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.
What's Really Going On in Canada's Criminal Courts?
Last week’s post on the disturbing mismatch between Toronto Police Services arrest rates and provincial criminal court caseloads seems to have hit a nerve. Why devote so much funding and manpower to tracking and arresting criminal suspects when you know 95 percent of their cases will never reach trial?
Has Canada's Criminal Code Lost Its Way?
I am neither a lawyer nor the son of a lawyer and, thankfully, I’ve never been dragged through the justice system as a participant. But that doesn’t mean I can’t have thoughts.
Understanding Systemic Unequal Treatment Before Canadian Criminal Courts
Equality before the law is a beautiful concept. But in Canada at least, it doesn’t always happen.
Unions definitely work to prevent these types of conversations from happening!
Great column David! If only a crime reporter (or any reporter) at a mainstream media outlet would take this kind of data-driven, objective approach.
In a lot of industries, there’s a mechanism to review adverse events after the fact, in the hopes of avoiding similar events in the future.
In medicine, for instance, certain events are reviewed, such as unexpected post-op deaths, or patients sent home from emergency who die unexpectedly.
NASA conducts reviews when their rockets blow up, as with the Challenger disaster.
One could imagine something similar in the legal system, where the legal histories of repeat offenders were reviewed, to see if things were done at previous sentencings, bail decisions, parole decisions, etc. that might have been done differently.