I would like to lend my support to my own newspaper’s weekend editorial supporting Ontario Premier Doug Ford’s promise to start collecting better data on criminal re-offenders and offences committed by persons on bail. (And no, I didn’t write it.) Ford’s pledge is, at the moment, ill-defined; he made it in a July 29 press conference whose primary purpose was to pat himself on the back for finding funds for new police helicopters.
But the very idea of addressing a social problem by gathering quantitative information is so un-Canadian as to seem radical and startling. It certainly seemed that way to the lawyers and civil libertarians who freaked out at Ford’s mention of “accountability” for judges who fail to protect the public from criminal predators.
Judicial independence is an axiom of our constitution — but to the degree that judges become policymakers, which is perpetually increasing as they discover creative new applications of the Charter, their lack of oversight by elected legislators and by the voting public is also a serious and obvious problem, purely in principle. It is no wonder the legal guild takes fright at the notion of “accountability” if it is interpreted to mean that judges might be subject to enforceable performance measures or firing by a minister.
But, of course, the word “account” is visible in there, and measurement of a social crisis is necessary to establish that one exists, even if almost everybody believes it to exist. Our courts are the first to castigate a government that makes some legislative change affecting individual rights without an attempt at inquiry into its reasonability and urgency. Ford, in proposing to establish the dimensions of preventable re-offending, is doing exactly what a legislator hoping to reduce crime ought to do: gather numbers. Collect and publish information. And let us specify that we mean publish publish, in an open, dependable, accessible way, with maximum detail.
Frankly, Ford’s announcement seems as much as anything like a reaction to being backed into a corner by an unresponsive Liberal government, which controls bail policy and the content of the Criminal Code, and by judges, whose irrational bail and sentencing decisions flood what’s left of our news media. Provincial politicians are bound to be judged by voters on the perceived prevalence of crime, but about all they can actually do about it is to, well, buy more choppers for the coppers and start collecting local data about revolving-door justice.
Ideally, we might have a Criminal Code whose sentencing provisions adapted to changing patterns of criminal behaviour from year to year, instead of from generation to generation. Ideally, we might be able to have mandatory minimum sentences for some crimes; we might be able to adopt punishments of ascending severity for chronically repeated offences; we might even be able to establish three-strikes or 10-strikes or 30-strikes sentencing policies, especially with regard to violence. (Pick whatever number you are comfortable with, but please don’t tell us it’s impossible.)
And, ideally, it would probably be a good thing if we took the public nature of criminal justice half as seriously as the lawyers take judicial impunity, and considered making criminal records as widely available as they ought to be in the era of the internet, which is to say “Fully searchable from wherever you are reading this.” Indeed, we cannot really think of a convincing reason the sentencing records of individual judges shouldn’t simply be public and searchable.
The Constitution requires us to bestow virtually unconditional job security upon magistrates, and rightly. But, who knows — maybe their offices could have a buzzer or klaxon that goes off whenever someone is slaughtered or robbed or violated or terrorized as a consequence of one of their decisions. Set aside the facetiousness of this: is there anything in the Charter or our deep constitution that makes this impossible, or even inappropriate? “Transparency” is supposed to be another of our axioms, but one suspects it might be a word even more chilling to the bones of our ruling class than the closely related “accountability.”
National Post