We Are Not Deterred

By Marcel Strigberger

We are all familiar with the Wilmot case; therefore I shall not mention it any further.

The Courts daily sentence individuals, citing general deterrence as the basis for the severity of the sentence. This is nonsense. In the words of one of my rounder break and enter clients, Poppycock!

As the media people do not report the outcome of most cases, how can the public be said to be deterred by what happens in some obscure provincial courtroom? In the absence of potential for publication and dissemination of courtroom dispositions, especially where the courtroom is near-empty, how can the presiding judge sentence an accused in the name of general deterrence. To do so is an error in law. I have successfully argued this thesis in fact in a number of (unreported) cases. The trick is to try to get your guilty pleas heard at the end of the Court day. Ask that the matter be held down until 12:55 p.m.
I had a shoplifting case just last week. When the Crown in making submissions said, "Your Honour, there's too much of this going around. We have to make an example of this accused and deter others," I interrupted and said, "But your Honour the courtroom is empty. News of this disposition will never leave the courtroom."

His Honour looked around the courtroom and said, "You're right Mr. Strigberger. Absolute discharge. Mr. Crown, had you called this case around 10:30 a.m., I would have given the accused 30 days."

I have however found this ploy to backfire. Recently a client of mine pleaded guilty to common assault. Our case was the last to be called. The Crown suggested that violence must be discouraged. When I submitted that no one would hear about this disposition in any event the judge nevertheless fined my client $250. He then ordered the Court reporter to tell everyone including the members of her bowling team about this case. I think the reporter outdid herself. A couple of weeks later I visited a local bowling alley and noticed the bulletin board which read, Mable Applebee 181, Cynthia Weeks 178, Maurice Archambault $250 for assault or 15 days in jail, 30 days to pay. I must say that the reporter followed His Honour's direction very religiously. I returned to the bowling alley six months later and saw a note on the board which read "appeal dismissed."

For general deterrence to work the system must ensure that news of all sentences reaches potential criminals. As it stands now it is not the criminals but the lawyers who are most familiar with current sentencing practices. I asked around and found out that most of my criminal clients do not subscribe to the C.C.C.s. Therefore it would be a worthwhile investment for the government to fund a digest of sentencing practices for distribution amongst the criminal elements. Like this sentencing judges would know that news of all sentences would reach those whom it is intended to reach. An abridged service would suffice. The language should of course be simple and concise and not laden with legalese. For example:

Regina v. Leroy - Robbery - two counts - accused said he was drunk - admitted he did a foolish thing - advised he was studying brain surgery at George Brown College - said he was starting a job on Monday - disposition: two years less a day.

The reports could either be sent to people with previous records or perhaps they could take the form of a weekly supplement to a heavily read and prestigious newspaper, perhaps the Toronto Sun. The supplement could even contain pictures, perhaps the sunshine accused of the week.

Theft incidents, especially shoplifting, would be drastically reduced if indeed general deterrence would be more effective. The Romans used to deter cowardice by making soldiers suspected of being less than brave in battle publicly walk under a yoke. Those watching would then think twice about in the future shirking the opportunity to rape, pillage, plunder and crucify.

This type of approach would work for shoplifters as well. An accused would be sentenced to attend at a local Shoppers Drug Mart on a busy Saturday afternoon and to walk under a yoke strategically placed at the front entrance in a busy shopping mall. A sign would read "These people were convicted of shoplifting here. They will be walking under the yoke at 2:30, 3:30 and 5:30 p.m." We could borrow a yoke from Black Creek Pioneer Village. A yoke per se is not necessary. A symbolic yoke would do. If for example someone shoplifts at a supermarket, say Miracle Food Mart, he or she could be made to walk under a large Shopsy's salami. It would still be walking under the yoke. In fact during the middle ages the Cossacks were known to walk under Polish sausages. Shoplifting amongst Cossacks was virtually unknown.

Humiliation is a far greater deterrent than a fine or conditional discharge. What happens in Court must be widely publicized in order for others to be deterred. Another possibility is audio broadcasting. As proceedings are already being recorded by Court reporters, the record could be reproduced on discs or cassettes and made available to the public. We can all think of wonderful judges whose judgments we could listen to over and over again on our stereos or whose judgments our clients could listen to over and over again on other peoples' stereos. As I still practice criminal law in Toronto and the surrounding area, I think it prudent not to nominate any Grammy winners. We may however not be far from the day when we will see a recording entrepreneur collect the best judicial sentences from all judges and come up with a record album entitled "Hooked on His Honour." This album would include such classics as "Eine Kleine jail sentence" and the "Courtroom 12 Overture." Of course should capital punishment ever return to Canada, a sequel record album would no doubt be called "Hooked on Swing." The records can perhaps be distributed by K-Tel and the K-Tel people would no doubt give away free copies of Polka Records with each "Hooked" record purchased. To get even we could ask American residents to add an additional 20 per cent of the purchase price.

The aforementioned methods would see general deterrence working and the crime rate plummeting. I would guarantee it, or your money back.

______________

© 2007 Marcel Strigberger. This article CANNOT be copied or reproduced in any way without the expressed written consent of the Author.