Dan Gardner is the New York Times best-selling author of Risk, Future Babble, Superforecasting (co-authored with Philip E. Tetlock), and How Big Things Get Done (co-authored with Bent Flyvbjerg). His books have been published in 26 countries and 20 languages. Prior to becoming an author, Gardner was an award-winning investigative journalist. More >

The Conservatives Are Right. Sort Of.

It is a fact not often recognized in discussions about the Conservative government and criminal justice policy that the government is right. Not about the nature of the problems. Or about the solutions. But still, it is right.

It's right that there are problems. Big ones.

Canadian criminal justice is sclerotic. And unpredictable. Even where the facts of a case are clear, what a defendant will ultimately be charged with, and what sentence he is likely to get if convicted, are often impossible to know in advance.

Here's a simple example. A man points a gun at the clerk of a convenience store and demands money. He's arrested. You might assume he will be charged with armed robbery and sentenced to something like the average of sentences given to offenders like him who commit similar crimes in similar circumstances. That's certainly the just and appropriate outcome.

But look at the Criminal Code. There is a variety of offences he could be charged with. What the actual charge will be depends on the discretion of the prosecutor. This routinely means "charge bargaining" with the defence lawyer.

That's particularly true if certain facts - like, say, the use of a firearm - are ignored. Sound bizarre? It happens. It's called "fact bargaining."

In this example, the presence of a gun triggers a mandatory minimum sentence (which was passed by the Chr├ętien Liberals, incidentally). So the defence may have a chat with the prosecutor. And they may agree to a plea bargain: In exchange for a guilty plea, the gun disappears. Poof! The prosecutor gets a conviction and the defence gets a sentence that is less than the mandatory minimum. "It shouldn't happen," says Alan Young, a professor of criminal law at Osgoode Hall Law School and a veteran criminal defence lawyer. "But it does happen, all the time."

So there's uncertainty about the charge. But let's set that aside and assume our guy is charged with committing robbery with a firearm. What will the sentence be?

The Criminal Code says there is a mandatory minimum of four years. So that's the bottom end of the range. The top? Life in prison. Rather a large gap, isn't it?

Unfortunately, that's typical. The Criminal Code specifies no minimum for most charges. The maximums it mentions - usually two, seven, 10, 14, or life - are ridiculously high and hardly ever imposed. So the range of permissible sentences is often huge.

To narrow that down, the defence lawyer looks for similar cases involving similar defendants. "The sentence should be X," he concludes. The Crown does the same. In theory, they are both looking at representative cases so they should both draw the same conclusion.

But they seldom do. In fact, there is routinely a gap between the two sides' conclusion. One side says it should be lower; the other says higher. And by an amazing coincidence, it's always the defence that finds the lower sentence is the correct one and the prosecutor the higher. The two sides make their tendentious cases to the judge who then tries to make a decision with some basis in reality.

Which is hard. Because no one in this process actually knows what the truth is. "It's all impression," says Young. "I've done this myself as a lawyer. It's not clear that you're getting a representative sample. You may come up with three cases and there may be 30 cases out there."

The problems in the justice system have many sources but the fundamental one is the Criminal Code itself.

First created in 1892, the Criminal Code is now a huge, rambling, confused mess because for almost 120 years MPs have constantly added to it while seldom taking anything out. Everyone in the justice system knows that's a mistake. Everyone knows the Criminal Code needs the mother of all spring cleanings. But that would be a long, slow, difficult process with no political payoff - unlike adding stuff to the Criminal Code, which is quick and easy and a great vote-getter. So it's never been done.

The other problem is the Criminal Code's sentencing system. There isn't one. True, there are very broad guiding principles and appeals courts that try to impose some regularity on sentences. But with little guidance in the Criminal Code, and little statistically valid information available for lawyers and judges, uncertainties and disparities are inevitable.

In the 1980s, the Canadian Sentencing Commission recommended rigorous data collection and analysis be done. With solid knowledge about how offenders are actually being sentenced, a sentencing "grid" system would be created. Sentencing would become relatively transparent and predictable. But not automatic: Judges would be permitted to deviate from the ranges specified by the sentencing grid if they gave reasons for doing so in writing. In this way, certainty and discretion - both of which are essential to just sentencing - would be balanced.

That recommendation was shelved and forgotten. And there was never any chance Stephen Harper might dust it off. The Conservatives aren't big fans of data collection, after all. And rigorous analysis? No, that's not their thing.

It was also clear there wouldn't be a review and revision of the Criminal Code. The government made that clear shortly after taking power, when it closed the very institution - the Law Commission - which would have been ideal for the job.

And yet, we must give full credit to the Conservatives. They are right. The justice system has serious problems.

What they are doing will only make those problems worse. But still. They are right.