontario's legal heavyweights warned yesterday.

"It's a blatant attack on the independence of the judiciary, it's an attempt to intimidate judges into imposing higher sentences and that's simply inexcusable," Alan Gold, president of the province's Criminal Lawyers' Association, told reporters at a press conference where the proposal to track judges' sentencing records was thoroughly trashed.

The private member's bill was introduced last month by Marilyn Mushinski, a Tory backbencher, and has passed second reading thanks to hearty government support. The only Tory to vote against it was Garry Guzzo, an Ottawa-area MPP and a former provincial court judge.

The bill calls for an annual report to the Legislature detailing the sentences handed down by individual judges, the maximum punishment for the offence and any reason judges give for handing out more lenient punishments. The judicial report cards would apply in all cases where individuals plead not guilty to crimes with maximum sentences of five years or more.

In background documents supporting her bill, Ms. Mushinski says its goal is to present information that could be used for future performance reviews of judges and to pressure them to hand out tougher sentences.

Clayton Ruby, a high-profile Toronto lawyer and spokesman for the influential Law Society of Upper Canada, warned yesterday that the legislation could bring the criminal justice system to a "grinding halt." The courts, he suggested, would be swamped with thousands of motions brought by lawyers arguing that their clients are not being tried by an independent judiciary.

Mr. Ruby also predicted the law would crumble under a constitutional challenge because it has an unconstitutional purpose, which is to influence judges and how they sentence.

Jim Flaherty, Ontario's Attorney-General, took a very different view. "It's been suggested that the bill is unconstitutional, I can tell you that our position is that the bill is constitutional," he told reporters.

Mr. Flaherty, however, delivered mixed messages about how committed the Tories are to the bill, which now heads for committee hearings and will not likely get to the legislature for third reading until the fall.

"Most private member's bills do not proceed to third reading," the Attorney-General said at one point, adding that there are no plans for performance appraisal of judges. But he then defended the bill, insisting that it is not an attack on the judiciary and reiterating his support for "the principle of sentencing being reported and courts being open."

Mr. Gold, flanked by Mr. Ruby as well as representatives of the Advocates' Society (that represents about 2,300 lawyers who practise civil law), the Canadian Civil Liberties Association and the Law Union, grew more scathing as the press conference proceeded. After describing the bill at various points as cheap politics, scary and disgraceful, Mr. Gold attacked the Tories' sense of history.

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