Shifting Incentives in Criminal Courts

The vast majority of violent crimes are apparently committed by a very small number of repeat offenders. Keeping such offenders in prison could sharply reduce violent crime rates. That’s hardly breaking news.

It would be useful to know whether some judges presiding over Canadian criminal courts are more responsible than others for releasing repeat offenders over and over again.

Because we have to live with the consequences of violent crime, regular Canadians who aren’t public figures and don’t get armed security details would prefer it if repeat violent offenders were kept inside.

However, even assuming the government would respond to public demand, finding an appropriate legislative solution to the problem wouldn’t be easy.

For one thing, not all repeat offenders go on to commit new violent crimes. Statistics Canada numbers tell us that, overall, just 21 percent of all adult offenders will commit new violent offences within three years of release. And even among offenders with two or more convictions behind them, only a quarter¹ will commit new violent crimes within three years.

Which strongly suggests that justice wouldn’t be well-served by indefinitely detaining the 75 percent of the offender population who wouldn’t go on to violently re-offend. The trick is in identifying the 25 percent that’s dangerous.

Could judges be held personally liable for their bad decisions?

Probably not. Legislation that defines something like “negligent judicial release” or “reckless disregard for public safety” as actionable would probably be unconstitutional. That’s because such definitions could compromise judicial independence and immunity. Any judge could justifiably fear political pressure or unearned retaliation.

Even if all that was a good idea - and I’m not convinced that it is - barking up the constitutional amendment tree - even under the best conditions - is unrealistic.

Could mandated reviews help?

Legislation that would mandate Crown review for all serious violent release decisions could in theory make a difference. Those might also include:

• Triggering automatic hearings after any breach of an offender’s terms of release

• Requiring independent post-incident system reviews

• Enhancing reasoning requirements in high-risk cases

In theory at least, such reviews could force courts to more carefully consider decisions

But it’s complicated. For one thing, adding built-in reviews would place serious pressure on an already-overburdened court system. As it is, police often don’t bother arresting people who openly offend because they know there’s a virtually no chance the offenders will ever see the inside of a courtroom. Piling on hundreds of extra court procedures will only make things worse.

And you can be sure there would be Charter challenges. Even if the constitutional logic powering the legislation was sound, having to survive rounds of lawfare will definitely lower the odds of success.

Could Public Transparency Help?

It might be possible, using public court records, to build a database of all rulings that led to the release of repeat violent offenders who subsequently re-offended. Such data could be used to identify whether there’s a small number of judges who were responsible for most of the release rulings that imposed a violent cost on the community. Assuming that was possible, we could also identify those judges publicly.

To be sure, no one has a right to doxx court officials or expose them to abuse or unlawful persecution. But many court records are, by law, already in the public domain.

In 2024, according to public sector salary disclosure data for Ontario, the median salary for the 349 judges employed by the Ontario Court Of Justice and the Superior Court Of Justice was $359,134. That money comes with responsibilities to the people who pay it. It would be healthy for judges to have some skin in the game and take some responsibility for their choices.

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1. The data breaks that down further to report new violent offences are committed by 21.52 percent of non-Indigenous individuals in that cohort, and 33.73 percent of Indigenous offenders.