1 THE GROUND BENEATH OUR SPEECH: MORAL ORDERING IN PLEA-BASED CRIMINAL JUSTICE by Simon Matthew Owen B.A., The University of British Columbia, 2000 LL.B., The University of Victoria, 2005 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in The Faculty of Graduate Studies THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver) October 2010 © Simon Matthew Owen, 2010 ii ABSTRACT Moral ordering is fundamental to Canada’s criminal law and justice systems, and is most explicitly encountered in post-conviction sentencing proceedings. Beginning with the premise that the law’s order is founded upon both ‘universal’ wrongs and ‘individualized’ responses, this thesis considers some of the problems and opportunities that guilty plea-based resolution processes pose for the moral ordering that criminal courts are convened to undertake. Chapter One conceptualizes sentencing hearings as formal occasions for the expressive discernment and application of moral values. ‘Proportionality’, or the gravity of an offence and the degree of responsibility borne by an offender, is the guiding principle by which courts undertake this gauging. This chapter also considers how an offender’s normative orientation towards their criminal conduct (commonly expressed as remorse) informs sentencing hearings’ function as forums of moral enquiry and ordering. Chapter Two confronts some of the practical difficulties in plea and sentencing proceedings that inhibit and distort the moral ordering that the law aspires towards. The formation and use of guilty pleas, as the dominant means by which criminal charges are formally resolved, are examined for their capacity to open or constrict avenues of moral communication. Other mechanisms, such as the statutory-based tools of offender allocution and victim impact statements, are also assessed as means by which sentencing courts are able to act as forums of informed, dialogic moral ordering. Chapter Two also considers the influence that professional legal actors have in shaping and mediating the experience of lay participants in these forums. Chapters Three and Four present empirical research into how the law’s concern for moral ordering operates in sentencing courts, with particular regard to the engagement of offenders. Eleven justice system professionals, mostly lawyers, were asked for their perspectives and experiences, and observations of four provincial courts in British Columbia were conducted to analyze a court’s “moral speech”. It was observed that while a language of moral ordering could be heard in a majority of sentencing hearings, its expression flourished in contexts that afforded focus on an offender’s full circumstances, thus drawing upon both individual voices and shared values. iii PREFACE The empirical research contained in this thesis (the “Interview Study”) was approved by the University of British Columbia’s Behavioural Research Ethics Board (“BREB”), Certificate of Approval H09-02540. The Principal Investigator in the Interview Study, Professor Emma Cunliffe, is Simon Owen’s thesis supervisor. Professor Cunliffe collaborated in this research by overseeing Mr. Owen’s collection and analysis of the data collected under the auspices of the BREB-approved Interview Study. Mr. Owen was solely responsible for corresponding with interview participants and conducting interviews. 1 TABLE OF CONTENTS ABSTRACT ...................................................................................................................................................... ii PREFACE ....................................................................................................................................................... iii TABLE OF CONTENTS .................................................................................................................................... iv ACKNOWLEDGMENTS ................................................................................................................................. vii DEDICATION ............................................................................................................................................... viii INTRODUCTION ............................................................................................................................................. 1 CHAPTER ONE: The Moral Roots and Reach of Canadian Criminal Justice .................................................. 8 1.1 Introduction ................................................................................................................................... 8 1.2 The Anatomies of Authority .......................................................................................................... 9 1.3 The Morality in Liability ............................................................................................................... 11 1.3.1 A Crime is a Wrong .............................................................................................................. 12 1.3.2 A Crime is Unlawful ............................................................................................................. 17 1.3.3 A Crime is Voluntary ............................................................................................................ 18 1.3.4 The Commissioner of a Crime is a Responsible Actor ......................................................... 21 1.3.5 A Crime is Censured by the State ........................................................................................ 23 1.4 The Moral Proportionality of Punishment .................................................................................. 31 1.4.1 A Statutory Smorgasbord .................................................................................................... 31 1.4.2 The Criminal Code’s Purposive Tensions: Retributivism and Utilitarianism ........................ 33 1.4.3 Proportionality through the Eyes of the Beholder .............................................................. 35 1.5 The Moral Acoustics of Sentencing Courts.................................................................................. 37 1.6 Conclusion ................................................................................................................................... 44 CHAPTER TWO: The Moral Compromises of Guilty Plea Justice ................................................................. 46 2.1 Introduction ................................................................................................................................. 46 2.2 Diagnoses of Rushed Justice........................................................................................................ 48 2.2.1 A Snapshot of British Columbia’s Criminal Courts: Volume Overload? .............................. 50 2.2.2 Feeley’s Model of Pre-Sentence Procedural Sanctions ....................................................... 52 v 2.2.3 The Contorting Cultures of Courts ...................................................................................... 54 2.2.4 From General Critiques to Specific Enquiries: Focusing on Guilty Pleas ............................. 56 2.3 The Nature and Import of Guilty Pleas in Canadian Law ............................................................ 58 2.3.1 The Plea’s Essential Elements ............................................................................................. 58 2.3.2 The Plea’s Uncertain Meaning ............................................................................................ 59 2.3.3 The Plea’s Cross-Purposes ................................................................................................... 63 2.4 The Resilience of Plea Bargaining in Canadian Justice ................................................................ 64 2.4.1 Professional Perspectives .................................................................................................... 66 2.4.2 Offender Engagement in Plea Negotiations ........................................................................ 72 2.5 The Audible Promises of Sentencing Hearings ............................................................................ 75 2.5.1 Pre-Sentence Reports .......................................................................................................... 77 2.5.2 Victim Impact Statements ................................................................................................... 79 2.5.3 Offender Allocution ............................................................................................................. 81 2.6 The Ordering Influence of Professionals ..................................................................................... 84 2.6.1 Defence Lawyers ................................................................................................................. 85 2.6.2 Judges .................................................................................................................................. 90 2.7 Conclusion ................................................................................................................................... 92 CHAPTER THREE: Moral Ordering in Plea and Sentencing Proceedings – listening to the perspectives of legal professionals ....................................................................................................................................... 96 3.1 Introduction ................................................................................................................................. 96 3.1.1 Methodology ....................................................................................................................... 97 3.1.2 Thematic Overview ............................................................................................................ 100 3.2 Interview Findings ..................................................................................................................... 101 3.2.1 Morality’s Place in Criminal Court: An Essential but Contentious Relationship ............... 101 3.2.3 Approaches to Law’s Moral dimension(s) in Professional Practice .................................. 103 3.2.4 The Moral Content and Character of Guilty Pleas............................................................. 111 3.2.5 Sentencing Hearings as Forums for Moral Discernment, Dialogue, and Expression ........ 116 3.2.6 Overall Critiques of Sentencing Courts as Forums for Moral Expression .......................... 123 3.3 Conclusion ................................................................................................................................. 134 CHAPTER FOUR: The Audibility of Moral Ordering in Four Criminal Courts ............................................. 136 4.1 Introduction to the Observation Study ..................................................................................... 136 4.1.1 Study Courts ...................................................................................................................... 137 vi 4.1.2 Parameters and Methods .................................................................................................. 138 4.1.3 Defining “Moral Speech” ................................................................................................... 140 4.1.4 Weaknesses and Limitations ............................................................................................. 145 4.2 Four Courts; Four Staging Grounds for Moral Ordering............................................................ 146 4.2.1 Court 102 at 222 Main Street, Vancouver ......................................................................... 146 4.2.2 Vancouver’s Downtown Community Court....................................................................... 161 4.2.3 First Nations Court............................................................................................................. 176 4.2.4 Hazelton Circuit Court ....................................................................................................... 193 4.3 Moral Speech across the Study Courts: Influences and Import ................................................ 205 4.3.1 Findings ............................................................................................................................. 206 4.3.2 Conclusion ......................................................................................................................... 218 CONCLUSION ............................................................................................................................................. 223 BIBLIOGRAPHY ........................................................................................................................................... 228 APPENDICES .............................................................................................................................................. 238 Appendix A: Letter of Introduction to Observation Study ................................................................. 238 Appendix B: Interview Script (Crown Counsel) ................................................................................. 239 Appendix C: Interview Script (Defence Counsel) .............................................................................. 240 Appendix D: Interview Script (Courtworkers) ................................................................................... 242 Appendix E: Tables of Numerical Data ............................................................................................. 243 vii ACKNOWLEDGMENTS I received an abundance of support in undertaking this project. First, my empirical research was made possible by the justice professionals who participated in interviews and welcomed my presence in their work environments. The financial assistance provided by the Social Sciences and Humanities Research Council (SSHRC) allowed me to observe a northern circuit court and transcribe interviews without sacrificing basic nutrition. My west coast family provided so much more than basics while I was in Vancouver, while my community in Thunder Bay supported both my absence and return. This thesis was written on kitchen tables, campground benches, library carrels, and ferry decks from Victoria to Newfoundland; in all of these environments I encountered guidance and understanding. The greatest source of these qualities, however, came from a few special individuals. Professor Emma Cunliffe, my supervisor and constant support by way of various mediums, nurtured this work with her gentle yet incisive wisdom and shepherded me through attacks of insecurity and incoherence. If I didn’t emerge completely unscathed, it was not for her lack of effort. I am also very grateful to Professor Michael Jackson for his astute review of multiple drafts. Finally, while some things make more sense on paper than in practice (and some not even so) nothing makes sense without love. My wife Anne Nguyen shared every word of this thesis’ progression, as our daughter Lucy grew with it. Their joy, warmth, and inspiration lightened my load, and will always light up my life – I cannot thank them enough in any language. viii DEDICATION To Ronald Allan Spade 1 INTRODUCTION There is no such thing as an ordinary crime. There is no such person as an ordinary criminal. And, stripped of their legal, procedural, and symbolic sameness, there are no ordinary courts designed to impose an ‘ordinary’ response to such a diverse coincidence of actors and actions. Criminal law, nevertheless, seeks to read these stories in the light of an overarching narrative, an encompassing idea of order. Questions and contentions, of course, are unavoidable in these readings; courts are everyday battlegrounds – and meeting places – of interpretation and meaning. This thesis sets out to listen to some of these encounters. Two of Canadian criminal law’s most essential elements inform my inquiry. First, notwithstanding the normative diversities inherent in a multicultural, multinational society, the law in this area is characterized by its ‘universality’. The federal Criminal Code1 prescribes precisely which conduct is criminal, and the route that must be followed by the prosecuting state in establishing a given act’s culpable commission. The law’s universality, constitutionally enabled by s. 91 (27) of the Constitution Act,2 creates an overarching, undifferentiated fabric that blankets the country. What is unlawful in Corner Brook is also unlawful in Montréal and Igloolik, whether this is simple possession of marijuana or first degree murder.3 A second fundamental characteristic of Canada’s criminal law counterbalances the first. This is the broad judicial discretion embodied in the sentencing of criminal wrongs. The same statute that reduces an inexhaustible array of circumstances into each of its codified prohibitions also mandates that each case be individually, contextually considered in the determination of its most appropriate response. It is a commitment most succinctly articulated in s. 718.1 of the 1 Criminal Code of Canada, R.S.C. 1985 c. C-42 [Criminal Code or Code]. 2 Constitution Act, 1867, 30 & 31 Vict., c. 3 [also R.S.C. 1985, App. II, No. 5] [Constitution Act]. 3 Within this ‘universal’ legal structure, it must be noted, significant administrative variations do exist: by virtue of s. 92 (14) of the Constitution Act, Canada’s founding constitutional document, each province is authorized to articulate its own regime for how the operation of criminal justice are best organized, and there are also important variances contained in provincial and local policing and prosecutorial policies regarding the realization of the overarching law’s demands and aspirations. As we shall see, the latitude that this arrangement allows can be extremely important for the criminal justice system’s intended coherence; but it is this intentionality that I magnify and scrutinize as one of the system’s foundational basics. 2 Criminal Code, as the “Fundamental Principle” of sentencing: “a sentence must be proportional to the gravity of the offence and the degree of responsibility of the offender”.4 In order to most usefully explain, explore, and critique this dyad of the criminal law’s constituent features, an interpretive lens or lenses is required. How is the intended coherence of these elements best appreciated? By what means are their conflicts best critiqued? Among the many hermeneutic devices that may be used to approach these questions, this thesis advances the criminal law’s concern for moral ordering as its interpretive paradigm. This concern, I suggest, threads through the entire length of the justice system, from the codification of wrongs, to the procedures for how such wrongs should be resolved, to the resolutions themselves. I highlight the moral nature of this concern deliberately, but not without trepidation. At best, morality is an indeterminate concept, and direct experience confirms the awkwardness of its application in a legal context. My professional role in the criminal justice system is as a defence counsel, most recently in a northern region where First Nations communities co-exist with settler cultures, and where courts travel vast distances to import ‘justice’ to a diversity of local contexts. This thesis’ theme of moral ordering thus begs some crucial, pre-ordinate questions. First, whose morality do I privilege? The lack of absolute consensus as to morality’s content and demands is observable at an interpersonal level as much as it is between different communities of meaning. I experience these frictions regularly in my professional practice; while this scholarship concerns morality, therefore, it is offered neither as espousal nor repudiation of any of the normative orders that abide within the Canadian polity. Most notable among these, perhaps, are Aboriginal legal traditions. There is no shortage of commentary regarding the injustices that Indigenous nations have suffered at the hands of an ignorant or 4 Again, this invocation of principle bears qualification. At the post-conviction stage, the criminal justice landscape can be seen as –roughly – inverse from that described above in relation to the ‘basic’ universality of criminal prohibitions and procedures. While the fundamental ethic of sentencing law is discretionary, with individual judges determining the fitness of sanctions in individual cases, this discretion is significantly channelled; both broadly, in terms of the purposive principles that the Code sets down to guide judicial decision-making, and specifically, by way of prescribed maximum and, in a smaller but increasing number of offences, minimum punitive terms that must be given. As of 2010, however, the ‘individualized’ character of sentencing can still be discerned as its defining aspect, and it is the playing out of this discretion-based process that I assert as the second of Canadian criminal justice’s basic insignia. 3 outright malevolent state, no shortage of evidence that Euro-Canadian concepts of law and order have contributed to the imprisonment and impoverishment of an inexcusable proportion of Indigenous people.5 These failures are ongoing; a generation of inquiries, reports, commissions, and recommendations has yet, in my experience, to substantively ameliorate the justice system’s complicity as a source of such inequity. This thesis does not address arguments for Indigenous sovereignty over criminal justice, or for its reclamation according to Indigenous traditions and normative orders. What it does is critique the ‘official’, currently abiding law on its own terms, and test its accountability for the normative promises it makes. As will be explored within the work’s broader focus, some of the justice system’s most acute challenges in this regard arise in points of contact with Indigenous persons and communities. By observing some of these encounters, I hope readers may gain insight into how Canadian criminal law’s moral fundaments inform both its flexibilities and rigidities in regards to making space for diverse ideas and practices of ‘righting’ wrongs. A second major confrontation faced by scholarship taking a moral focus to criminal law is the justice system’s evident and enduring instrumentality, or, more simply, the desire to get things done. This concern is shared amongst its participants, lay and professional. My clients, predominantly, are hauled into the legal process with no end of other burdens and preoccupations, and they just want to resolve their cases as painlessly and speedily as possible. The crimes with which they stand accused are more often symptoms of shaky or shattered circumstances than the product of classical misfeasance. Boredom and bad examples bolster thefts. Alcohol, drugs, and inexpressible distress fuel violence. No one profits from such transgressions, and many are harmed. My profession enters onto this bruised ground, sworn to uphold accused persons’ legal and constitutional rights, to hold the state to its onus of proof by adversarial methods, and to act always in clients’ best interests from first consultation to final outcome. Our service, however, is often squeezed into the quick steps between bail hearings, plea negotiations, and summary submissions on sentence. Criminal courts, for their part, while 5 See e.g. Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada (Ottawa: Canada Communication Group, 1996). See also Patricia Monture-Angus, “Lessons in Decolonization: Aboriginal Overrepresentation in Canadian Criminal Justice” in David Alan Long and Patricia Dickason, eds., Visions of the heart: Canadian aboriginal issues (Toronto: Harcourt Canada, 2000) at 361. 4 obligated to deliver and oversee the equitability of the legal process and further the search for truth in every case, are pressed to balance these qualities against a desire for administrative efficiency. At this level of day-to-day operation, a focus on the system’s moral concerns seems palpably out of place; my colleagues tend to arch their brows when I speak of the law as thusly ordered or ordering. The criminal justice system can be understood – or withstood – on a number of bases. I am regularly confronted with the dissonance of a client who feels forced to use the language of guilt in relation to an accusation they don’t accept or understand, and my voice is too often heard in place of their own in making these admissions. These situations, unsatisfactory as they are, can seem unavoidable to lay and professional participants beguiled by countervailing demands. The system itself can seem little more than a mechanism for the administration of an authority that sustains the status quo and has little resonance for the disempowered people who are its constituents. The whole of it can seem at once coercive and impotent, pompous and hollow. While not discounting this solid shelf of observable meaning, my work attempts to understand and critique the law’s most ordinary activities by way of its underlying moral drives. There is something down there, and this thesis wants it told.6 Clearly, not all or even most of the justice system’s ‘ordinary activities’ can be scrutinized by a single piece of scholarship. I have chosen, therefore, to restrict my analysis to one pervasive facet of Canada’s criminal justice landscape: its predominantly plea-based means of resolving cases. Guilty pleas, by nature, dispense with the adversarial trial, arguably criminal law’s most procedurally and rhetorically well-developed feature. The contemporary manifestation and meaning of the fundamental legal principles of universality and individualization, I suggest, cannot be adequately understood without analyzing the most common procedural means by which prohibitions flow into punishments.7 6 This line is adapted, with apologies, from Gwendolyn MacEwan’s “Dark Pines Under Water”, published in The Shadow-Maker (Toronto: MacMillan, 1972). Full poem available in Canadian Poetry Online (Toronto: University of Toronto Libraries, 2000), online: Canadian Poetry Online <http://www.library.utoronto.ca/canpoetry/macewen/poem7.htm>. 7 While pleas and sentencing hearings are procedurally distinct steps in the criminal justice continuum, in the provincial level courts that handle the majority of criminal cases, they are often considered in immediate 5 My focus on the plea-based character of criminal justice also allows for a somewhat refined application of morality. The moral concerns that this thesis unpacks are solely those which speak directly to the wrongness of a criminal act and the degree of responsibility of an offender. This is the ordering, I suggest, which is embedded at the core of Canada’s criminal law, and which is most explicitly manifest in plea and sentencing proceedings. Each chapter builds upon this premise. In Chapter One, I lay out the moral concerns that are embedded in the criminal law’s prohibitions, and expressed in its processes and punishments. I show how assignations and calibrations of crime’s ‘wrongness’ arise throughout the system, from substance to operation to outcome. Chapter One, by way of a broad survey of leading theories, jurisprudence, and constitutional texts, demonstrates that moral ordering is essential to understanding the law’s framework of universal prohibitions and individualized sentencing. Chapter Two takes up plea-based resolutions as an opportunity to more closely reflect upon and critique the viability of the moral ordering identified in Chapter One. In particular, I describe the guilty plea’s hybrid status – it is a mechanism that functions simultaneously as substantive admission and procedural convenience. This dual function presents challenges for a plea’s givers, recipients, and the courts within which these exchanges take place. I explore what consequences the plea’s hybridity has for these players as they seek to discern, inform, or otherwise engage with the moral dimension(s) of a given offence. Given that in lower-level courts, pleas often lead immediately to dispositions, I proceed to scrutinize the sentencing hearing itself as the forum within which moral values and demands are meant to be discerned and expressed. Chapter Two mainly draws from published accounts of previous empirical studies of criminal pleas and sentencing courts. I also consider lawyers’ and judges’ perspectives in textbooks and trade journals, which provide insight into the critiques and strategic viewpoints emanating from within the system. My own experience as a criminal defence lawyer, although not directly relied upon to establish any particular claims, provides an interpretive lens through which I attempt to draw some general conclusions about discernable succession. While I am thus mindful of their distinctiveness, and seek to elucidate their interplay, my analysis inevitably shades one function into the other. 6 gaps between theory and practice in Canadian criminal justice, as they manifest in plea-based sentencing proceedings. Chapters Three and Four explore moral ordering in plea-based criminal justice by way of two parallel empirical studies, which contend with the question of how sentencing courts function as forums for the open consideration of the moral questions posed by every offence and every offender. These studies approach this question from two distinct but related directions. Chapter Three presents an interview-based study with eleven justice system professionals, mainly lawyers. Participants have direct experience working in certain criminal courts in British Columbia whose main or exclusive business is in the plea-and-sentencing (i.e. not trial) functions of criminal justice, and are thus able to offer important perspectives upon the moral ordering that these courts practice. Chapter Four undertakes an observation-based analysis of four such courts, each of which features a notably different context or approach to the sentencing of criminal offences. This chapter assesses each forum as a site for communicative moral ordering, by listening for how, and how often, some of the major themes of such ordering are articulated therein. Using the textual and jurisprudential organization of sentencing law as my guide for what courts ought to be expressing at this stage, I listen in particular for discussions regarding the gravity of an offence and the responsibility of an offender. I also attend to how an offender’s normative orientation towards his or her criminal conduct, such as remorse, is expressed and responded to at sentencing hearings. My thesis is focused upon the normative premises and aims of the criminal justice system’s operation, in particular their most ‘ordinary’ consummation in plea and sentencing proceedings. In essence, I explore this aspect of Canada’s justice system as it is in the light of what I suggest it intends to be. The thesis does not critique specific jurisprudence or set itself against alternate justificatory legal theories. My experience as a practitioner leads me to promote moral ordering as an important, albeit unorthodox, way of conceiving and critiquing the ambitions of an individualized sentencing regime. This same exposure to the practice of criminal law, however, also leads me to question its ultimate usefulness. Is an approach which prioritizes one normative understanding of criminality and its response adequately reflective of the needs and realities of the diverse individuals, communities, and circumstances that are 7 forced through courtroom doors? Does it neglect or distort the structural inequities that remain so evident in this coercive legal realm? My empirical findings illuminate how, and by whom, some themes of moral ordering are audibly conveyed in plea and sentencing proceedings in the four courts directly studied. In light of the purposive questions asked above, this research is also examined for what it may say about the universality of these themes, and the importance of their expression, within a guilty plea-based system of resolving criminal wrongs. 8 CHAPTER ONE: The Moral Roots and Reach of Canadian Criminal Justice 1.1 Introduction Moral ordering, although not the only interpretive rationale for the existence or purpose of criminal law, is nonetheless this body’s beating heart. In making this claim, I have adopted a particular definition of morality. Criminal law is moral, I propose, not because it is noble or divinely inspired, but because it is a manifest and comprehensively articulated means of identifying and addressing conduct that society explicitly deems to be unacceptable. Such official unacceptability, of course, does not on its own suggest or require moral wrongness; especially in a complex society, legal prohibitions are premised on a variety of purely instrumental bases, and accepted or resisted by their subjects in correspondingly instrumental ways. In this chapter, I support and explain the proposition that criminal law is indelibly moral by way of three more specific claims.1 First, I argue that the central concern of ascribing criminal liability is moral blameworthiness. Second, I show that, out of many possible goals of criminal punishment, Canada’s cohering punitive principle is moral proportionality. Third, I forward in-court plea and sentencing proceedings as the means by which the concern for moral ordering is most openly engaged. In supporting the above claims, I do not advocate for any particular normative approach to the law’s moral concerns, although in practice, the application of moral concepts does engender such judgments (indeed, I will argue that the calibration and expression of moral values is precisely the business and challenge of sentencing courts). Nor do I contend that criminal laws, procedures, and determinative outcomes can be validated or invalidated by recourse to any overarching moral framework, as a classical Natural 1 These claims are, however, being applied to the “general part” of criminal law. The literature in this area creates a rough distinction between doctrines, questions, principles etc. that are applicable to criminal law generally, and those that deal with specific types or classes of offences. See A.P. Simester and Stephen Shute, “On the General Part in Criminal Law” in Stephen Shute and A.P. Simester, eds., Criminal Law Theory: Doctrines of the General Part, (Oxford: Oxford University Press, 2002) at 1-12. 9 Law argument might hold.2 I suggest, more simply, that the concerns of blame and punishment infuse criminal law with moral consequence and responsibility. Individuals and societies may analyse any number of factors through this dimension, according to a spectrum of orientations. The moral dimension of a given society’s criminal law may, therefore, result in a similarly wide range of judgments or resolutions. Though by no means the sole measure by which criminal laws and legal decisions are made, I argue that this dimension remains vital to understanding their potency; not as mechanistic accounting (although rules may bend it so) nor as arbitrary imposition (although it is susceptible to disequilibria of power) but as ways to articulate what justice means and requires. As I will show, Canada has established a generally coherent liberal character – and consequent responsibilities – in this regard. I begin this chapter, therefore, with a very brief outline of the justificatory underpinnings upon which Canada’s criminal law is built. 1.2 The Anatomies of Authority Philosophers of justice have long tried to articulate the bases upon which punishment ought to be imposed. Aristotle, perhaps the first proponent of moral censure, grounded his thinking about punishment in the requirement of personal responsibility. In his view, which has since become a foundational principle in all criminal justice systems sharing a ‘Western’ philosophical heritage, no one can be justly punished without both having committed and being properly to blame for proscribed conduct.3 This normative framework, however, can be applied in various ways. Although all states make criminal laws, and prohibit many of the same acts, each jurisdiction imputes distinct standards and expectations upon its constituents. This is not simply due to diverse social or cultural mores. While I go on to examine the moral judgments that are embedded in and expressed by Canadian criminal justice, any discussion about crime can only be conducted within a particular political context. As 2 See Howard P. Kainz, Natural Law: An Introduction and Re-examination (Peru, IL: Carus Publishing Co., 2004) at 76-79. 3 George P Fletcher, The Grammar of Criminal Law, vol. 1 (New York: Oxford University Press, 2007) at 9. 10 George Fletcher argues, the two concepts are distinct: “[t]he political addresses the power and prerogatives of state officials…the moral focuses primarily on the lives of individuals, both in their personal flourishing and in their relationships with other individuals”.4 He goes on to suggest that a given state’s political theory precedes and encompasses any particular moral rationale it employs for prohibiting and punishing an act as criminal: It is only when a political theory makes reference to a moral question that the latter can become relevant in criminal law… [because] the criminal law addresses the state’s authority to intervene in people’s lives. That authority must first be justified as a matter of political theory before one turns to the criteria, including perceptions of morality, that might enter into the use of the state’s power.5 These broad political theories, from least to most interventionist, range from Libertarianism to Liberalism, Communitarianism to Perfectionism. Each justifies a different range of approaches and responses to what is captured as criminal wrongdoing, and each harnesses a different kind of moral order. As Fletcher summarizes: Libertarians treat the subject as an autonomous person abstracted from society. Liberals are likely to see the potential defendant as a citizen in a broad sense, as someone participating in a political community. Communitarians see him or her as a citizen in a narrower sense, as a brother or sister, as friend, and potentially, as the enemy. The perfectionist sees the same subject of the law as a novitiate undergoing an educational process.6 The application of each theory to a state’s criminal law would, as it were, ‘naturally’ result in variation of prohibitions and punishments. At the far end of the intrusiveness (or cohesiveness) spectrum, a society intent on homogeneity would have no qualms about ‘correcting’ even slight deviations from the established norm through a criminal process. At the other extreme, societies that emphasize liberty would require more significant disruptions in the social fabric (to the extent this fabric is seen to exist at all) before employing legal force. Further, they would likely proceed on a more purely utilitarian basis, without any intentions of morally (re)educating or condemning their 4 Supra note 3 at 152. 5 Ibid. at 154. 6 Ibid. at 180. 11 subjects. Although these are fluid categories that, in practice, blend into each other, the political theory that animates and explains western criminal justice systems, including Canada’s, can be said to be essentially liberal.7 This classification will be reappraised at various points throughout the thesis. As we shall see, a state’s informing political theory has immediate implications for how conduct is both defined and responded to as criminal. Having, briefly, noted the political framework upon which Canada’s criminal law is built, I turn now to this chapter’s central investigation, concerning the fundamentally moral demands and promises that are made in this legal realm. Canada’s incarnation of Aristotle’s ideas of what is just in criminal law, I suggest, can be discerned via three of its core characteristics: the blameworthiness of liability, the proportionality of punishment, and the sentencing court as embodied, expressive linchpin of the universality and individualization combined in these concepts. I expand upon each of these criteria in turn, as interrelated aspects of the moral order set forth in Canadian criminal law. 1.3 The Morality in Liability One way to enquire into the scope of what is authoritatively considered “criminal” in Canada, as well as the justifications for such designation, is by way of section 7 of the Canadian Charter of Rights and Freedoms (the “Charter”).8 This section states that “[e]veryone has the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”. These guarantees, and the Charter generally, have been interpreted by the Supreme Court of Canada to apply to the substance of criminal law, not merely its operation.9 That is, subject to certain constitutional limits, no Canadian Parliament can criminalize behaviour or circumstances the law thereby infringes an individual’s constitutional right 7 See, for general support of this designation, as well as an expansive envisioning of its demands, Alan Brudner, Punishment and Freedom: A Liberal Theory of Penal Justice (Oxford: Oxford University Press, 2009). 8 Part I of the Constitution Act, 1982, enacted by Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11 [Charter]. 9 See Reference re s. 94(2) of the Motor Vehicle Act(British Columbia) Section 94(2),  2 S.C.R. 486 (S.C.C.) for Lamer J.’s comments on this point. 12 to be free of prohibitions that are not ‘fundamentally just’. Below, I employ this basic requirement to describe the moral ordering premised in – and promised by – Canadian criminal law. Five elements, I suggest, provide the necessary layers of this foundation: as I proceed to explain, all crimes, to be established as such, must be wrong, unlawful, voluntarily committed by a responsible actor, and censured by the state.10 1.3.1 A Crime is a Wrong To be a crime, any given conduct must be cast as wrong. This is morality’s most basic and profound entrée into the question of what is properly ‘criminal’. It must be clearly defended and explained, because it raises implications that are potentially dangerous to Canada’s politically liberal identity. While this thesis posits an essential connection between wrongful conduct and criminal liability, the former concept is clearly much broader and more nebulous than the latter. Not every moral wrong, however widely or deeply held as such, is prohibited by law. The validity of this separation (if not its appropriate scope) seems firmly entrenched as a tenet of Canada’s liberal identity.11 But what guarantees the reverse proposition – that each and every crime must be established, or at least coherently argued, as morally wrong? One school of legal theory suggests that this need not be a requirement at all. Legal Positivism is, at base, a refutation of the classic Natural Law precept that laws cannot be valid or ‘true’ laws if they do not possess some basis in extrinsic moral standards.12 All that is necessary for any conduct to be properly criminalized, so the argument seems to lead, is a sufficiently clear proclamation from the appropriate source. In regards to criminal law, however, positivism’s claims are somewhat muted. H.L.A. Hart, 10 See, for representative sources, the Law Commission of Canada’s 2003 discussion paper What is a Crime? Challenges and Alternatives (Ottawa: Her Majesty the Queen in Right of Canada, 2003), online: Law Commission of Canada < http://epe.lac-bac.gc.ca/100/206/301/law_commission_of_canada-ef/2006- 12-06/www.lcc.gc.ca/about/2003_dis_paper_toc-en.asp>, and Jeremy Horder’s article “Criminal Culpability: The Possibility of a General Theory” (1993) 12 Law & Phil. 193. I include other sources in the discussion below. 11 While Canada’s mainstream political parties, whether called Liberal, Conservative, or any other name, do have different ideas as to where the criminal law and matters of purely moral opinion ought to diverge, there does not seem to be serious disagreement as to the importance that some distinction between these spheres ought to be maintained. 12 See John Gardner, “Legal Positivism: 5 1/2 Myths” (2001) 46 Am. J. Juris. 199. 13 positivism’s leading 20th Century proponent, devoted considerable thought to crime and punishment, and while disavowing that criminal law requires a moral justification, he recognized, both as a matter of fact and of good public policy, that it draws substantial authority from, and indeed is important in shaping and reflecting, moral norms.13 In principle, positivism is concerned to show that the classic Natural Law precept of law’s basis in morality is neither universal nor necessary, but most positivists acknowledge their practical correlation. From a theoretical perspective, therefore, criminal law’s basis in moral standards is a mark not so much of its validity as of its virtue. This thesis takes no contention with this general proposition. But there is reason to believe that, in Canada at least, the requirement that criminal laws be justified as morally wrongful (by more than authoritative fiat) is indeed essential to the state’s use of this power. The first place we must turn to in finding evidence for this proposition is in Canada’s constitutional division of legislative authority, and the federal power over criminal law that falls under s. 91 (27) of the Constitution Act. Unlike in states with a unitary system, the federal government has had to justify the bases upon which it seeks to make criminal prohibitions. The link between what can be appropriately designated ‘criminal’ and a threshold of moral ‘wrongness’ began to take shape early in the Supreme Court of Canada’s jurisprudence regarding s. 91(27). In Reference re Validity of s. 5(a) of Dairy Industry Act (Canada),14 the Court restricted the purpose of criminal legislation, as a requirement of its validity, to combating “some evil or injurious or undesirable effect upon the public…”.15 These effects were broadly construed, however, to attach to a wide range of “social, economic, or political interests”, and so long as the state could point to the protection of such an interest as underpinning a given piece of criminal legislation, it was not required to articulate any further, explicitly ‘moral’ justification for its classification as such. The ‘wrongness’ of a criminal act could thus, in law, have remained an unquestioned, even irrelevant matter; perhaps self-evident in most cases, 13 H.L.A. Hart, “Positivism and the Separation of Law and Morals”, (1958) 71:4 Harvard L.R.1 at 6-7. 14  S.C.R. 1 (S.C.C.) [Margarine Reference]. 15 Ibid. at 49. 14 but beyond the realm of contestation in the crucial few where it might have made a difference. With the advent of the Charter, however, the Supreme Court was given a significantly more expansive opportunity elaborate upon criminal laws’ requisite procedural and purposive content, as applied to the individual rights and freedoms that these laws necessarily curtail. According to the principles of “fundamental justice” that the Court has thus far outlined, criminal laws cannot be “arbitrary or irrational”.16 They cannot impose punishment without a minimum of proven fault.17 They cannot be unduly vague.18 And they cannot, as I argue in this chapter, prohibit conduct that a state has not established as being, according to a “significant societal consensus”, morally wrong.19 But of course these requirements demand refinement. The ‘common’ moral ground from which criminal laws may potentially grow can be, in some cases, quite meagre. This reality, which is perhaps most pronounced in divided, turbulent, or simply normatively diverse societies, continues to be of concern in contemporary Canada. In a society with entrenched constitutional guarantees of liberal freedoms, what are the markers and boundaries of the moral justifications of criminal law’s authority? Disputes about the law’s appropriate margins offer clues into what sustains its core. And there are, perhaps, few criminal laws more disputed than that which prohibits the possession of personal quantities of marijuana. The Supreme Court of Canada, in R. v. Malmo- Levine; R v. Caine,20 adjudged the constitutionality of this very law, and in doing so directly tackled the issue of whether the state can criminally prohibit ‘harmless’ conduct. In this case, a 6-3 majority held that, while the criminal prohibition of marijuana may be a dubious or disproportionate means of addressing the harm this substance causes, as a matter of “law, not policy”,21 it was confirmed as constitutionally valid. In arriving at 16 R. v. Malmo-Levine; Rv. Caine,  S.C.R. 571 [Malmo-Levine] at para. 135. 17 Reference re s. 94(2) of the Motor Vehicle Act(British Columbia), supra note 11 at 518-519, 521-522. 18 See eg. Canada v. Pharmaceutical Society (Nova Scotia)  2 S.C.R. 606 (S.C.C.) at 643. 19 R. v. Malmo-Levine, supra note 16 at para. 113. 20 Ibid. 21 Supra note 16 at para. 90. 15 this conclusion, the majority refused to accept the appellant’s assertion of the classic libertarian ‘Harm Principle’ as a principle of fundamental justice under s. 7 of the Charter.22Justices Gonthier and Binnie, writing for the majority of the Court ,ruled that this theory’s articulation of what justifies state intervention – namely, and solely, conduct that causes “clear and tangible harm to the rights and interests of others”,23 provided an insufficiently comprehensive basis upon which other justifiable aims of the criminal law could be directed. Their decision quoted. Hart when defending criminal legislation as properly pertaining to a more “complex” spectrum of interests: Mill's formulation of the liberal point of view may well be too simple. The grounds for interfering with human liberty are more various than the single criterion of 'harm to others' suggests: cruelty to animals or organizing prostitution for gain do not, as Mill himself saw, fall easily under the description of harm to others. Conversely, even where there is harm to others in the most literal sense, there may well be other principles limiting the extent to which harmful activities should be repressed by law. So there are multiple criteria, not a single criterion, determining when human liberty may be restricted.24 But while the prevailing judgment in this case explicitly disavowed the paramountcy of the Harm Principle per se, it did cast the criminal law as necessarily targeting, if not solely harm to others, then harm to “some fundamental conception of morality”,25 so long as such standards were proven to be “integral to our ideas of civilized society”.26 The requirement of some harm to some valid state interest, therefore, was implicitly upheld. The majority in Malmo-Levine did find that the state had sufficiently established that unregulated marijuana use did constitute harm to a valid state interest (here, the protection of vulnerable groups of actual or potential users) that was more than trivial or insignificant, thus justifying its continued prohibition. 22 See John Stuart Mill, On Liberty, Currin V. Shields, ed. (New York: Liberal Arts Press, 1956). 23 Supra note 16 at para. 107. 24 H. L. A. Hart, "Immorality and Treason" (1971) Morality and the Law 49 at 51, as quoted in Ibid. at para. 109 (emphasis added in ibid). 25 Supra note 16 at para. 116, quoting Sopinka J. R. v. Butler,  1 S.C.R. 452 at 498 (emphasis added in ibid). 26 Ibid. at para. 118. 16 The reasoning in Malmo-Levine, while finding its justificatory basis for the prohibition of marijuana in the language of harm, also acknowledges the justifiability of criminalizing conduct that is even less apparently harmful, such as bestiality or incest.27 It is in regards to offences such as these that that other moral justificatory principles can be seen to exert continued force. According to George Fletcher, there are two other moral concepts besides that of harm capable of justifying criminal prohibitions: Duty and Norm.28 The former, very much rooted in ancient and theistic relations between subject and sovereign, has very limited resonance in liberal polities, implicating as it does the surveillance of “desires, thoughts, [and] intentions” without proof of resulting harm.29 In contrast to harms, which are palpable, duties “exist only in the minds of those who say they exist”.30 The latter justification, that regarding breaches of norms, can be understood as a refinement or expansion of the harm principle, but also as a separate moral foundation for certain legal prohibitions. As Fletcher argues, our moral ideas of acceptable or unacceptable conduct do retain palpable influence; for example, in regards to the availability of defences (such as duress or necessity) or excuses (such as self-defence or, in some cases, consent) for crimes that actually have caused palpable harm to a protected interest. It is useful here, Fletcher suggests, to focus in on precisely what conduct is prohibited: not harm-risking or -causing conduct per se, but a particular norm against doing so with or without certain factual requisites.31 When it comes to substantive justifications for what are apparently norm-based criminal offences, however, it seems that in the Charter era, neither courts nor legislators are comfortable with explicitly endorsing this moral principle. As can be seen from the Supreme Court’s reasoning in Malmo-Levine, norm-based justifications are usually characterized as other ways to understand harm, or, when they have to be directly confronted, found inadequate as a distinct basis for criminalizing ‘harmless’ conduct. In 27 See Ibid. paras. 117-118 for the majority opinion’s discussion of these and other ‘harmless’ crimes. 28 Supra note 3 at 37-43. 29 Ibid. at 38. 30 Ibid. at 39. 31 Ibid. at 42. 17 R. v. Labaye,32 for example, the Supreme Court redefined indecency (in the context of the Criminal Code’s s. 210(1) prohibition on keeping a “bawdy house”) to impart a harm- based rationale. Chief Justice McLachlin rejected an older definition based on community standards of tolerance, suggesting that the “requirement of a risk of harm incompatible with the proper functioning of society” is the only legitimate basis for criminal offences.33 A society’s moral norms, therefore, are perhaps best understood as explicitly obsolete as justification bases for criminal prohibitions, but implicitly present along the margins and at the depths of what we continue to call crimes. Certainly, the Criminal Code is far from being a completely cohesive or coherent piece of legislation. It contains provisions based on antiquated or discredited moral principles, and offences whose criminalization arguably causes more harm than it prevents. But it is by the cases on the penumbra, I suggest, which are most likely to fall into disuse or eventually be abolished altogether, that the general proposition is proven: the vast majority of criminal offences in Canada are predicated on a theory of harm, a core of normative moral opprobrium that is (intended to be) common to the diverse constituencies that the law binds. Not all harms are crimes, but (almost) all crimes are also, in an apprehended or actual sense, in a strict or expansive understanding of the term, ‘harmful’, and, by the establishment of this connection, thereby wrong. 1.3.2 A Crime is Unlawful The second element I propose is more straightforward than the first, although it also merits far more discussion that I will allow for here. A wrong, however heinous and harmful, cannot be responded to through criminal legal means if it is not made to fit within a pre-existing, promulgated statute.34 It must be defined and proscribed by law. Different legal theories have different ideas of what is legislatively required to constitute ‘law’, but they can be fairly synthesized in the Canadian criminal law context. H.L.A. 32  3 S.C.R. 728 (S.C.C.). 33 Ibid. at para. 24. 34 With very limited exceptions, ‘common law offences’ (crimes not based in statute) do not exist in Canada, by virtue of s. 9 of the Criminal Code of Canada, R.S.C. 1985, c. C-46. In this sense all mala in se are also mala prohibita. 18 Hart thought that it was enough that statutes provide persons with “fair opportunity” to know and obey the law, in order to justify the application of penalties upon those who do not.35 Lon Fuller presupposed an “inner morality” that mandated certain core aspects of fairness, universality, prospectivity, etc.36 As we have seen above in the Supreme Court of Canada’s jurisprudence on the requisite principles of fundamental justice, and as Canada’s abiding adherence to Rule of Law principles of procedural justice suggest, this country’s criminal laws are expected to exhibit a high degree of specificity and intelligibility. Indeed, the Charter itself explicitly enshrines the principle of prospectivity, at s. 11(g). The consequence of these relatively stable and widely accepted justificatory legal requirements should, in theory, tightly circumscribe what harmful conduct the law is able to pursue. Morally speaking, Canada’s justice system is designed to ensure that it penalizes only those who have been reasonably (if not personally) warned about the unlawfulness of their behaviour before committing it. In most cases, this is presumed by virtue of the ‘common’ morality upon which criminal prohibitions are founded. But since awareness of the law cannot be guaranteed or proven, s. 19 of the Criminal Code provides that “[i]gnorance of the law by a person who commits an offence is not an excuse for committing that offence”, provided that a manner of ‘fair warning’, assessed in terms of the above principles, has first been given. 1.3.3 A Crime is Voluntary The requirement that criminal conduct be voluntary is further indication of the criminal law’s concern with moral blameworthiness. As with the concept of ‘wrongness’, this term also requires considerable refinement and explanation; unlike the moral concept discussed above, however, voluntariness is more a term of legal art than of common consensus. But beginning at this level of common sense, it is already evident that physically or mentally involuntary actions do not easily lead to findings of fault, the lifeblood of criminal culpability. When issues of voluntariness are raised in criminal 35 H.L.A. Hart, The Morality of the Criminal Law (Jerusalem: Magnes Press, 1964) at 27. 36 Lon Fuller, The Morality of Law (New Haven: Yale University Press, 1964). 19 court, however, the law has fashioned its own somewhat esoteric definition of this concept’s meaning and applicability. This is, perhaps, due to the fact that voluntariness does not become legally relevant until after a person has committed an otherwise criminal act. Legal authorities are concerned not to allow the concept expansive scope, and as is discussed below, certain serious harms have occasioned attempts to dilute or do away with the defence of having ‘involuntarily’ committed a crime. At minimum, however, a nub of avoidable conduct (or a failure to act when action was clearly needed) without which the wrong would not have taken place, must still be found before the actor can be lawfully sanctioned. In Canada, Parliament and the Supreme Court have engaged in considerable ‘dialogue’ around the issue of whether extreme intoxication renders criminal acts involuntary37, for example, or when mistaken belief in consent in cases of alleged sexual assault can operate as a defence.38 Where the defence of involuntariness is refused, either by statute or common law, the rationale seems to be that the actor opened himself up to moral censure by his causational recklessness or wilful blindness to the harm he subsequently caused. The parameters of fault have also been drawn to exclude situations where an actor’s otherwise voluntary criminal conduct was the result of duress or necessity. This ‘moral involuntariness’ was most expansively articulated by the Supreme Court in the case of R. v. Ruzic.39 In this case, the Supreme Court confirmed that s. 7 of the Charter incorporated a necessary aspect of “moral blameworthiness”,40 and extended the statutory defence of “compulsion by threats”41 to include situations (such as that Ms. Ruzic found herself in as a coerced importer of narcotics into Canada) where the duress, although not immediately proximate in space or time, was nonetheless sufficiently inexorable as to remove any ‘realistic choice’ not to engage in the criminal act. This 37 See R. v. Daviault,  3 S.C.R. 63 (S.C.C.) and Parliament’s ‘response’ in s. 33.1 of the Criminal Code. 38 See for ex. R v. Pappajohn,  2 S.C.R. 120, R. v. Sansregret,  1 S.C.R. 570, and s. 273.2(b) of the Criminal Code. 39  1 S.C.R. 687. 40 The defence of moral blamelessness, in relation to the defence of necessity, was first upheld in R. v. Perka  2 S.C.R. 232 at p. 269-270. 41 Criminal Code, supra note 34 at s. 17. 20 exemption, however, is statutorily excluded from crimes of serious violence.42 The differences of opinion between courts and Parliament on the scope and meaning of voluntariness-based defences illustrate conflicting moral perspectives. The law-making authority, in this realm, commonly focuses on the objective wrongfulness of the act, while courts are more willing to consider the subjective state of mind of the actor. While subjective intention is the most unequivocal measure of the mens rea, or “guilty mind”, requirement of criminal liability, less purposeful states of mind can also ground culpability. The applicable standard, sometimes codified or embedded within statutory language but always subject to contextual interpretation, is dependent upon the seriousness of the offence and/or the degree from which the conduct at issue departed from that expected of a reasonable person. In cases that aren’t likely to incur heavy penalties or social censure, and particularly where the accused’s subjective mental state would be very onerous to prove, objective negligence has been found sufficient.43 In more serious offences, s. 7 of the Charter has been applied to require either subjective intention or “gross” negligence.44 A line of jurisprudence has also described the difference between crimes of ‘specific’ and ‘general’ intent, with the former requiring a higher degree of mens rea to establish culpability. Whatever the formula employed, an attempted balancing can be perceived in this ongoing dialectic, between the repugnance that society attaches to certain acts, and the level of mental awareness and foresight deemed necessary to open individual actors up to censure. Moreover, these connected qualitative assessments - of repugnance and censure – are themselves mobile along a spectrum of moral blameworthiness that is calibrated not only to the harm (such as causing another person’s death) but also to assessments of why it happened (was it an accident? Was the accident someone’s fault? Was the fault excusable, or egregious?). This often awkward and uneasy interface between conceptions of moral ‘good’ (that law must respond to harm) and moral ‘right’ (that law 42 Ibid. and see R. v. Sandham  O.J. No. 4471 (Ont. S.C.J.). 43 See R. v. Hundal,  1 S.C.R. 867 (S.C.C.) at para. 15. 44 See R. v. Creighton,  3 S.C.R. 3 (S.C.C.) affirming that gross negligence could ground a conviction of manslaughter, and R. v. Martineau,  2 S.C.R. 633 (S.C.C.) requiring proof of subjective foresight for a murder conviction. 21 can only respond to culpable actors) is moderated, in Canada, by “the principle of fundamental justice that the moral fault of the accused must be commensurate with the gravity of the offence and its penalty”.45 The law’s interpretation and application of ‘fault’ cannot be reduced to simple principles, and much nuance has been lost in the foregoing discussion. In general, however, our criminal law tends not to hold persons accountable for conduct they could not avoid – and does so out of a concern both for individual and institutional moral integrity. 1.3.4 The Commissioner of a Crime is a Responsible Actor A fourth plank in the foundations of criminal law – that an act, however wrong, prima facie illegal, and voluntarily committed, cannot be a crime unless committed by a responsible actor, places further moral constraints on what is properly ‘criminal’. The most clear-cut of these is age – Canadian law maintains that persons under the age of twelve are not sufficiently advanced in their moral development to be held accountable for their conduct. For similar reasons, pursuant to the Youth Criminal Justice Act,46 youth between the ages of twelve and seventeen are approached in a manner that recognises their immaturity, although youth does not wholly excuse criminal conduct.47 45 R. v. Creighton, ibid. at paras. 46-47 (per McLaughlin J.). 46 S.C. 2002, c. 1 [YCJA]. 47 See R. v. D.B.,  2 S.C.R. 3 at paras. 40-42 (per McLaughlin C.J.). Separate juvenile justice frameworks, such as Canada has long had, arguably place more explicit emphasis and importance on moral ordering – or at least its pedagogical communication – than do their adult comparators: see Kathleen Daly and Brigitte Bouhours, “Judicial Censure and Moral Communication to Youth Sex Offenders” (2008) 25 Just. Q. 496. This pedagogical focus is commonly seen as being more likely to make an impression on young people and influence their subsequent choices and lifestyles. This focus is often paired with more resources and efforts to support young offenders’ rehabilitation, along with more substantive opportunities for non-adversarial dialogue, in a sense, to ‘save’ these young people –and their communities – from them turning into the dangerous, irredeemable recidivists that society fears and abhors. See, for a discussion of the effectiveness of one such approach, Hennessey Hayes and Kathleen Daly, “Youth Justice Conferencing and Reoffending” (2003) 20 Just. Q. 725. See also, in relation to Restorative Justice Principles, the discussion in this chapter, below at §1.3.5. My thesis, however, despite and perhaps because of the more encouraging reflections that youth justice systems have for a theory of communicative moral ordering, is explicitly not including youth-focused models in its argument. Although there are fascinating comparative investigations to be made between how moral concepts are harnessed in youth versus adult court, I have not chosen to pursue such a line of enquiry. By limiting my focus to the adult criminal justice system I hope to best explore how the criminal law’s concern for moral ordering manifests (or does not) in more general or fundamental ways. 22 While the choice of these age ranges may be arbitrary or debatable, with some youth who exhibit significant independence falling under a more lenient, or entirely non- criminal legal regime than some adults of pronounced immaturity, there is nevertheless a moral hermeneutic at work distinguishing between those held criminally responsible and those who are not. A more contextualised manifestation of the requirement of responsibility is seen in the area of law determining mental fitness to stand trial or be held criminally responsible for unlawful conduct. Similar to defences based on involuntary conduct, this statutory provision operates to exempt from conviction persons who have been medically assessed as falling below a legal threshold: that of understanding the nature and consequences of their conduct, knowing right from wrong, and being capable of a basic comprehension of courtroom procedures. If such a status is established, in regards to when the act was committed, and/or when the case is to be tried, the criminal law will defer to provincial mental health regimes, which are designed to ensure persons receive treatment while balancing the risk of their release against the safety of themselves and others. Again, while this in practice leaves people of demonstrable mental fragility to be dealt with by the criminal justice system,48 it is further evidence that the law’s definition of what is criminal seeks to ground its operation on moral responsibility, or, in Aristotelian terms, the apportionment of blame only upon those who justly deserve it. As reflected in the language of s. 16(1) of the Criminal Code, which establishes the defence of mental disorder, to be criminally responsible persons must be capable of “appreciating the nature and quality of the act… [and] of knowing that it was wrong”. To be clear, the defence has been interpreted so as to not apply to one (such as a psychopath) who “has the necessary understanding of the nature, character, and consequences of the act, but merely lacks appropriate feelings for the victim or lacks feelings of remorse or guilt for 48 See R. v. Whittle,  2 S.C.R. 914 (S.C.C.) which found that an accused is fit to stand trial provided he has the cognitive capacity to understand proceedings and communicate with counsel. 23 what he has done…”,49 or who simply subjectively feels their conduct is morally acceptable. “Wrong”, in s. 16(1) “is not to be judged by the personal standards of the offender but by his awareness that society regards the act as wrong”.50 The morality here, as I took pains to argue in §1.3.1, is not any one person’s, but rather a standard around which there is a shared societal consensus. But the underlying premise articulated in the law on mental disorder, and of responsibility more generally, arguably maintains a basic connection between individual and institutional moral intelligibility. It is upon this basis that courts assess and express concepts of blameworthiness, vis-à-vis both the offender and the surrounding community. 1.3.5 A Crime is Censured by the State The fifth and final element of criminal law’s moral framework, like the first, encompasses a deep well of normative discretion. Both the original question of what is wrong, and the ultimate question of what merits censure, are inquiries that presuppose an authoritative entity to provide the answer. As reflected in the above outline of law’s political prerequisites in § 1.2, each state presumes itself as the ultimate voice through which these questions are answered. For a wrong to be formally assessed as a crime, therefore, state-based (court) confirmation is necessary. Even more so than in the legislating of certain wrongs as unlawful, however, the process by which some acts result in criminal convictions, while others do not, is channelled by an intricate interplay of decisions and circumstances. Some of these criteria are deliberatively normative, others instrumental, and still more arbitrary or haphazard. To draw a generalised conclusion from this thick skein of context, luck, and choice, I suggest that while not every (and perhaps not even most) presumptively unlawful wrongs are confirmed as criminal and result in state censure, all those that do arrive at this point have been considered as morally ‘fit’ for such a disposition by a variety of state-authorized actors. 49 Kjeldsen v. R.,  2 S.C.R. 617 (S.C.C.) at 626, quoting Martin J.A. in R. v. Simpson, (1977) 35 C.C.C. (2d) 337 (Ont. C.A.) at 355. 50 R. v. Schwartz,  1 S.C.R. 673 (S.C.C.) per Dickson J. at 678, as approved in R. v. Chaulk,  3 S.C.R. 1303. 24 This claim must be explicated. There is an array of reasons, emphatically not dependent on any moral assessment of the conduct, for why some acts do not result in formal state censure. Most obviously, many otherwise criminal acts are never reported to or identified by the police.51 Resources for enforcing the law may be unequally distributed (in both the literal and critical sense of that term) some communities or individuals may not feel able or willing to initiate or facilitate prosecutions that may be seen as ineffective or counterproductive, and pressure or outright oppression from the offender or other non-legal forces may impede people from disclosing unlawful conduct. Some bodily or property rights are not, in practice, accorded the protection that the law officially affords them. These are important problems for society to grapple with, and most definitely erode the moral authority of courts as ‘equal opportunity’ judges of proscribed conduct. Without minimizing the issue, I can only argue here that, although the gap between “what happens” and “what the law sees” may be legitimately critiqued as a source of injustice, this (apparently perennial) state of affairs does not, by itself, impoverish a court’s ability to pass moral judgment on the wrongful, unlawful conduct that is brought within its purview.52 The Canadian Constitution itself enshrines another reason why some presumptively unlawful acts do not result in state censure. In a system that seeks to balance the state’s interest in securing convictions against the protection of individual liberties, some prosecutions will have to be forestalled or ultimately founder if those latter rights have been infringed. Charter challenges are litigated daily in Canada’s criminal courts, mainly concerning the right not to speak to investigative authorities (s. 7) the rights against unreasonable search and seizure (s. 8) arbitrary detention or arrest (s. 9) or the right to retain and instruct counsel (s. 10(b)). The formal balancing of these interests is conducted under a s. 24(2) analysis which considers whether evidence obtained in an 51 Lucia Zedner, Criminal Justice (Oxford: Oxford University Press, 2004) at 6. 52 These concerns do, of course, form part of the morally-informing context within which courts make such judgments. Courts, and the legal orders they represent, which do not in some way acknowledge the capriciousness and even outright unfairness that contributes to some persons being subject to legal judgment while others are not, arguably spend a significant part of their moral capital upfront. See Alan Brudner, supra note 7 at 324. 25 unlawful manner should be excluded from a trial. Relevant factors include the seriousness of the Charter-infringing state conduct, the impact of the breach on the Charter-protected interests of the accused, and society’s interest in the adjudication of the case on its merits.53 The overriding determination concerns the maintenance of the justice system’s overall social authority – in the language of s. 24(2) evidence tainted by a Charter breach “shall be excluded if it is established that... the admission of it in the proceedings would bring the administration of justice into disrepute”. Other reasons for quashing charges or ordering acquittals in criminal cases may include abuse of prosecutorial process, undue delays in bringing cases to court (as per s. 11(d) of the Charter) and other serious jurisdictional or procedural irregularities. The theme running through all of these examples is that, although the conduct at issue may meet all of the other requirements of being a crime, countervailing factors for which the state itself is responsible interpose to prohibit a conviction. There may be moral claims propelling the law’s privileging of interests in this case-by-case assessment – coerced confessions are not usually countenanced, for example, while courts are more likely to excuse minor constitutional indiscretions that lead to material evidence of a serious crime – but the blameworthiness of the putatively criminal act is not, in theory, of primary relevance at this stage. While the prosecutions that actually fail as a result of constitutional or procedural arguments may be comparatively few, these failures (are meant to) condition the subsequent behaviour of law enforcement authorities, and remind society that the state’s interest in prosecuting crime must not be furthered at the expense of individual rights. Finally, there is (at least officially) a “golden thread” of presumed innocence that underpins all criminal prosecutions in Canada,54 one that is not ultimately severed except on evidence that proves guilt beyond a reasonable doubt. This high standard, coupled with the legal, constitutional, and circumstantial requirements constraining the 53 R. v. Grant,  S.C.C. 32 at para. 71. 54 This term was first articulated in the United Kingdom’s jurisprudence by Viscount Sankey in Woolmington v. D.P.P.,  A.C. 462 (H.L.) at pp. 481-82, and has been explicitly adopted in Canadian jurisprudence: see, for ex., R. v. Oakes,  1 S.C.R. 103 at para. 30. 26 prosecution’s case, inevitably results in verdicts of acquittal even when there is general ‘gut’ certainty that person X committed crime Y. ‘Getting off on a technicality’ or because of a key witness’s recalcitrance may not absolve anyone in the court of public opinion, but is necessary to preserve what a liberal state may claim as its most noble morality: that it is better to let slip the nine guilty than punish the one without blame. There are no half measures here, no probability-based judgments. As Lucia Zedner observes, one of the central fictions of criminal law is the stark distinction it erects between guilt and its absence.55 At least in terms of an act’s status as criminal, and the explicitly punitive consequences that a state may thereby visit upon its perpetrator(s), unless exactingly proven according to all of the above standards, a wrong does not exist, and never did.56 While such legal ‘fictions’ may bear little relation to messy realities beyond the courtroom doors, they can be seen as attempts to further position the adjudicative institution as committed to moral certainty in its judgments. In order to prepare the ground upon which guilt may be planted, all facts and arguments considered extraneous to the narrow question of whether this individual committed this unlawful wrong, with a “guilty mind” and without recourse to one of the few enumerated excuses, must be stripped away. Such factors may become relevant again at sentencing, of course, and as I discuss at greater length below, how they are considered at this stage can significantly undergird, or undermine, the moral authority that the criminal law takes great pains to showcase through the process of attributing blame. 55 Zedner, supra note 51 at 12. Note that she is using the term ‘crime’ to include wrongs that the state may have not officially proscribed, or at least has not confirmed as such in relation to a specific actor and conduct in a court of law. In keeping with my working definition of the term, I refrain from labelling any conduct as ‘criminal’ unless and until it is finally confirmed as such by a court of law in a specific case. 56 An equally powerful dichotomy also operates to polarize offender and victim. Except in cases where criminal charges are laid on both sides of a conflict (and, even here, each proceeding will take place separately) criminal law accepts nothing “comparable to the question of comparative [or contributory] negligence” between offender and victim. In the constructed silos of individual prosecutions, at least at the stage of determining guilt, nothing so nuanced as shared responsibility is permitted entry. See Fletcher, supra note 3 at 129. 27 Having briefly considered the reasons not dependent on an act’s moral attributes for why it may or may not be confirmed as criminal, I return to those assessments that are concerned with the moral ‘fitness’ of an act’s formal, forced inclusion within the law’s censuring gaze. As with the above analysis of some of the non morally-founded reasons for this attribution, I locate those that follow as generally normative in nature. It is important to note, however, that these two sets of criteria operate simultaneously, in the same intricate context of instrumental, circumstantial, political and personality- driven variables. This is not a uniform or static environment, and even within the same legal territory, each of these factors may manifest quite differently across space and time. Nevertheless, choices based on moral assessments of what conduct ought to be classified as criminal can be discerned throughout the passage of a given case. Those who are directly affected by presumptively wrongful conduct make the initial choices in this regard. Often the choice to alert law enforcement authorities is obvious, but, in addition to the pragmatic or structural concerns noted above, there are normative reasons why this may not be a straightforward decision. Conduct that is judged by a given in-group to be acceptable, regardless of what the law has decided, often escapes or actively eludes the state’s attention. The relative triviality of some illegality, as assessed by the community immediately responsive to a given act/actor, may also result in conduct being summarily excused or censured without resort to a state-based apparatus. The situations in which the law is and is not called upon say much about a community’s ability and willingness to self-govern. As Zedner reminds us, “at no time has the state had exclusive jurisdiction over crime control… [and] only as informal sources of social control grew weaker did the institutions of criminal justice develop to become the dominant means of imposing order”57. This process, neither uniform nor explicit but tending, particularly in large and loosely bonded societies such as Canada, towards greater reliance on state involvement in conduct that might otherwise be ‘hidden’, 57 Zedner, supra note 51 at 3-4. 28 points to several possible causal and contributory factors.58 These may include an increased comfort with or habituation to the criminal justice system’s normative mechanisms, the atrophy of internal means of defining and responding to wrongdoing, and, particularly in societies where one normative order eclipses others, an apparent capitulation to the official regime, even while local levers of control persist in exercising parallel, formally unsanctioned authority. These factors may operate in tandem for some communities, and also variably depending on the types of conduct at issue: while some acts may be able to be kept entirely ‘in the family’, others may leave such profound signs or effects as to inexorably invite the state’s attention. Once the state does become engaged at the investigative level, another layer of morally-based decision-making asserts itself. This is most perceptible in the least serious crimes, where the police and prosecution are statutorily empowered to stream cases out of the court system .59 This can involve anything from perfunctory verbal warning to referral into an established diversion program. Considerations at this stage include the amount of harm or loss caused, the age, background, and adjudged character of the offender, his or her acceptance of responsibility and apparent willingness to make amends, previous history with the police or before the courts, and, sometimes, the views of the victim(s). Diversion programs are commonly grouped and self-identify under the banner of restorative justice. Restorative justice is both a philosophy and a practice of responding to wrongdoing.60 The principles and processes restorative justice espouses are not, in theory, confined to minor misfeasance. With values that encompass empowering those closest to a given crime (victims, offenders, families and other supporters) to work towards shared resolutions that repair or restructure damaged relationships, denouncing harmful behaviour through the voices most likely to penetrate an offender’s 58 I can only point to some of these factors here; further inquiry is beyond this thesis’s purposive scope. 59 See the ‘alternative measures’ provisions of the Criminal Code, Supra note 39 at s. 717. See also the ‘extrajudicial measures’ component of the Youth Criminal Justice Act, supra note 46, Part I. 60 Erik Luna, “In Support of Restorative Justice”, in Criminal Law Conversations, Paul H. Robinson, Stephen P. Garvey, and Kimberly Kessler Ferzan eds., (New York: Oxford University Press, 2009) 585-595. 29 protective defences without denigrating his or her abiding human dignity, and responding to the fullest context of wrongdoing, in its causes as well as consequences, Restorative Justice presents as an integrated, albeit ambitious, alternative to state- based justice.61 What such an approach requires, however, are perhaps the rarest and least reliable of phenomena: offenders who are genuinely responsible, remorseful, and motivated to make amends, victims who are resilient, compassionate, and interested in openly reliving the circumstances of their victimization, support networks who will contribute without taking over or entrenching conflicts, and facilitators who can skilfully navigate the emotional shoals of the subject matter. Whether such capacities can be located or cultivated in the hearts of those burdened by harmful conduct is a matter of indeterminate debate, but at least in most Canadian jurisdictions, the question is not being deeply considered by legislators, who have the greatest means and authority to test its answer. Restorative justice across the country, with the possible exception of Nova Scotia,62 is stalled on the margins of criminal justice. With comparatively miniscule budgets and staffs often composed largely of volunteers, restorative justice programs have produced generally encouraging outcomes63 in the realm of non-violent, youth and first-offender minor offences most commonly assigned to them. They are most significantly limited, however, by an ideological resistance that, sometimes explicitly but more often evident in the simple persistence of the status quo, refutes the thesis that most offences/offenders are responsive to or deserving of ‘restoration’, or that community-based processes can effectively denounce wrongdoers and protect society.64 At base, perhaps, is the reluctance of an established apparatus, founded upon 61 Ibid. 62 See, generally, Nova Scotia, Nova Scotia Restorative Justice Program (Halifax: Government of Nova Scotia, 2009), online: Nova Scotia Justice <http://www.gov.ns.ca/just/Restorative Justice/>. This province’s initiatives, however, are currently only available to youth. 63 See, for the most comprehensive recent review of Restorative Justice program effectiveness, Jeff Latimer, Craig Dowden, and Danielle Muise, “The Effectiveness of Restorative Justice Practices: A Meta- Analysis” (2005) 85 The Prison Journal 127. 64 See, generally, the critique of the ‘dominant’ system articulated by Hermann Bianchi in Justice as Sanctuary (Bloomington IN: Indiana University Press, 1994). Bianchi states, at 41: “reversion, conversion, repentance, forgiveness, atonement, reconciliation, penitence: all these concepts are entirely ignored in the punitive model or criminal law… [i]t is not lack of good will that causes administrators of punitive 30 and animated by authoritative power, to give way to decentralized approaches, however promising they may be.65 Whether cynical or sincerely held, arbitrary or evidence-based, the rationales that keep diversion programs from responding to all but the most minor unlawful conduct illuminate still more morally normative choices as to what ought to be confirmed in law as “criminal”. These choices, most often made by prosecutors after charges have been formally laid, reflect the widespread public and political belief that most wrongs, committed by most perpetrators, merit the ‘official’ censure that only public justice processes are able to deliver. In return, courts, in applying a single set of laws and procedures for establishing guilt irrespective of a given crime’s cultural, socio-economic, or territorial characteristics (so long as it is located within their established jurisdiction) offer a powerful presentation of universality, accountability, and impartiality, all of which are important indices of justice in a liberal state. I explore in greater detail in the next section how the composition and orientation of courts can increase or erode their authority, not only as arbiters, but also as interpreters and clarifiers of the (presumptively morally significant) wrongs that are brought to their attention. As we have seen, the first four elements of criminal law’s moral foundations – that conduct must be wrongful, unlawful, and committed with at least a minimum amount of voluntariness by a legally responsible actor – are all in some respect articulations of the blameworthiness that must be established before given conduct will be finally confirmed as criminal by a court. This final threshold, as I have discussed, encompasses a complexity of normative, instrumental, and even happenstance factors, none of which can be conclusively delimited or defined. The moral coherence aspired to by Canada’s law and justice systems, therefore, is neither perfect nor complete. I suggest, however, that the five elements discussed in this section still channel the essential nature of moral justice to be unacquainted with such concepts. It is simply the reality that the punitive system does not allow for them”. 65 It must also be noted here that some substantive critiques have been made of restorative justice’s ability to further its objectives while protecting the interests of vulnerable persons. See, generally, Annalise Acorn, Compulsory Compassion: A Critique of Restorative Justice (Vancouver: University of British Columbia Press, 2004). 31 blameworthiness that establishes the core meaning of criminality. Although by far not all morally blameworthy conduct is formally assigned this label, that which does has necessarily been considered to meet all five of the above requirements, by the prosecuting authority as well as the confirming court. Through this substantially morally-based filtering process, the criminal justice system seeks to ensure that the acts that it captures, by its own terms at least, are amenable to, and justify, its similarly morally-fuelled dispositions. As set out at the beginning of this chapter, I reiterate that moral censure, rooted in righteous blame, is at the stem of just punishment. It is to punishment, therefore, which encompasses the second of my three claims regarding criminal law’s fundamental concern with moral ordering, that I now turn. 1.4 The Moral Proportionality of Punishment While I do not concentrate on punishment per se in this thesis – every one of the major philosophies has bookshelves of support and criticism devoted to it – no discussion of the morality of criminal justice can ignore the ‘end results’ of the sentencing process. There are as many theories of punishment as of crime, setting forth a similarly wide range of explanations, from Foucauldian discipline to Neo-Marxist economic determinism to Weberian bureaucratism.66 The discussion that follows focuses solely on contemporary Canadian law, and argues that of the many available bases upon which punishments can be fashioned, the most coherent choice of punishment in most cases – both according to the Criminal Code and its underlying justificatory premises that were sketched out above in § 1.3 – is that of “moral proportionality”. The composition of this proportionality in a given case, as will be seen, results from the application of ‘universal’ norms to individual, contextually calibrated blame. 1.4.1 A Statutory Smorgasbord A mélange of rationales is discernable in Canada’s sentencing schema. In no particular order of importance, the Criminal Code endorses: - Denunciation of wrongful conduct (at s. 718(a)); 66 Lucia Zedner surveys these diverse theories in supra note 51 at 76-82. 32 - Deterrence, both ‘specific’ (vis-à-vis the offender) and ‘general’ (vis-à-vis others in society) (s. 718(b)); - Incapacitation of offenders, “where necessary” (s. 718(c)); - Rehabilitation (s. 718(d)); - Reparations to victims or the community (s. 718(e)); - Promotion of “a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community” (s. 718(f)); - Parity, vis-à-vis “similar” offences, offenders, and circumstances (s. 718.2(b)); - Constrained totality (so that consecutive offences are not “unduly long or harsh) (s. 718.2(c)); and - Restraint in the use of imprisonment, if less restrictive sanctions are appropriate (s. 718.2(d)) and “with particular attention to the circumstances of aboriginal offenders” (s. 718.2(e)). The Code also generally allows for punishments to “be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender”, and enumerates a non-exhaustive list of aggravating (but not mitigating) factors (at s. 718.2(a)). One principle, however, is advanced as an overarching guide to balancing these diverse and potentially conflicting impetuses. Section 718.1, the “Fundamental Principle” of sentencing, states that “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. A court that seeks to impose a fair sentence according to this framework must therefore determine not only the ‘badness’ of the crime, but also the ‘blameworthiness’ of the offender. While a range of maximum and (increasingly) minimum sentences, as well as previous decisions in similar cases, offer presumptive boundaries and benchmarks in this regard, punishments are meant to fit the unique characteristics of the criminal as well as the crime. Canada’s sentencing courts, while authorized to bring much discretion to the imposition of punishment, are thus guided by a conceptual framework that privileges the morally formulated concern of “proportionality”. Below, I consider how this textual organization impacts the prioritization of diverse sentencing objectives. 33 1.4.2 The Criminal Code’s Purposive Tensions: Retributivism and Utilitarianism Not all of the sentencing principles surveyed above are primarily concerned with proportionality, and some have the potential to weaken or undermine what coherence may be drawn from it as a synthesizing principle. Restitution, for example, if strictly construed as the obligation to undo the harm or pay back the loss an offence has caused, is a civil concept unrelated to punishment per se. As such, it is rarely the dominant aspect of a sentence, and may only form part of a disposition if readily measurable in monetary terms.67 Often it is simply impossible for criminal harms to be literally recompensed; the debt owed by an offender must be repaid, if at all, through more symbolic means. Two distinct moral theories, both reflected in the Criminal Code, claim normative space in this area: Utilitarianism and Retributivism.68 Broadly, Utilitarianism suggests that society ought to seek to improve its overall welfare, while Retributivism posits that this end (even supposing it can be agreed upon and realized) ought not to be achieved by ‘unjust’ means. Most appositely to this discussion, Retributivism counsels us to respect a pre-existing, overriding concept of human dignity, and thus disavow any criminal law, process, or punishment that undermines this moral absolute. Looked at another way, while utilitarian rationales for punishment are primarily reductive, or aimed at minimising future criminal harms, retributive rationales are concerned with what offenders deserve (no less, and even more certainly, no more). Although it is shaded and moderated by our evolving social mores, liberal constitutional principles, and other sentencing objectives, I argue in this section that Canada’s express privileging of proportional punishment takes its moral energy from the Retributive principle of just deserts. As discussed below, however, this does not mean that sentencing judges are not influenced by a host of other normative decision-making bases, including, most powerfully, the utilitarian goal of social protection. 67 Criminal Code, supra note 34 at s. 738. 68 Fletcher, supra note 3 at 190. 34 The protection of society from the risk of future criminal harms, as reflected in the aims of rehabilitation, deterrence and incapacitation, is clearly motivated by utilitarian considerations. There is an irreconcilable tension, it seems, between the goals of retributive justice (which require, inter alia, that no one be punished more than they deserve) and those of social protection, which legitimize sentences that are far in excess of what an offender may be said to deserve. On the other hand, at the retributive end of this spectrum, there may be no utilitarian basis at all for a particular punishment, though a retributive conception of ‘justice’ may demand it. As the criminologist Nigel Walker has observed, it is common for judges to appeal to different justifications in different circumstances, with the importance of finding a retributive ‘fit’ growing according to the seriousness of the offence.69 Incapacitation is also recognised as an important aim of punishment, whose statutory subservience seems belied by its common (and politically endorsed) application. Retributive justifications (depending on who is making them) can found long prison sentences, but incarcerating offenders as a means of preventing future crime requires a utilitarian rationale. In Canada, indeterminate prison or supervisory terms are rarely imposed, and only according to statutory provisions that require the establishment of both an offender’s violent past and elevated risk of future dangerousness.70 Punishments for particular crimes cannot, in law, be primarily incapacitating. Mandatory life sentences for murder convictions (and mandatory punishments generally) however, can be seen as an exception to Canada’s general application of contextually calibrated Kantianism. In this most serious class of crime, 71 the driving force behind the most serious punishment that is mandatorily applied thereto is neither Utilitarianism, nor specific retribution, but rather, 69 Nigel Walker, Punishment, Danger, and Stigma: The Morality of Criminal Justice (Oxford: Basil Blackwell, 1980) at 30-31. 70 Criminal Code, supra note 34 at Part XXIV (“Dangerous Offenders and Long-Term Offenders”). 71 Which itself contains gradations according to the circumstances of the offence’s commission and the protected nature of certain classes of victim. See ibid. s. 231 (2) (“murder is first degree murder when it is planned and deliberate”) s. 231 (4) (“murder of peace officer, etc.) and s. 231 (7) (“all murder that is not first degree murder is second degree murder”). 35 arguably, an expression of abhorrence for the wilful taking of another’s life, irrespective of the circumstances.72 Finally, from a Retributive perspective, punishing people as an ‘example’ to others is morally repugnant in that it treats individuals as means rather than ends.73 The Criminal Code’s inclusion of general deterrence as a principle of sentencing explicitly endorses this approach. To utilitarian-minded judges, this rationale can certainly take the form of an overriding justification for particular punishments, but again, the Code’s textual framework restrains the applicability of the deterrence principle. Specific deterrence (also explicitly endorsed in the Code) is somewhat more palatable to a Retributive perspective, in that it seeks to speak directly to the offender, but as a dominant justification, it allows a virtually limitless range of punishments moored less to the offence than the court’s assessment of the offender. These sanctions can range from nothing at all (for those already reformed, repentant and/or incapable of further offending) to ‘whatever works’ punishments that can employ horrendous techniques to deliver their message. In Canada, however, s. 12 of the Charter operates to disallow the most grossly disproportionate of such dispositions.74 According to the Criminal Code and leading jurisprudence,75 sentences must be appropriately and contextually balanced by way of the fundamental (Retributive) principle of proportionality. But what, in practice, does this require sentencing courts to consider? How is proportionality meant to be discerned? The following section considers these important questions. 1.4.3 Proportionality through the Eyes of the Beholder The proportionality that is meant to guide the imposition of punishments can be interpreted in two quite different ways. The narrower application of this principle, based on a kind of formal equality, would result in rigid sentencing gradations according 72 It must be noted that while the penalty is the same in both first and second degree murder (life imprisonment) the parole eligibility requirements are significantly different (25 versus ten year minimums). This reflects the attenuated blameworthiness ascribed to persons convicted of second degree murder. 73 Walker, supra note 69 at 198-205. 74 See the Supreme Court of Canada’s discussion of s. 12’s requirement in R v. Malmo-Levine, supra note 16 at paras. 159-162. 75 See R v. Proulx,  1 S.C.R. 61 at para. 82. 36 to the adjudged gravity of the offence. This brand of strict retributivism is evident in jurisdictions that employ a point or tariff scale to determine the appropriate amount of punishment,76 whereby the worse the crime itself, or the more aggravating the circumstances of its commission, the harsher the penalty. But while certain aspects of the Criminal Code’s sentencing provisions lend support to this approach, others, including the latter clause of the proportionality principle, endorse a broader interpretation. Through this lens, the establishment of liability for a given crime is merely a base prerequisite for more nuanced considerations of an offender’s responsibility for the offence, at which stage virtually anything in one’s personal or social situation has potential importance. Proponents of more socially just responses to criminal wrongdoing are attracted by such a ‘substantive equality’ reading of proportionality: Michael Tonry suggests that justice cannot be extended to minorities or the poor without this “compassionate” interpretation of culpability,77 and Barbara Hudson argues that, especially in regards to offences borne from socio-economic poverty, a person’s ‘choice’ to commit crime ought not to be understood in black-and- white terms. H.L.A. Hart’s notion of crime as requiring a ‘fair opportunity to resist’, she suggests, should be expanded to encompass culpability reductions “in circumstances such that conformity with the law [is] more difficult than for most people”.78 76 This approach is reflected, although only to an advisory extent, in the sentencing guidelines contained in the US Penal Code: see the provisions establishing the United States Sentencing Commission, 28 U.S.C. 58. 77 Michael Tonry, “Individualising Punishments” in Principled Sentencing: Readings on Theory and Practice, Andrew Von Hirsch, Andrew Ashworth, and Julian Roberts, eds., (Oxford: Hart Publishing, 2009) 354. 78 Barbara Hudson, “Justice and Difference” in ibid. 366 at 369. The reality that most crime is committed by those on society’s margins, however, must be coupled with the equally inescapable fact that the majority of those harmed by crime are also mired in socio-economic inequality. Those who seek to have sentences reflect justice for offenders, therefore, must contend with the possibility that furthering this cause may infringe the concept of justice interpreted by victims. Indeed, as Hudson acknowledges, this is an abiding difficulty, and sometimes it is simply not possible to ‘do justice’ to both offenders and victims in the same part of the criminal justice system, much less maintain consistent standards across the spectrum of situations and personalities that play into the determination of punishments. It would seem to come down to a matter of judicial preferences, which all theorists may be able to agree allows for considerable compassion or harsh treatment, depending on whose interests – victim, offender, community, or a combination of all – are privileged by a sentencing court. 37 In the interminable debate of parity versus particularity, however, both of which are reflected in the Code’s objectives, the “fundamental principle” of proportionality seems to most favour the latter concern, and the specific deserts of specific offenders. The balance aimed at by this individualised assessment, while weighing in the harm to victims and the needs and values of society, is most dependent upon individually ascribed moral blame. Every court, in (almost) every case, must attune itself to what, in its estimation, each offender ‘justly deserves’, and, subject to subservient adjustments, let such gauging drive its judgment. But turning back again from outcomes, it is necessary to enquire into the means through which this balancing is accomplished. The next section, accordingly, takes up the last of my three claims regarding criminal law’s fundamental moral concerns. In §1.3, I advocated moral blameworthiness as the cohering principle of criminal liability. This section has advanced moral proportionality as Canada’s cohering principle of punishment. Below, I consider the formal process by which these requisites of the law’s moral order are applied and expressed. 1.5 The Moral Acoustics of Sentencing Courts Many of the terms that I have been using in this chapter – words like blame, guilt, and offence – are inescapably morally evaluative concepts. Although they may have also have strict legal meanings, even (perhaps especially) when they are employed in a determinative way by courts of law, they evoke powerful and deeply-rooted judgment, “an attitude of contempt, an emotional disposition to demote the accused in the eyes of others”.79 This is a good reason why the law is, in theory, very careful not to use them without careful consideration and guarantees of assurance. The mechanism of assigning criminal responsibility is designed to both call down and control the moral opprobrium that flows, from a diversity of social sources, onto offenders upon their conviction. While they are ultimately unable to completely be so, criminal courts try, at least, to provide the authoritative voice through which society expresses its disapproval of criminal conduct, both to offenders and to itself. 79 Fletcher, supra note 3 at 132. 38 There is evidence for this ambition in the sentencing provisions of the Criminal Code. The first enumerated purpose of sentencing, at s. 718(a) is to “denounce unlawful conduct”, and the last, at s. 718(f) is to “promote a sense of responsibility in offenders, and [acknowledge]… the harm done to victims and the community”. While, in theory, these aims may be substantially accomplished by the punishment itself, certain core procedures, long upheld by courts as essential to their legitimacy and function, indicate that something more directly communicative is endorsed. Defendants must personally appear before the court to receive their sentences, which are orally delivered from the judge’s bench. Members of the community are allowed to witness this (like every) public proceeding, and, as I shall address in greater detail below, submissions are invited from the prosecutor, defence counsel, the offender him or herself, and any victim of the offence. In most major respects, the process by which a person’s sentence is communicated would appear to be secondary in importance, at least in terms of the legislated purposes and principles at play, only to the punishment itself. A number of theorists support this orientation, ascribing and prescribing it normative force. R.A. Duff has articulated a comprehensive communicative theory of punishment, which he argues is most appropriate for a liberal polity that defines offenders as responsible moral agents (as, I have argued above, does Canada’s). Such a society’s criminal law, he asserts, cannot merely attempt to coerce conformity and obedience through punishment. Presuming as it does a shared community of values, which locates and addresses offenders as wayward members thereof,80 the law must instead 80 R.A. Duff, Punishment, Communication, and Community (New York: Oxford University Press, 2001). At 68, he states that: A community can exist only if most of its members recognize themselves as members of it and share in those values and aspirations. The law speaks to such members in what they can hear as their own voice – in terms to values to which they are already committed and of what they owe to others who they already recognize as their fellow citizens. Although there will always those who dissent from or reject this normative community, Duff insists that “we try to find ways of bring them to recognize a certain kind of fellowship and to accept the moral demands that it makes” (at 70). Failures are of course inevitable, but the attempt is essential given that it is the community’s moral norms that are being applied to the offender, and justify his or her punishment. In Chapter Two, I discuss some of the complexities of this perspective as it relates to the Canadian context. 39 aim… to persuade them to refrain from criminal wrongdoing because they realize it is wrong. That aim can of its nature be achieved only by a communicative process that seeks to bring citizens to recognize and accept not just that certain kinds of conduct are ‘prohibited’ by the law but that and why such conduct is wrong.81 Regardless of the sensibility that particular offenders may bring into, or indeed, as responsible moral agents, take from a criminal court’s sentencing process (whether shame, openness, indifference, or defiance) the process itself must yet advance the same invitation. Albeit usually embedded in the “hard treatment” of punishment,82 Duff characterizes this invitation as fundamentally offering the opportunity of repentance and eventual reintegration in the normative community. Furthermore, in order to best ensure that offenders are able to hear (if not ultimately accept) the moral message that a sentencing court seeks to send, this forum must attend just as carefully to how this message is communicated: [i]f the defendant is to be answerable, she must be called to answer in a language that she can understand… what someone hears, or can be reasonably expected to hear, when he is addressed depends not just on the content of what is said, but on the context in which it is said, and the accent in which it is spoken.83 What this would require in practical terms, of course, differs between communities, but the idea is relatively straightforward: criminal courts have important normative responsibilities, which ought to be communicated in the most comprehensive and comprehensible way possible. Further, this should be a dialectical process, which “aims not merely to communicate with the offender, but also to provide a means by which she can communicate apologetically with her victim and the community”.84 81 Ibid. at 81. 82 R.A. Duff, “Punishment, Retribution, and Communication” in Principled Sentencing, supra note 77, 126 at 129. 83 Supra note 80 at 189, 192. 84 Ibid. at 159. 40 Duff’s orientation is supported, in part, by Christopher Bennett.85 Bennett perceives a “crisis of meaning” in the criminal justice system, in which “it is not clear what the system is actually meant to be doing, what that overall purpose of criminal justice is – or whether the officially given purposes are really compelling ones”.86 For Bennett, the state has to (continually) justify its coercive involvement in people’s lives, which can only be grounded in the repair of political community, once ruptured: [t]he concern of the criminal law is with the maintenance of a certain relationship between citizens. Unless what citizens do offends the standards internal to this political relationship the criminal law has no business with the morality of its citizens’ actions.87 Once such an offence has been established, the presiding institution is called upon to channel and express a collective duty: “symbolically adequate” condemnation, which “impose[s] upon the offender a duty to make amends of the sort that he would be spontaneously motivated to make were he genuinely sorry for what he has done”.88 Where Duff and Bennett part ways, however, is in regard to the state’s responsibility for encouraging repentance. While for Duff this is an essential part of the ‘communicative’ aspect of sentencing, Bennett holds that the ‘expressiveness’ of a state’s censure ought merely to symbolize, through punishment, the qualities and quantities of remorse and apology a given offence engenders. Whether the offender actually travels that emotional road is not, for him, the state’s business.89 The engagement and participation of offenders (and arguably victims as well) in the actual process of discerning and delivering sentences is thus less important for Bennett than for Duff. Both theorists, however, place emphasis on a judge’s authority to look, as deeply as is felt necessary, into the context and characteristics of the wrong and wrongdoer. This standpoint, indeed, is true of all who imbue courts with the 85 Christopher Bennett, The Apology Ritual (Cambridge, Cambridge University Press, 2008). Although written from a British context, I take Bennett’s theoretical critique and prescriptions to apply to Canada’s situation as well. 86 Ibid. at 13. 87 Ibid. at 166. 88 Ibid. at 171. 89 Ibid. at 193-194. 41 responsibility of assessing and addressing the moral gaps a given offence opens between members of a community and/or between individuals and the state. It is also a perspective that has apparently been accepted in Canadian law, as reflected in the various inherent and statutory mechanisms designed to afford courts the scope to make such deep contextual enquires. I spend more time on the practical intricacies of this function in the next chapter. What I have tried to express in this section is that the theories that open this judicial ambit and discretion fundamentally concern the state’s capacity and entitlement to make moral judgments, not just about the wrong itself, but about who committed it and what is required in response. Before concluding my development of these theories, however, I must outline some of their most important critiques. The most profound caution that is usually raised against a justice system that seeks to address the full offender, rather than just the offence, is that it will shift the proper locus of guilt from act to actor. While the concept of ‘guilt’, as I have noted above, is itself inherently interlaced with emotional, even theological content, George Fletcher warns that we do not need to – and indeed should not – refer to our own deeper feelings or those of the offender. Any attempt to address the real guilt of the perpetrator introduces a personalized approach to punishment… the criminal law requires only that the offender commit an unlawful act inexcusably.90 This wariness stems from the evident problems, both moral and practical, of punishing character: Fletcher invokes the Nazis’ punishment of inner mental states,91 while Ekow Yankah castigates a “good guys and bad guys” understanding of (U.S.) criminal justice, in which offenders are stigmatized as “immoral other[s]”, fuelling a “desire to punish villains… satisfied only by continually punishing that class of immoral characters, creating a permanent criminal caste”. 92 90 Supra note 3 at 299-300. 91 Ibid. at 35. 92 Ekow N. Yankah, “Good Guys and Bad Guys: Punishing Character, Equality, and the Irrelevance of Moral Character to Criminal Punishment” (2003-2004) 25 Cardozo L. Rev 1019 at 1025, 1027. 42 Perhaps understandably, theory-driven endorsements or critiques of courts’ ambition and ability to discern the full moral context within which particular wrongdoers commit particular wrongs are apt to accentuate extremes. While Duff’s communicative sentencing invitations presuppose, and depend upon, a careful and caring normative community, the strictly reigned-in approach advocated by Fletcher and Yankah apprehends an authority that easily abuses its power. In Canada at least, the prevailing reality likely ranges between these poles, according to the particular dynamics of offence, offender, court, and community. What the above criticisms of discretionary sentencing seem not to acknowledge is the possibility – manifestly real in the Canadian context – that imposing ‘one size fits all’ punishments leads to far more injustices than it prevents. The above discussion has remained exclusively within an Anglo-American analytical context. Before concluding this section, however, another important thrust of critical opinion must be touched upon. This is the argument – founded upon considerable evidence – that the ideas, conventions, processes, and very language embodied in Canadian sentencing law offers scant resonance for the traditions and experiences of the country’s Indigenous communities.93 In its seminal decision in R. v. Gladue,94 the Supreme Court of Canada confirmed that the “unique” circumstances of Aboriginal offenders require a sentencing court’s particular attention.95 This, the Court ruled, includes adopting a “remedial” approach to the manifest over-incarceration of Aboriginal persons, by way of an enriched consideration of an Aboriginal offender’s cultural context, background circumstances and systemic disadvantage.96 Criminal 93 See e.g., The Report of the Aboriginal Justice Inquiry: The Justice System and Aboriginal People, vol. 1, by A.C. Hamilton and C.M. Sinclair (Winnipeg: Government of Manitoba, 1991). Many publications have been issued on Aboriginal-state conflicts in the area of criminal justice, but few so extensive as this seminal report. 94  1 S.C.R. 688 [Gladue]. 95 Ibid. at para. 37. The decision in Gladue interprets s. 718.2 (e) of the Criminal Code, which mandates a sentencing court to consider all sanctions other than imprisonment that are reasonable in the circumstances, “with particular attention to the circumstances of aboriginal offenders”. Section 718.2 (e) came into effect in 1996 as part of a broad legislative amendment to the sentencing provisions found in Part XXIII of the Code. 96 Ibid. at paras. 44, 82-85. 43 courts, after Gladue, were not to apply the law to “prefer certain categories of offenders over others”, but rather to reinvigorate Canada’s overall framework of proportionate, individualized sentencing to better reflect Indigenous understandings of justice, in process as well as product.97 There are suggestions that the clarion call issued by the Gladue decision has not been meaningfully heeded, at least not to the extent required for sentencing courts to substantively ameliorate Aboriginal experiences in the criminal justice system.98 As stated in this thesis’ Introduction, while I cannot speak to these dissatisfactions directly, neither can I ignore the important question of whether Aboriginal traditions, realities, and aspirations can be incorporated into Canada’s existing model of criminal justice, or whether distinct ideas and methods are required to realize truly appropriate processes and outcomes for these normative communities. The Gladue decision (like this thesis) imagines that the flexibility inherent in Canadian law, despite the system’s historic complicity in injustices perpetuated against Indigenous communities, is able to adjust to positively include Indigenous concepts and practices of resolving wrongs. I test this expectation within the empirical research that is presented in Chapters Three and Four. This research, as part of its intention to explore the moral acoustics of sentencing courts across a variety of contexts, encounters some practical applications and challenges of the Gladue decision’s demands in regards to how the voices of Aboriginal offenders are being heard in plea and sentencing proceedings. From the above review of jurisprudence, it is clear that Canadian law endorses tailored approaches to the sentencing of offences and offenders. All that is mandated, in most instances, is that dispositions reflect one or more of the sentencing principles set out in the Criminal Code, and, most of all, that they abide by the overarching ethic of proportionality. A number of countervailing factors, however, exert continual pressure 97 Ibid. at para. 37. 98 See Kent Roach, “One Step Forward, Two Steps Back: Gladue at Ten and in the Courts of Appeal” (2009) 54 Crim. L.Q. 470. See also Andrew Welsh and James R.P. Ogloff , “Progressive Reforms or Maintaining the Status Quo? An Empirical Evaluation of the Judicial Consideration of Aboriginal Status in Sentencing Decisions” (2008) 50 Can. J. Crim. & C.J. 491. 44 on this practice. Some of these forces, as they influence the ability of guilty pleas and ‘plea based’ courts to reflect the law’s expectation for contextually resonant, communicative decision-making, are explored in the following chapter. 1.6 Conclusion This chapter suggested that Canadian law pertaining to criminal liability, sentencing, and punishment is predicated on a theory of moral blameworthiness, moral responsibility, and moral proportionality. In the process of determining guilt, moral standards and defences operate to convict only those adjudged to shoulder personal, inexcusable accountability. Once this is established, the law authorizes, indeed expects, courts to consider a wide range of ‘relevant’ characteristics and circumstances in order to gauge and express the most appropriate moral orientation to the offence. Finally, sentences themselves are primarily constructed on an assessment of the gravity of this offence, and the responsibility of this offender. This, I have posited, is criminal law’s core anatomy. As we have seen, however, none of the three claims upon which this argument rests are absolute, crystalline, or without contention. At a minimum, then, this thesis proceeds on the basis that Canada’s criminal law and justice system, in its textual and theoretical essence, tries or purports to reflect, articulate and enforce a moral language of ‘just’ blame and its most ‘just’ response. The above guiding concepts, while they may be grounded in legislators’ and courts’ conceptions of what is basic, shared, or common across society, and while they manifest concern for victims’ grievances or loss, are primarily directed at the offender him- or herself. It is their wrong that a court confirms, their blame that it ascribes, and their punishment that it imposes. I proceed to develop this focus more fully in Chapter Two, which examines the third of my claims – for the sentencing process’s importance as site for the fulfilment and expression of all the law’s moral content and intention – in light of the host of practical challenges and intricacies that impinge upon this function. This next section of the thesis, and indeed the empirical studies that follow in Chapters Three and Four, place the communicative dimension of the sentencing process under particularly close scrutiny. And, as I will argue, there is no legal mechanism more 45 consequential – and fraught with difficulties – at this final stage of the criminal law process than the communication of plea, especially that which acknowledges guilt. 46 CHAPTER TWO: The Moral Compromises of Guilty Plea Justice 2.1 Introduction In Chapter One, I argued that the content of criminal culpability is primarily based on calibrations of moral blameworthiness, and that finding this fit, in terms of the gravity of an offence and the degree of responsibility of an offender, demands the active discernment of a sentencing court. I demonstrated how a court’s engagement with offenders themselves, as agents imbued with moral standing and possessed of relevant information and perspective, is important to the process of gauging the moral proportionality essential to the concept of punishment that Canadian law seems to privilege. This demand, I suggested, is best met by a sentence that conveys, with as much communicative clarity as possible, both why and how much an offender’s conduct is proscribed by society. Justice, seen in this light, is the considered fit of a punishment to this offender for this offence, and ought, ideally, to be etched out in as clear and comprehensive a manner as possible. I further posited that the law intends this to be done through a forum that gathers together the ‘appropriate’ actors for a process of engaged deliberation. I concluded that sentencing hearings – more than any other stage in the justice process – foreground the moral dimension of the law’s foundations and aspirations. It is one thing to advance these claims at the theoretical level. It is quite another, however, to defend such ideas, and advocate for their importance, in the ‘real world’ of criminal justice. The criminal law’s concern for communicative moral ordering can be seen to derail at many of the justice system’s junctures. This chapter, however, focuses principally on guilty pleas and their resultant resolutions of criminal charges. In doing so, I ask how Canadian sentencing courts may attempt to reinvigorate some of the moral authority and relevance that certain critics describe as generally – and systemically – hijacked or lost. Using these pessimistic interpretations as touchstones for my own enquiry, I explore how guilty pleas are manufactured in the pre-trial 47 process, moderated by professional representatives, and employed and understood as expressive mechanisms in sentencing. The plea is a significant – perhaps the significant – representation of the voice that courts give to and expect from defendants. We shall see that it communicates a very particular kind and content of information, which centrally affects the legal status of the speaker (defendant) and the structure and direction of the legal proceedings. In this respect, a defendant’s voice, as expressed in the plea, has quite clear and well-defined meaning. But such institutionally bestowed speech does not fully describe defendants’ ‘voice’, as it speaks or is silenced, heard, presumed, and interpreted in criminal proceedings. When the criminal defendant speaks, in a substantive moral sense, such speech is filtered through (and often walled up within) the institutional mechanism and institutional meaning of the plea. As this chapter seeks to demonstrate, this seemingly ubiquitous difficulty (of overlapping and mutually obscuring meanings) directly affects how sentencing courts are able to promote the moral ordering that Chapter One advanced as their most fundamental and appropriate function. Confining my exploration to the major constituents of plea-based criminal justice (being resolution discussions, guilty pleas, and sentencing hearings) I attend to the audibility, ideal and actual, of lay and professional participants’ normative orientations towards ‘wrong’ and ‘wrongdoer’. Meaningful moral communication between these actors in plea and sentencing proceedings is possible, I posit, to the extent that they are able and willing to share their normative ‘stories’ in a common tongue. But there is much, within and surrounding the articulation of the plea itself, that impedes the development and use of such a shared language. The moral ordering that is meant to vitalize criminal law can be dissipated by a host of countervailing pressures and concerns. I begin, in §2.2, by describing the general contours of this landscape, locating my more specific inquiries in a broader critical context. Section 2.3 then develops guilty pleas as the most significant – and most problematic – of the communicative mechanisms available to accused persons in Canada’s system of criminal justice. I outline the plea’s formal legal character and 48 requirements, and proceed towards a more nuanced understanding of the guilty plea’s meaning(s) and consequences. In §2.4, I shift away slightly from the plea itself, to consider its formation. I ask, specifically, how plea bargaining affects the capacity of guilty pleas to inform or advance engagement with the moral inquiries that s. 718.1 of the Criminal Code necessitates; namely, the gravity of this offence and the responsibility of this offender. The influence of Crown and defence lawyers in shaping the content and character of acknowledgments of guilt is particularly scrutinized in this section. Section 2.5, in turn, explores the impact that negotiated pleas have on post-conviction court processes. Here, with my focus specifically on the offender, I enquire into the use of statutory mechanisms that are formally available to enrich the content and communication of sentencing goals. Finally, §2.6 enquires into how defence counsel and judges channel how offenders themselves speak, and are spoken to, as moral actors in the sentencing process. I suggest that the direct and indirect influence of these professionals, when combined with the procedural and cultural pressures already confronting lay participants, profoundly impacts upon the viability of guilty plea-based sentencing hearings as meaningful conduits of moral content. 2.2 Diagnoses of Rushed Justice Criminal justice processes have long been explained by recourse to one of two interpretative models. Known as the “Crime Control” and “Due Process” models, both were first articulated over fifty years ago by the criminologist Herbert Packer.1 The Due Process model formally presupposes the legal innocence of defendants and accords each a spectrum of rights and protections that adhere throughout the system’s operation, from arrest to correction. Generally speaking, this is the model that most closely represents the contemporary Canadian approach to the adjudication of criminal 1 Herbert L. Packer, The Limits of The Criminal Sanction (Stanford: Stanford University Press, 1968) at 149ff. 49 offenders, as evidenced by the Charter’s enshrining of legal rights and the explicit importance accorded to adversarial methods and standards of proof. The Crime Control model, however, is perhaps more reflective of observable reality. Through this lens of understanding how justice systems operate, certainty and efficiency are privileged; presumptively strong cases are ushered towards convictions, while those flagged as problematic are whittled down or summarily withdrawn. This is the model, as Packer recognized, that is more apt to encourage, or coerce, negotiated guilty pleas.2 While features of both the Due Process and Crime Control models are observable in plea and sentencing practices in Canadian courts, neither was developed to account for a justice system’s promises or problems in the realm of moral ordering. Chapter One developed a framework of Canadian criminal justice’s promises in this regard, and this chapter encounters some of the moral problems faced by Canada’s prevailing guilty plea-based means of ‘ordering’ criminal justice. Before narrowing my inquiry to pleas and sentencing hearings themselves, this section introduces three more general critiques of Western criminal justice structures. Each supplements Packer’s bivalent thesis, and each assists in understanding the difficulties that sentencing courts encounter in upholding the communicative, intelligible kind of moral ordering that the law arguably expects them to practice. First, via an overview of British Columbia’s criminal court system, I locate one rationale for why sentencing courts tend not to act as forums of communicative moral engagement: they simply don’t have time. I then introduce two other empirically-based explanations of rushed, non-resonant justice processes: Malcolm Feeley’s critique of ‘procedural’ sanctions, and the scholarship that focuses on how cultural dynamics inhibit lay persons’ substantive involvement in a court’s operations. 2 Ibid. at 221ff. 50 2.2.1 A Snapshot of British Columbia’s Criminal Courts: Volume Overload? All criminal prosecutions in B.C. begin in Provincial Court, and a vast majority – over 90% by the Court’s own estimation3– are ultimately disposed of at this level of court as well. On average, almost 70% of prosecutions in the province result in findings of guilt,4 while the largest percentage of others – nearly another 25% - are ended by a stay of proceedings.5 While it is clear from these statistics that only about 5% of prosecutions result in not guilty verdicts or other dispositions (such as outright withdrawals or peace bonds) it is less easy to quantify the proportion of guilty verdicts that are obtained by way of plea as opposed to a contested trial. Considerable anecdotal and experiential evidence, however, supports the conclusion that the overwhelming majority of these cases are resolved via guilty plea.6 The judgments and sanctions that provincial courts mete out, therefore, can fairly be said to be substantially predicated upon an offender’s eventual admission of criminal culpability. These admissions, further, are made in abundance. In 2006-2007 fiscal year, 44,289 “total cases” were heard in adult criminal court in B.C.7 Other figures cite that an average of 85,000 Reports to Crown Counsel are forwarded from police to prosecutors 3 Provincial Court of British Columbia, “About the Court” (Victoria: Office of the Chief Judge of the Provincial Court of British Columbia, 2002), online: Provincial Court of British Columbia <http://www.provincialcourt.B.C..ca/aboutthecourt/index.html>. 4 The B.C. Prosecution Service reported that 69.8% of prosecutions in 2008/09 were disposed of by way of conviction: B.C. Prosecution Service, Annual Report, 2008/09 (Victoria: Ministry of Attorney General, 2009), online: Ministry of Attorney General <http://www.ag.gov.B.C..ca/prosecution- service/pdf/CJB_AnnualReport-2008_09.pdf> at 10. 5 A ‘stay’ is (almost always) a Crown-initiated request to the court for the prosecution to be discontinued. There are many possible reasons for such requests, principally including the Crown’s recognition of insufficient evidence or other weaknesses that reduce the likelihood of conviction below an acceptable level. The cited figure for 2008/09 was that 23.4% of all prosecutions resulted in a stay of proceedings: Ibid. at 10. It is unclear, however whether this figure includes the many cases in which a defendant pleads guilty to only some of the charges in a multi-count prosecution, with the others being stayed. 6 Joseph Di Luca, “Expedient McJustice or Principled ADR? A Review of Plea Bargaining in Canada” (2005) 50 Crim L.Q. 14 at 15, quotes a figure of 80% in the Ontario context, while Justice Gilles Renaud, in the introduction to his text Speaking to Sentence: A Practical Guide (Toronto: Thompson Carswell, 2004) estimates that “over 95% of cases result in a guilty plea of some kind”. 7 Statistics Canada, table 252-0045 “Cases in adult criminal court, by province and territory (British Columbia 2006/2007)” (Ottawa: Statistics Canada, 2009), online: Statistics Canada <http://www40.statcan.gc.ca/l01/cst01/legal19k-eng.htm>. “Total cases” comprises both Criminal Code offences (approximately 87% of this total) as well as other federal statute-based prosecutions, such as those conducted under the auspices of the Controlled Drugs and Substances Act, S.C. 1996 c. 19. 51 in the province every year, which encompass approximately 92,000 accused persons and 165,000 criminal charges.8 The Provincial Court of B.C. reports hearing an average of 100,000 adult criminal cases each year.9 More specifically, a 2006 survey of provincial court judges in B.C. reported that judges individually conduct an average of 55 sentencing hearings each month.10 These findings reflect commensurate burdens on Crown and defence counsel to ‘get through’ lengthy court lists.11 It would seem reasonable to conclude, from these statistics, that B.C.’s courtrooms can be very busy, time-pressured places, which afford little room for the comprehensive, communicative engagement of non-professional perspectives.12 These pressures, of course, cannot be discounted as a principle reason why criminal courts are not more solicitous of the values and voices of lay participants.13 In Chapter Four of this thesis, I empirically assess case volumes as a variable of the moral ordering that plea courts can be heard to practice. Some observers, however, have argued that other factors are equally if not more responsible for the justice system’s shortcomings in this regard. Two such critiques are outlined below. 8 B.C. Ministry of Attorney General, “Ensuring an Effective Criminal Justice Response to Violence Against Women” by Brian Rendell (Victoria: Ministry of Attorney General, 2009), online: International Centre for Criminal Law Reform and Criminal Justice Policy <http://www.icclr.law.uB.C..ca/files/VAW/04%20Brian%20Rendell%20VAW%20presentation.pdf>. These figures likely comprise youth as well as adult files. 9 Provincial Court of British Columbia, 2008/2009 Annual Report (Victoria: Office of the Chief Judge of the Provincial Court of British Columbia, 2009), online: Provincial Court of British Columbia <http://www.provincialcourt.B.C..ca/downloads/pdf/annualreport2008-2009.pdf> at 11. 10 Justice Canada, Victim Impact Statements at Sentencing: Judicial Experiences and Perspectives by J.V. Roberts and Allen Edgar (Ottawa: Department of Justice Canada, 2006) at 1. 11 It is important to acknowledge that there is much variation in the volume of caseloads, in terms of quantity, type, and context. Considering only absolute numbers, this variation can range from very high volume urban centres to circuit courts that visit small communities only a few times per year. See, for an illustration of this point, my empirical findings from four provincial courts in B.C., presented below in Chapter Four. 12 See, for example, Provincial Court of British Columbia, Report on Backlog in Vancouver Adult Criminal Court, by the Main Street Criminal Procedure Committee (Victoria: Office of the Chief Judge of the Provincial Court of British Columbia, 2005), online: Provincial Court of British Columbia <http://www.provincialcourt.B.C..ca/downloads/pdf/MainStreetCriminalProcedureCommitteeReportonB acklog.pdf>. 13 See Brian A. Grossman, “Conflict and Compromise in the Criminal Courts” (1968-1969) 11 Crim. L.Q. 292, at 298. See also Milton Heumann, “Back to the Future: The Centrality of Plea Bargaining in the Criminal Justice System” (2003) 18 Can. J.L. & Soc. 133, at 136, referencing George Fisher’s text Plea Bargaining’s Triumph (Stanford: Stanford University Press, 2003). 52 2.2.2 Feeley’s Model of Pre-Sentence Procedural Sanctions Malcolm Feeley’s study of American plea courts, while conducted over thirty years ago, provides considerable insight into a problem that endures across jurisdictions.14 He disputes the common contentions that heavy caseloads,15 bureaucracy,16 a lack of skilled personnel,17 and/or pervasive plea bargaining18 “add up to a complete account of what shapes the decision process”.19 As an alternative to the dichotomous ‘Due Process’20 and ‘Plea Bargain’21 models for explaining the brand of ‘justice’ that courts privilege, both of which focus on outcomes, Feeley posits that an analysis of the process itself, from arrest through to disposition, tell us more about how the criminal justice system punishes defendants. This is a model that accords greater determinative weight to the implicit, systemic burdens and coercions placed upon accused persons than the explicit judgments and sentences that officially describe the justice that courts mete out. Feeley does not suggest that normative assessments are not being made in criminal law processes, only that they cannot be easily discerned either through official rationales or in the “noisy exchanges and rushed judgments” that characterize most plea and sentencing proceedings.22 He recognizes that 14 Malcolm Feeley, The Process is the Punishment (New York: Sage Foundation, 1979). 15 Ibid. at 12. He suggests that courts actually “organize their work so that they must operate at a frantic pace”. 16 Ibid. at 12-13. Criminal courts, Feeley states, do not exhibit the central features of bureaucratic systems, being characterized by discretion, lacking strict hierarchies, and more “market-place [than]… assembly line”. 17 Ibid. at 14. He finds no evidence that more or ‘better’ professionals leads to improvements in regards to the considered engagement of lay participants. 18 Ibid. at 12-14. The adversary system, Feeley suggests, has never been fully operative, and people plead guilty for many reasons, including as a result of ‘losing’ legal gambits in the pre-trial process. 19 Ibid. at 12. 20 Ibid. at 26-7. This model privileges procedural protections, and assumes a ‘win/loss’ mentality focused primarily on formal end results. But Feeley suggests that in practice, strict results are not the overriding concern of either the prosecution or accused. 21 Ibid. at 28. This is a narrower variant of Packer’s Crime Control model. Feeley acknowledges that plea bargaining benefits both parties with certainty, efficiency, and cost-reductions, but, as mentioned above, questions whether it provides the best account of a court system’s normative ordering. 22 Ibid. at 8. 53 law is, above all, a normative ordering. It gives expression to deeply felt sentiments within a society. Courts are staffed with representatives of this society, and what they do is in part a function of their own sense of justice.23 He suggests, however, that [t]o the extent that …’by-product’ costs of the pretrial process loom large in the minds of the accused, courts are not and cannot be what they claim they are, for these costs shift the locus of sanctioning away from the formal stages of adjudication and sentencing onto the process itself.24 Prison sentences are dwarfed by pre-trial detention, fines by the costs of mounting a defence or lost wages, and substantive crimes by an accumulation of charges for breaching bail conditions or missing court.25 In this unfocused, uncertain environment, decisions about what a particular defendant deserves are made in the colloquial barter between prosecutors and defence lawyers. These interlocutors assess a spectrum of factors (some so complex and subtle as to be invisible even to the ones employing them26) to arrive at a case’s ‘worth’. This bartering, Feeley suggests, encompasses multiple conceptions of substantive justice: the adjudication of the act itself, the settlement of disputes, and a consideration of the actor, which tempers abstract principles with an eye to how they impact on real persons and situations.27 Further, since the “theoretical exposure” (i.e. maximum sentence) of most crimes is much harsher than what a defendant is realistically facing, defendants are easily convinced that their pleas represent ‘good deals’. This affords defendants a sense of partial victory, and their representatives a chance to show their usefulness.28 All of the factors weighed in such informal bartering processes are, of course, amenable to being aired in the formal, public forum of sentencing courts. The normative force and even relevance of this official apparatus, however, is exhausted by the explicit and 23 Ibid. at 15. 24 Ibid. 25 Ibid. at 30. 26 Ibid. at 124-5. 27 Ibid. at 22-4. This ‘equitable’ assessment is reflected in the high number of stayed or withdrawn charges, especially in cases where it’s accepted that the appropriate penalty has already been paid. See ibid. at 274. 28 Ibid. at 190-192. 54 implicit sanctions and trade-offs already made in the pre-trial process.29 Feeley contends that this happens as a function both of the instrumental pressures borne by defendants, and the influence of professionals who render proceedings both technical and routine. It also occurs irrespective of caseload pressures. As he found in a comparative assessment of high-volume and low-volume courts, the basic tasks of both courts “are handled in the same rapid and perfunctory manner”.30 It is not volume, therefore, that erodes the criminal law’s moral authority and expressive aspirations, but the ‘law-less’ informal sanctions and unsupervised discretion that Feeley observed in both contexts. Although, he asserts, appropriate results may well be reached in individual cases, the justice system itself is indelibly weakened by the potency of pre- trial coercions.31 Feeley’s empirical critique seriously challenges Chapter One’s argument that morally engaged discernment and communication is a core aspect of courts’ and participants’ responsibilities at the plea and sentencing stage of criminal proceedings. As he demonstrates, factors such as pre-trial detention and procedural delays allow informal means of ordering to trump a justice system’s avowed mechanisms, expectations, and even authority. In addition to these ‘unintentional’ distortions, more pointed critiques have been advanced to explain the criminal justice system’s failure to adequately function as a site for the communicative moral ordering of wrongs and wrongdoers. These include analyses that hold the very culture of the law and legal professionals responsible for impeding and devaluing the (moral) perspectives of lay participants. The following section summarizes this general argument. 2.2.3 The Contorting Cultures of Courts The influence of lawyers in producing efficient, disciplined guilty pleas has been a subject of critique and discussion for decades. Abraham Blumberg famously assailed 29 Ibid. at 275. 30 Ibid. at 260. 31 Ibid. at 289. 55 defence counsel for contributing to the “confidence game” he observed playing out in an American jurisdiction in the 1960s. Guilty pleas, he contended, were engineered by lawyers who sacrificed “ideological and professional commitments” to clients in favour of maintaining self-interested relationships with other actors in the institutional structure.32 This, perhaps the most far-reaching condemnation of defence counsel as “double agent[s]” in an environment of coerced resolutions and hollow due process protections,33 was reassessed by Debra Emmelman in her study of public defenders in California.34 The lawyers she observed, unlike those under Blumberg’s gaze, were sincerely motivated to advocate on behalf of their indigent clients. Instead, they were constrained, in the process of advising and representing those pleading guilty, by a cultural environment that frowned, not merely on crime, but on clients’ assumptions, impressions, worldviews, and interpretations.35 This, Emmelman concluded, was the main reason why the lawyers in her study tended to prefer plea bargained outcomes and strict ‘information control’ during sentencing hearings, rather than allow their clients to freely speak. This approach was simply the best way to shepherd defendants through a hostile normative order that pejoratively assessed, not only their alleged criminal conduct, but their very character and worldview.36 The clear implication, from both Blumberg and Emmelman’s studies, is that there is little meaningful chance for defendants to effectively address the system’s interpretations of who they were and what they had done. Defendants in these settings are thus unable either to acknowledge, resist, or offer an alternative understanding of the moral valuations that implicitly and explicitly occurred in course of their cases. 32 Abraham S. Blumberg, “The Practice of Law as a Confidence Game” (1967) 1:2 Law & Soc. Rev. 15 at 19. 33 Ibid. at 31. See also Andrew E. Taslitz, “The guilty plea state” (2008) 23:3 Criminal Justice 4, for a less incendiary updating of this argument. 34 Debra S. Emmelman, Justice for the Poor: A study of criminal defense work (Burlington VT: Ashgate Publishing, 2003). 35 Ibid. at 37. 36 Ibid. at 103. 56 These concerns can perhaps be more deeply understood as supporting sociological interpretations on the fraught nature of “subaltern” speech.37 That is, plea and sentencing hearings may provide the opportunity – even expectation – for lay participants to ‘speak’, but, beyond and within the instrumental obstructions already noted, the voices that these (constructed) actors are accorded may not (and perhaps cannot) be their own. Emmelman observed this operating in relation to indigent defendants in California,38 and other studies have considered how the mainstream criminal justice system’s cultural framework compounds the “disordering” of Aboriginal individuals and communities.39 Such studies, which focus on the distorting effects that unequal power arrangements have upon the agency and identities of disempowered subjects, help to explain the silence that many lay participants exhibit in the plea and sentencing process. These critiques also question the dominant law’s assumption, set out in the context of Canadian sentencing law in Chapter One, that its processes and structures are able to equitably offer opportunities for meaningful participation to all who are bound by the law’s authority. As mentioned, Chapters Three and Four will examine some of the practical applications of this assumption, especially in regards to the audibility of Aboriginal perspectives in sentencing hearings. 2.2.4 From General Critiques to Specific Enquiries: Focusing on Guilty Pleas Explicitly or implicitly, the perspectives outlined above recognize that guilty plea-based justice is the norm in the contexts they consider. As §2.2.1 briefly showed, this reality remains the norm in contemporary British Columbia, as a representative Canadian 37 See Gyatri Chakravorty Spivak, “Can the Subaltern Speak?” in Marxism and the Interpretation of Culture, Cary Nelson and Lawrence Grossberg, eds. (Urbana, IL: University of Illinois Press, 1988) at 271. By using the term “subaltern”, I do not mean to suggest that this concept, which Spivak and other scholars have defined in very specific sociological contexts, encompasses all lay participants in criminal justice proceedings. I refer to it here because, in my experience and estimation, it captures something important about many of those whose histories, circumstances, and very bodies have been cast into the law’s gaze. Presumed, by this structure, to know certain things about its operation and purpose, and defined by it in a variety of ways, disempowered constituents are arguably unable to dispute or even respond to these characterizations, at least within the formal avenues the law affords. 38 Emmelman, supra note 34. 39 See e.g., Hadley Friedland, “Different Stories: Aboriginal People, Order, and the Failure of the Criminal Justice System” (2009) 72 Sask L. Rev. 105. 57 jurisdiction. As the empirical studies in the following two chapters will illustrate, there is a diversity of ways to organize and practice ‘guilty plea justice’, which manifest commensurately diverse patterns of participant engagement with the moral concerns at the heart of criminal law. The formal nature and import of the plea itself, however, is more or less the same across all of these contexts, and it forms the linchpin of this chapter’s enquiries. While practically ubiquitous, the guilty plea has not itself attracted a great deal of scholarly focus. Oonagh Fitzgerald’s 1990 analysis of the plea’s status and use in Canada stands as the leading academic text upon the subject.40 Her work continues to present a challenging critique of how Canada’s law and justice systems have misused a most important mechanism. Fitzgerald argues that, despite what the law may officially expect, overt and covert coercions embedded in the court process undermine the reliability of the guilty plea as a ‘free’ admission of guilt. Indeed, she states, “few guilty pleas could be described as entirely voluntary, given that nearly every guilty plea must be influenced to some extent by the hope of gaining a sentencing advantage”.41 This situation, for Fitzgerald, is to some extent unavoidable in a system that holds out the expectation of mitigated punishment in exchange for acceptances of responsibility.42 For her, however, the plea’s professional mediators – most pointedly defence counsel and judges – bear both the ability and onus to minimize the dangers this situation creates. Her arguments are considered at various points in several of the following sections, and, together with the more general criticisms introduced above, are reassessed in this chapter’s conclusion. In the rest of this chapter, I locate the guilty plea as a key focal point for understanding how the criminal law’s concern for moral ordering is, in practice, compromised or attenuated. 40 Oonagh E. Fitzgerald, The Guilty Plea and Summary Justice (Toronto: Carswell, 1990). 41 Ibid. at 138. 42 I discuss the status and rationales for this ‘plea discount’ below, in §2.3. 58 2.3 The Nature and Import of Guilty Pleas in Canadian Law In this section, I examine the guilty plea as legal mechanism, including how a plea’s legal use and meaning influences its ability to inform a court’s work in terms of moral ordering. 2.3.1 The Plea’s Essential Elements In Canada, a guilty plea does significant work in procedurally restructuring the entire justice process from that point forward. It formally establishes an acknowledgment of the “essential legal ingredients” of a given offence.43 It relieves the Crown of the responsibility of proving guilt beyond a reasonable doubt, terminates the presumption of innocence, transforms the conveyor’s legal identity from accused to offender, “abandons [their] non-compellability as a witness and… right to remain silent and surrenders [the] right to offer full answer and defence to a charge”.44 In performing these functions, a guilty plea establishes the legal and factual basis for the next, and last, stage in court-based criminal proceedings, the sentencing hearing. Its instrumental status and effect, therefore, is reasonably clear. This prescribed aspect of its character operates as the non-negotiable, unambiguous baseline of what the guilty plea is and does. In this respect, a plea of guilt might be taken to lead to a substantial amount of clarity in sentencing proceedings. While it arguably does so in terms of factual and legal essentials, however, there is far less certainty around the question of whether a guilty plea in Canada conveys an acceptance of personal responsibility for a crime, an acknowledgment that it was wrong, or an expression of remorse.45 To the degree that a court, victim, offender, or community considers it important to pronounce upon or scrutinize these qualities, they must look beyond the confines of this single utterance. Although the law constructs guilt to encompass a core of moral culpability, it is 43 R. v. Gardiner,  368 S.C.R. 2 at 414. 44 Adgey v. R. (1973) SCC, 177 at 183, per Laskin J. 45 See Richard Weisman, “Being and Doing: the judicial use of remorse to construct character and community” (2009) 18 Soc. & Legal Studies 47. I discuss Weisman’s work in greater detail below, at §2.6.2. 59 dangerous to give its official admission much weight, either positive or negative, without attending carefully to the practical context in which a plea is given. Yet even when analyzed in this light, a plea conceals as much as it clarifies. 2.3.2 The Plea’s Uncertain Meaning The word “guilty” itself carries weight that a purely formal or legalistic framework cannot uphold. 46 Judges, victims, and indeed all within the community of interest that a given crime creates, may reasonably seek to perceive, within or through the plea, the redeeming seeds of remorse, accountability, and willingness to change. There exists a gap, however, between a legal order that defines and determines its expectations and impacts through a formalistic, procedural lens, and one that seeks to impart normative coherence upon its subject matter via more contextually rich interpretations. This section explores the depth and implications of this gap. Although the act of pleading guilty to an offence often encompasses – and disguises – a complex skein of instrumental and normative impulses, in Canada it is the only alternative to proceeding to trial. Unlike in many parts of the United States,47 Canadian law permits no middle ground for accused persons between their acceptance of all or none of the ‘essential’ elements of a crime. Depending on one’s perspective, this rule either prevents two-faced, selective admissions of responsibility, or unduly restricts an accused person’s ability to resolve charges with maximum efficiency and minimum capitulation. A greater variety of available pleas might be expected to contribute to more communicative precision and intelligibility, thereby giving ground to more informed and 46 See George Fletcher, The Grammar of Criminal Law, vol. 1 (New York: Oxford University Press, 2007) at 299-300. 47 See Stephano Bibas, “Harmonizing Substantive Criminal Law Values and Criminal Procedure: the case of Alford and Nolo Contendere pleas” (2003) 88 Cornell L.R. 1361. In many states, albeit with prosecutorial and/or judicial consent, accused persons can enter pleas that surrender legal innocence but do not acknowledge factual, moral, or extrinsic legal responsibility. Alford pleas function to allow a court to convict a defendant, in instances where there is evidence of legal guilt but the defendant is not willing to admit responsibility. It is similar to (really a subset of) a no contest plea, but used in more serious cases where this plea is not available. I focus on the more generic and widely employed no contest plea in this section. 60 focused sentencing hearings. There is no empirical evidence, however, that they have supported this type of normative calibration. Indeed, the use of so-called “Alford” and “no contest” pleas in the US has drawn criticism for draining the justice process of moral substance. Stephanos Bibas, for example, contends that these pleas “allow guilty defendants to avoid accepting responsibility for their wrongs”, thus undermining the law’s core moral messages and impeding the healing of both offenders and victims.48 Bibas suggests that no-contest pleas are often made in the name of procedural efficiency and to secure strategic advantages such as reduced punishments and the maintenance of defences for subsequent civil trials. He also argues that they “risk convicting innocent defendants and [creating] the perception that innocent defendants are being convicted”.49 Bibas privileges and defends the justice system’s functions of persuasion (i.e. encouraging accused persons to voluntarily accept their guilt) and prosecution (i.e. seeing cases through a contested trial, when guilt is denied). These twin functions must be vigorously maintained, he argues, if the ever-tenuous balance between ‘justice’ and ‘system’ is not to list dangerously from the former to the latter. Courts must not shy away from trials, he says; they “serve not only to acquit innocent defendants, but also as morality plays to teach guilty defendants and vindicate their victims and the community’s moral norms”.50 A robust endorsement of trials as a means of resolving guilt would also bolster the moral integrity of the system, Bibas argues, and thus lead to more meaningful, cathartic acknowledgments of responsibility. He reasons that “confessions in open court, even if induced by some external pressure, can begin to breach the dam of denial” that he sees as obstructing the therapeutic (if difficult) process that begins with the acceptance of having done wrong.51 Supporters of the no contest plea, by contrast (whom Bibas refers to as “proceduralists”) uphold its “liberal emphasis on freedom of contract, autonomy, and 48 Ibid. at 1363. 49 Ibid. at 1366. 50 Ibid. at 1361. 51 Ibid. at 1397. 61 informed choice”.52 As this argument goes, the law shouldn’t force people into the cognitive dissonance caused by having to plead guilty (for reasons of strategy or efficiency) while maintaining innocence. No contest pleas are thus a reasonable compromise, given that the justice system has limited appetite and capacity either to prosecute a substantial number of charges, or to persuade defendants who are reluctant to accept the more personal aspects of responsibility (whether because they are innocent, defiant, or in denial). In this way, supporters of no contest pleas contend, the system reaps the benefits of streamlined outcomes in the vast majority of cases in which a trial is unnecessary, and defendants resolve their cases without incurring the unnecessary discomfort of admitting full (moral) guilt.53 The arguments that are put forward in defence of no contest pleas can be interpreted as explicitly or implicitly favouring a model of criminal justice that is much less concerned with moral ordering than with efficient legal resolutions. This is a subject of enduring, deep-seated debate in both Canada and the US. But as mentioned above, Canadian law has, thus far, not afforded accused persons the option of pleading no contest. Moreover, Canadian law brooks no equivocation regarding the admission required by a plea of guilt. With an exactitude that Bibas would likely applaud, Canadian courts expect defendants to either accept ‘essential’ responsibility for their crimes,54 or proceed to trial. Does this enforced choice of starkly opposed options, then, facilitate the moral integrity and engagement of the kind Bibas articulates? In a sense, the above question is immune to numerical analysis, but both Canada and the US have high rates of ‘guilty plea’ resolution.55 At first blush, this weakens the 52 Ibid. at 1373. Bibas cites Frank Easterbrook, “Criminal Procedure as a Market System” (1983) 12 J. Legal Stud. 289, as one of the leading proponents of this perspective. 53 See, for an articulation of the market efficiency argument, Easterbrook, ibid at 320. For an expansion of the perspective that focuses on the avoidance of defendants’ shame and embarrassment, see Jonathan Kaden, “Comment: Therapy for Convicted Sex Offenders: Pursuing Rehabilitation Without Incrimination”, (1998) 89 J. Crim. L. & Criminology 347. 54 As discussed above, in §2.3.1, this comprises admission of the actus reus (“guilty act”) and mens rea (“guilty mind”) that together are necessary to establish criminal culpability. 55 See, for the latest US figures, United States Courts Statistics Division, Caseload Statistics 2009, especially table D-4 “US District Courts – Criminal Defendants Disposed of, by Type of Disposition and Major Offence 62 suggestion that American defendants are employing their added options in a widespread way to hedge responsibility,56 or that recalcitrant defendants proceed to trial in greater numbers when those pleas are unavailable. There is, of course, a diversity of factors and motivations impinging on the decision to plead. Some are intrinsic to the individual; senses of remorse, duty, or honesty, for example, are not dependent on the nature or choices of the system that calls them to account, although structural factors may influence whether and how these feelings manifest. Others are related to the offence – serious or subjectively indefinite charges (those that hinge on the interpretation of legal terms such as criminal negligence, for example) are less likely to result in guilty pleas, perhaps because people are unsure if they are guilty or have little to lose by fighting it out in court.57 Similarly, gaps or inadequacies at the investigative stage will likely prompt fewer guilty pleas (and more dropped charges) than ironclad cases. Other factors, however, are particular to the institutional context. It seems that the availability and impact of ‘mid-way’ pleas has been analyzed, and either supported or assailed on both sides of the Canada-US border,58 primarily on the basis of ideological assignations of criminal law’s purpose and capabilities. The argument over no contest pleas thus reveals fundamental disagreements as to the criminal law’s appropriate and possible normative orientation. Based on Bibas’s logic, Canada should be somewhat further ahead of the US in terms of how the plea may be used to buttresses or inform substantive moral values. As I explore further below, however, this is far from clearly so. While an in-depth comparative analysis is beyond the scope of this thesis, I proceed to suggest that, even though Canadian law may, by its superficial construction, appear to privilege moral ordering over procedural efficiency, (excluding Transfers)”, online: Administrative Office of the US Courts <http://www.uscourts.gov/Viewer.aspx?doc=/uscourts/Statistics/FederalJudicialCaseloadStatistics/2009/ tables/D04Mar09.pdf>. 56 Nor, however, are these pleas made in a negligible proportion of cases. No statistics are apparently kept as to the incidence of no contest and Alford pleas in the US, but Bibas’ informal survey located approximately 18,500 reported no contest and 2500 Alford pleas, the majority of which are made regarding sexual and violent offences. Bibas, supra note 47 at 1376. 57 See Avishalom Tor, Oren Gazal-Ayal, and Stephen M. Garcia, “Fairness and the Willingness to Accept Plea Bargain Offers” (2010) 7 J. Empircal Legal Stud. 97. 58 See Frederick Forsyth, “A plea for Nolo Contendere in the Canadian Criminal Justice System” (1997- 1998) 40 Crim. L.Q. 243. 63 guilty pleas have come to be used in a way that obstructs the former purpose in favour of the latter. 2.3.3 The Plea’s Cross-Purposes In keeping with Canada’s express commitment to certainty in convictions, a plea of guilt is not legally valid until accepted by the court. It will be set aside if a judge determines it was not made voluntarily or is not an unequivocal acceptance of the essential elements of the charge. A plea of guilty is also liable to be refused or vacated if it is established that the accused does not adequately understand its nature and consequences, including that any sentencing agreement between Crown and defence is not binding on the court.59 Yet despite this exacting standard, guilty pleas are the predominant means of resolving cases. I do not accept, in this thesis, that this widespread and enduring situation is substantially due to the intrinsic willingness of accused persons to submit themselves to judgment. All other factors being equal, even when defendants do feel remorse and responsibility, the countervailing impulses of fear and embarrassment would arguably repress many voluntary admissions of guilt. But although not grounded in (or, indeed, countenanced by) Canada’s textual legal framework of statutes and jurisprudence, the law, as Fitzgerald has argued, has evolved an implicit structure of pressures and enticements that exerts powerful influence on accused persons to plead guilty. While for some the decision to plead guilty may be substantially driven by remorse, and for others the same decision may be motivated by entirely instrumental reasons, a veil is cast over this spectrum of normative rationales by the plea’s function as a means of achieving systemic efficiency. Without concerted effort on the part of parties and/or process, the presence and range of moral orientations that are enveloped in guilty pleas tends to remain muddled and uncertain. It can be argued, of course, that this uncertainty has its own instrumental purpose; the justice system simultaneously benefits from the procedural efficiencies that guilty pleas produce, while also mining 59 Criminal Code of Canada, at s. 606(1.1). See also Don Stuart, Ron Delisle, and Tim Quigley, eds., Learning Canadian Criminal Procedure, 9 th ed. (Toronto: Thompson Carswell, 2008) at 715. 64 normative legitimacy from pleas’ ostensible status as admissions of moral responsibility. As I develop below, while this perspective does have considerable persuasive force, there is also evidence for maintaining less cynical expectations of the guilty plea’s role in our overall system of justice. This role, and any attempts to reconcile its cross-purposes outlined above, cannot be adequately understood apart from a consideration of the guilty plea’s most common means of formation. Accordingly, the next section explores the negotiation or bargaining stage of criminal proceedings. 2.4 The Resilience of Plea Bargaining in Canadian Justice In a system of justice that is founded on the presumption of innocence and proof beyond a reasonable doubt, but which must afford these principles to legally represented defendants,60 who appear before judges willing to hold the prosecuting state accountable for its promises,61 trials must necessarily be rare. Guilty pleas, without coincidence, are the most common procedural means by which criminal prosecutions are disposed. There is also anecdotal evidence that a negotiation practice (known in official parlance as ‘resolution discussions’, and more colloquially as ‘plea bargaining’) is responsible for assuring both the quantum and the substantive content of “guilty plea justice” that has become so widespread in Canada and many other jurisdictions.62 Plea bargaining in Canada is a somewhat ambiguous, poorly-bordered concept, which encompasses everything from informal hallway conversations between counsel to pre- arranged meetings mediated by a judge. Indeed, the term itself has proven 60 Due to cutbacks in legal aid programs in many Canadian jurisdictions, legal representation is less comprehensively available than it has been in recent decades. Many indigent defendants charged with minor crimes must represent themselves if they wish to proceed to trial. In my experience as a practitioner, however, this has not resulted in substantially more contested trials, perhaps due to the fact that attractive resolution options are still being offered by prosecutors, defendants are intimidated by the prospect of self-representation, and/or duty counsel are made available to assist people in pleading guilty. 61 See John Langebein, The Origins of the Adversary Criminal Trial (New York: Oxford University Press, 2003) at 26, who found that judges in pre-modern England “sat at the King’s pleasure” and thus heavily favoured the prosecution. By contrast, contemporary Canadian judges are independent and sworn to uphold the fairness of the adversarial system. 62 Di Luca, supra note 6 at 15. 65 controversial, with both proponents and detractors focusing on insinuations of commodified, bartered justice to either condemn the practice or seek to rebrand it under the more innocuous (but no less ambiguous) banner of ‘resolution discussions’.63 Irrespective of the appellation (I use them interchangeably here) or their respective insinuations, it is clear that some manner of pre-plea negotiation between justice professionals is an entrenched feature of Canadian criminal justice, as it arguably long has been.64 There is a suggestion, moreover, that despite official administrative attempts to recuperate and recast the practice as a “mandatory and desirable component of our modern justice system”, plea bargaining remains at its most basic a process whereby an accused person "bargains" with the prosecution in the hope of receiving the most favourable treatment possible. Concessions by accused, most notably concessions of guilt, are the currency with which the favourable treatment is purchased.65 It is tempting to deduce from this view, which is not seriously refuted in the literature, that plea bargained cases – namely those in which the charges, facts and/or sentencing recommendations have been agreed upon beforehand by counsel – drain the formal sentencing hearing of moral relevance, resonance, and authority. Indeed, this is among the conclusions arrived at by Feeley in his study of American plea court justice. Even presuming, as I do, that allegations of criminal conduct provoke normative responses (be they shared, contested, or entirely divergent) among those whom they touch, such an instrumentalist interpretation of plea bargaining suggests that the practice substantially prevents in-court proceedings from meaningfully engaging with these perspectives. This is true, I argue in this section, to the extent that Crown Counsel are motivated to ‘resolve’ cases solely according to the instrumental objectives of efficiency and certainty, defendants accept or reject offers on the basis of a similarly instrumental, cost/benefit analysis of expected outcomes, and victims wish or are given little or no say 63 Ibid. at 16. 64 See Milton Heumann, supra note 13 at 135, discussing George Fisher’s historical findings. 65 Ibid. at 18. 66 in negotiations. As Fitzgerald baldly states, “[lawyers’] motives for agreeing on the guilty plea may be quite inimical to concerns of justice”.66 An instrumentalist reading of the practice also implies that plea bargaining processes can forestall or control judicial discretion over the sentences that are ultimately imposed. Each plank of this interpretation is deeply problematic to an understanding of criminal justice that privileges the discernment and expression of calibrated moral values. But despite the persuasive arguments and considerable anecdotal evidence that plea bargaining practices have such an overwhelming effect on the manufacture, meaning, and discharge of guilty pleas, other voices suggest that the normative purpose of criminal law is not entirely displaced by the pressures, temptations –and enduring prevalence – of negotiated settlements. Below, I explore two general sets of perspectives, which speak to both sides of this debate. 2.4.1 Professional Perspectives One pillar of support for plea bargaining comes from the prosecution. Crown Counsel’s discretion to set the terms and tone of resolution discussions, although significantly moderated by extrinsic factors,67 channels a stream of normative content. Resolution discussions themselves, of course, defy direct observation or analysis due to their private and individual nature, but there are signals from the prosecutorial perspective that plea bargaining is intended, at least, to focus a court’s concern for moral ordering, not confound it. The B.C. Prosecution Service has issued extensive guidelines for resolution discussions,68 which are based on the principle that their acknowledged efficacy in streamlining cases ought only to bolster the proper functioning of the justice system. The guidelines state: 66 Supra note 40 at 215. 67 Considerations impinging on the Crown’s discretion at this stage include a particular office’s caseload and the quality of investigations, as well as the informing backdrop of legislation, policy, and (real or apprehended) public opinion. 68 B.C. Ministry of Attorney General, Crown Counsel Policy Manual, “RES-1: Resolution Discussions and Stays of Proceedings”, October 2, 2009, online: B.C. Prosecution Service <http://www.ag.gov.B.C..ca/prosecution-service/policy-man/pdf/RES1-ResolutionDiscns_SOPs- 2Oct2009.pdf>. 67 Crown Counsel must act in the public interest at all times to ensure that the integrity of the criminal justice system is protected and nothing is done to bring the administration of justice into disrepute.69 Much about these concepts, of course, is open to interpretation. The clear implication, however, is that plea negotiations are not merely about achieving certainty and efficiency. Mary Dickie, a Crown Attorney in Ontario who has written about the Crown’s role in this regard,70 highlights the flexibility that resolution discussions can promote, in terms of time but also “flexibility in approach, such as allowing victims to be present for parts of the meeting… where there is a need for an apology that is appropriate for the case as part of the resolution”.71 As is reflected in B.C.’s guidelines, Dickie also stresses that proposed resolutions cannot infringe the fundamental sentencing principle of proportionality as to the gravity of the offence and degree of responsibility of the offender.72 Both the Ontario and B.C. guidelines stipulate that resolution discussions must only be conducted in a context where a defendant accepts “legal and factual guilt” to a charge.73 Dickie acknowledges that there may be occasions where an accused maintains innocence but still wishes to negotiate a plea. This is precisely the situation accommodated in US courts that accept Alford pleas, but Canadian courts – and prosecutors – are less sanguine about the dissonance this seems to involve. Dickie advises that, in these cases, “Crown Counsel… should be reluctant to enter into further plea discussions beyond initial screening… [which] should be the most reasonable position the Crown has to offer at this stage”.74 She concludes, in regards to the practice in general, that [p]roperly conducted resolution discussions are not “plea bargaining” at all, but 69 Ibid. at 2. 70 Mary Dickie, “Through the Looking Glass – Ethical Responsibilities of the Crown in Resolution Discussions in Ontario” (2005) 50 Crim. L.Q. 128. The relevant policy framework is substantially the same in Ontario and British Columbia. 71 Ibid. at 136. 72 Ibid. at 139. 73 Supra note 68 at 1. The Ontario directives state that the Crown must not accept a guilty plea “knowing that the accused is innocent”. Dickie, ibid. at 142. 74 Dickie, supra note 70 at 142. 68 merely an extension of the screening process in an effort to find the correct result for a matter before the court. They allow Crown Counsel, in co-operation with defence counsel and the court, to develop innovative approaches to trial proceedings, dispositions and sentences that can satisfy the needs of the accused, victims and society.75 Dickie’s view mirrors the official prosecutorial rationale for pre-plea discussions as facilitative of ‘just’ resolutions. Through this lens, the practice can provide a valuable layer of substantive, as well as procedural, flexibility to criminal proceedings, without supplanting or obstructing the court’s ultimate authority over these planes. Even this optimistic account of how negotiated pleas can streamline and focus courts’ operation recognizes the substantial implications that the practice has in regards to which justice agent holds effective normative control over criminal proceedings. Crown Counsel can decide who to prosecute, to add or drop charges, to proceed by indictment or summary conviction, to support or oppose bail applications, and to arrange for hearings before a particular judge, as well as make the usual submissions on sentence. They have the power, in sum, to deeply shape the kind of case that a sentencing judge ultimately considers. This is why the principled use and interpretation of prosecutorial policies is so crucial to how the criminal law’s concern for moral ordering is channelled through institutional structures. While the ‘appropriate’ use of plea bargaining is thus primarily dependent on the engagement and oversight of Crown Counsel, the maintenance of this purpose requires the support of other justice system participants. Commentators from the defence perspective have tended to take a somewhat more cynical, instrumentalist view of why negotiated pleas remain so important to the criminal justice system’s functioning. Ontario lawyer Joseph Di Luca agrees that efficiency and certainty are certainly basic motivators for defendants’ entering into resolution discussions, but suggests that this does not often happen in a free and flexible environment.76 In Di Luca’s view, a context of widespread pre-trial detention, overcharging, and the gap (whether actual or 75 Ibid. at 147. 76 Joseph Di Luca, “Expedient McJustice or Principled ADR? A Review of Plea Bargaining in Canada”, supra note 6. 69 perceived) between the punishments that defendants expect to receive after a trial versus a guilty plea, create coercive conditions that bury criminal law’s substantive values and procedural promises. In extreme cases, he suggests, these forces can even push those who are innocent to plead guilty simply to end their ordeals.77 Although these types of wrongful convictions are perhaps least illuminated of the justice system’s miscarriages, due to the fact that guilty plea-based outcomes are rarely appealed, the findings of the recent Inquiry into Pediatric Forensic Pathology in Ontario (the “Goudge Inquiry”)78, as well as the Ontario Court of Appeal decision in R v. Hanemaayer79 illustrate that such miscarriages do occur. In minor or ‘routine’ cases, this problem may be even more acute, given that, as Feeley observed, the costs of proceeding through the system can outstrip the official sanction of a negotiated or plea-based outcome. In a companion article to Di Luca’s, Greg Lafontaine and Vincenzo Rondinelli, like him defence lawyers in Toronto, perceive plea bargaining through an even more instrumentalist lens.80 To these authors, the justice system functions as no more than a marketplace based on principles of supply and demand, with guilty pleas being its main commodity. This trend, they argue, has solidified in the age of the Charter: [a]s a collateral effect of the liberalization or constitutionalization of Canadian criminal law and criminal procedure, there is now a very large number of criminal defendants who have been vested with the ability to trade the opportunity to litigate a constitutional infringement or a procedural misstep for the certainty of lenient treatment on a guilty plea.81 Even apart from cases where legitimate trial issues are ‘traded’ for attractive plea resolutions, Lafontaine and Rondinelli note that trials are financially out of reach for many defendants (a problem compounded by cuts to legal aid programs) and guilty 77 Ibid. at 37-38. 78 Inquiry into Pediatric Forensic Pathology in Ontario, the Honourable Stephen T. Goudge, Commissioner (Toronto: Ontario Ministry of Attorney General, 2008), online: Attorney General for Ontario <http://www.attorneygeneral.jus.gov.on.ca/inquiries/goudge/index.html>. In nine of the fourteen cases reviewed by the Inquiry in which incorrect pathologist conclusions resulted in wrongful convictions, the accused had pleaded guilty. 79 2008 ONCA 580 (Ont. C.A.). 80 Greg Lafontaine and Vincenzo Rondinelli, “Plea Bargaining and the Modern Criminal Defence Lawyer: Negotiating Guilt and the Economics of 21 st Century Criminal Justice” (2005) 50 Crim L.Q. 108. 81 Ibid. at 111-2. 70 pleas are the path of least resistance through a slow and circuitous system that is not, ultimately, about substantive ‘truth’ or moral reckoning at all.82 They criticize the rhetoric of accountability, particularly for the majority of charges dealt with by provincial courts: [t]he acknowledgment of criminal guilt is an unnecessary impediment to the effective resolution of a significant number of lower end criminal charges… a mechanism for resolution that did not require an acknowledgment of criminal guilt could result in the diversion of a meaningful number of cases out of the trial courts.83 They suggest that the adoption of no contest pleas in Canada may accomplish this goal, as well as creative solutions arrived at by counsel “willing to attempt to fashion novel resolutions [such as peace bonds, voluntary donations, community service, and/or letters of apology] that leave all concerned in a particular case with the sense that justice has been served”.84 In this respect, Lafontaine and Rondinelli support Dickie’s flexibility-based rationale for plea bargaining, although only to the extent that cumbersome and costly court processes can be circumvented to secure “excellent result[s]” for defendants.85 There remains a legitimate question as to whether the maintenance of the proportionality standard for sentencing can be reconciled with the implicit, but widely acknowledged ‘discount’ that plea bargaining depends upon. Observers and practitioners speaking from a range of perspectives, and citing a variety of rationales, seem in agreement that guilty pleas do generally result in mitigated punishment.86 Both Di Luca and Lafontaine and Rondinelli deal directly with how judges persist in citing remorse as the presumed reason behind a defendant’s guilty plea, and thus as a court’s rationale for imposing a less punitive sentence than the offence would otherwise have 82 Ibid. at 112. 83 Ibid. at 122. 84 Ibid. at 123. 85 Ibid. at 120. 86 The mitigation that a guilty plea accrues has been widely acknowledged in Canadian jurisprudence, including by the Supreme Court of Canada in R. v. Gardiner, supra note 43. As I discuss below, a number of reasons have been put forward for the maintenance of this discount, including the insignia of remorse that a guilty plea may arguably provide, the time and expense that a guilty plea saves the justice system, and the trouble or distress avoided for potential witnesses who do not have to testify. 71 merited. This, they allege, is no more than a hollow attempt to maintain the illusion that guilty pleas are necessarily acknowledgments of moral culpability. While some defendants may indeed experience and seek to express this quality, these defence lawyers argue that the entrenchment of plea bargaining, especially in a mercantile and/or coercive context, renders the connection between guilt and remorse suspect and unnecessary. The plea discount must be maintained, Lafontaine and Rondinelli exhort, but solely for the ‘realistic’, instrumental reason of a desire to conserve resources…[r]etaining the remorse mantra as a routine component of every sentencing submission after a guilty plea can only breed cynicism in those within the system and in the public.87 While for Lafontaine and Rondinelli, “[r]emorse no longer has, as a matter of substance, any real value at all”,88 Di Luca acknowledges that it remains an important mitigating factor, but one that cannot be discerned by way of the plea itself. To do so, he suggests, is distorting and unfair: [t]he person who pleads guilty may have no remorse whatsoever and yet may reap the benefit of the implicit show of remorse garnered by the guilty plea simpliciter. While a guilty plea may be used as an indicia of remorse, it is not necessarily proof of remorse in and of itself.89 Other observers, as will be discussed below, also underscore the impropriety of a ‘necessary and sufficient’ connection between the communication of a guilty plea and the presence or expression of remorse. To the extent that this (or, indeed, any) normative orientation on the part of a defendant matters at all to the sentencing process and sanction, it seems clear that it must be discerned by further or other means. Below, I look more closely at whether (as Dickie implies) the bargaining process is amenable as a vehicle for or facilitator of the articulation of lay participants’ moral perspectives. While this question has considerable relevance for victims as well as defendants, my focus, in the section below and in this thesis generally, is limited to accused persons’ engagement with moral ordering in plea court processes. 87 Supra note 80 at 126, 125. 88 Ibid. at 126. 89 Di Luca, supra note 6 at 62. 72 2.4.2 Offender Engagement in Plea Negotiations Practitioners’ contentions as to plea bargaining’s impact and propriety, while important to consider, have the potential to treat lay participants – here, accused persons – as voiceless or one-dimensional caricatures. While this is patently incorrect,90 it may be replicated in negotiated settlements to the extent that the full and nuanced views of these central participants are not heard, or are only superficially represented by the professionals who are the core and controlling interlocutors in the vast majority of resolution discussions.91 This section accordingly asks how offender perspectives are brought into the ‘black box’ of plea bargaining. The majority of defendants whose pleas are negotiated are directly represented at resolution discussions92 by a legal professional who is mandated to act in their best interests. As is evident in the defence counsel perspectives articulated above, this orientation is commonly applied in a mercantile fashion, with defendants presumed to adopt a rational bargaining position according to the attractiveness of plea offers and the anticipated risk of proceeding to trial. This presumption, while a seemingly reasonable heuristic for defence counsel to adopt in relation to most of their clients, must be adapted to the practical as well as normative considerations active in each particular context. Some of the practical factors have already been mentioned. Much work has been done, for example, on the effect that pre-trial detention has on a person’s likelihood of pleading guilty.93 Studies have noted that while the prison population itself has 90 See, for example, the discussion of offender perceptions of ‘fairness’, below in this section. 91 This empirical statement is drawn from my experience as a practitioner. Contrary to Dickie’s claim about resolution discussions being used as opportunities for flexible, inclusive negotiation, over three years of practice I have never been involved in a resolution meeting at which either my client or a victim was present. 92 Unrepresented accused persons may, of course, enter into resolution discussions with prosecutors on their own behalf, but such meetings are actively discouraged by most Crown Counsel. The B.C. Crown Counsel Policy Manual, for its part, urges prosecutors to “exercise caution” in this area, and encourage defendants to seek legal assistance. Supra note 68 at 3. 93 See, for example, G. Kellough and S. Wortley, “Remand for Plea: Bail decisions and plea bargaining as commensurate decisions” (2002) 42 Brit. J. Criminology 186. 73 remained relatively stable,94 the detention of persons before trial has risen over the past decade to include roughly half of all those in provincial institutions.95 In light of the federal government’s recent move to curtail enhanced sentencing credit for time spent in prison awaiting one’s day in court,96 Lafontaine and Rondinelli’s observation that “[b]ail is… the most valuable commodity that a defendant can have…”,97 is likely to apply with even greater force. Simply put, persons whose freedom the law has forfeit before finding them guilty are much less inclined to exercise the due process rights that are ostensibly theirs. The pressure to settle, often in exchange for release, thus threatens to indelibly colour plea negotiations. Defendants who are (understandably) motivated to secure their release may agree to plead guilty irrespective of their normative orientation towards the actual offence or negotiated outcome, and professional representatives may, also understandably, end up advising and encouraging cost-benefit decision-making in spite of policies and principles that justify plea bargaining as facilitating substantively ‘just’ outcomes. The instrumentalism of this process also imprints upon [accused persons] a conception of criminal prosecution as a system which is subject to manipulation by those experienced at the game to the exclusion of those who are not.98 Finally, there is the potentially detrimental influence of defendants’ representatives themselves. As Oonagh Fitzgerald alleges in her critique of plea-based criminal justice, “[g]iven the fiduciary relationship between defence counsel and client, the pressures exerted by counsel may be the greatest threat to an accused’s freedom of choice in pleading and the most important influence in prompting negotiated pleas of guilty”.99 Although in chronic danger of being overcome by the mercantile and pressurized context that seems to characterize the practice of plea bargaining in Western criminal 94 See Statistics Canada, table 251-0005 “Adult correctional services, average counts of offenders in provincial, territorial, and federal programs (British Columbia)” (Ottawa: Statistics Canada, 2009), online: Statistics Canada <http://www40.statcan.gc.ca/l01/cst01/legal31l-eng.htm>. 95 See Cheryl Webster, Anthony Doob, and Nicole Myers, “The Parable of Ms. Baker: Understanding Pre- Trial Detention in Canada” (2009) 21 Current Issues Crim. Just. 83 at 84. 96 See the recently enacted Truth in Sentencing Act, S.C. 2009 c.29. 97 Supra note 80 at 113. 98 Brian A. Grossman, “Conflict and Compromise in the Criminal Courts” supra note 13 at 301. 99 Fitzgerald, supra note 40 at 146. 74 justice systems, there is evidence that participants’ normative expectations (of, for example, justice and fairness) are not entirely extinguished at this stage of criminal proceedings. Defendants’ expression of these expectations, however, may perversely result in less ‘just’ outcomes in some instances. As a recent US-Israeli article suggests, criminal defendants make assessments of the substantive and comparative fairness of prosecutors’ sentencing positions, and sometimes reject offers that offend these values even if they are ‘rationally’ attractive.100 Tor, Gazal-Ayal, and Garcia’s argument is predicated on an analysis of cases in which a defendant’s plea decision could be seen to be founded on normative rather than instrumentalist grounds.101 It also includes an empirical study, which was conducted with the use of a role-playing script.102 This study analyzed ‘fairness’ assessments through the lens of participant-defendants’ self- adjudged awareness of guilt and probability of an acquittal at trial. In the case of ‘truly innocent’ participant-defendants, the authors noted a marked preference to proceed to trial even if the likelihood of acquittal is objectively low,103 while those who were uncertain of their guilt tended to exhibit an “egocentric bias” that inflated their self- assessed prospects of acquittal and lead to a similar, but less pronounced, aversion to ‘unfair’ plea bargains.104 Although not conducted in a ‘real world’ environment, this study suggests that even defendant who know they are guilty exhibit some agency in rejecting plea bargains that they view as unfair.105 But the authors conclude, rather glumly, that innocent defendants… will reject discounted offers… [and] will bear higher average penalties than guilty defendants facing comparable conviction 100 Avishalom Tor, Oren Gazal-Ayal, and Stephen M. Garcia, “Fairness and the Willingness to Accept Plea Bargain Offers”, supra note 57. 101 Ibid. at 99. The authors mention, for example, an American case where the defendant rejected an ‘unfair’ plea bargain offer of five years in jail, even though the almost certain alternative was imprisonment for life. 102 Ibid. at 103. The participants in this study, however, were drawn from a pool of college and university students, and thus do not represent the ‘average’ real life criminal defendant in terms of income, education, and social marginalization. 103 Ibid. at 102. The authors note that only 6% of a database of 316 wrongful conviction cases resulted from a guilty plea, although, as noted above in the text and accompanying footnote 83, such miscarriages are perhaps least likely to be addressed. 104 Ibid. at 108-109. 105 Ibid. at 113. 75 probabilities, who accept the discounted plea offers at significantly higher rates.106 This is, of course, the result of a combined plea discount and trial ‘penalty’, although the latter factor does not formally have any place in Canadian sentencing law.107 Whether they are innocent, guilty, or uncertain, defendants’ abiding sense of fairness in criminal proceedings does not seem to significantly counter the predominantly instrumental pressures and incentives embedded in the pre-plea environment. Indeed, while according to the presumably well-intentioned principles embodied in Crown policy manuals, resolution discussions are meant to be used to support and enhance the substantive as well as procedural functioning of the justice system, there is considerably more empirical and anecdotal evidence that the practice distorts or misrepresents the substantive basis upon which pleas are made and convictions founded. Negotiated outcomes would thus tend to undermine opportunities for meaningful moral discernment and decision-making at the formal sentencing stage, not bolster it. This thesis maintains that the law’s concern for moral ordering, although demonstrably weakened by plea bargaining’s privileging of instrumental rationality and behind-the- scenes normative evaluation, does remain important, in practice as well as theory. Not every guilty plea is comprehensively bargained, and courts remain, officially at least, the ultimate arbiters and dispensers of sentences. Mindful of the effect that plea bargaining has on the manufacture of guilty pleas, the following section will accordingly turn to the sentencing hearing itself, to examine how courts use the tools and influence their authority grants them to (re)open possibilities at this stage for engaging offenders with the moral dimension(s) of a given case. 2.5 The Audible Promises of Sentencing Hearings However problematic or impenetrable the stage of pre-plea negotiations may be, every criminal case is formally resolved in open court. It is here where all participants gather 106 Ibid. at 122. 107 Lafontaine and Rondinelli contend, however, that an “entertainment tax” of proceeding to trial is imposed in cases where a court sees a defendant has having wasted its time by not pleading guilty. Supra note 80 at 116. 76 to hear and be heard, to make submissions and present evidence, to argue for or against a particular outcome or to try to convince a judge why a negotiated settlement should be approved. In contrast to most resolution discussions, accused persons are present and expected to be directly involved, victims are, formally at least, invited to articulate their loss, and interested observers are encouraged to attend to bolster the process’ legitimacy and social oversight. If there is any occasion for substantive, contextual moral engagement in criminal law, sentencing hearings are uniquely well suited for the job. They are also able to incorporate a significant amount of innovation and flexibility to accommodate the diversity of contexts and circumstances that call upon the criminal justice system for a response. This encompasses circle sentencing and other tailored proceedings sometimes employed in Aboriginal communities,108 delayed dispositions to allow defendants to attend treatment programs before being sentenced,109 and provisions that enable courts to effectively extend their oversight over the course of an offender’s community-based sentence, to monitor compliance and make adjustments as deemed necessary.110 Sentencing hearings can even assume features of a contested 108 These ‘alternative’ approaches, many of which attempt to draw upon traditional First Nations’ peacemaking practices, draw statutory support from s. 718.2(e) and the seminal Supreme Court of Canada case of R. v. Gladue,  1 S.C.R. 688, which counsel courts to pay “particular attention” to the circumstances of Aboriginal offenders during sentencing. There is a significant body of scholarship on circle sentencing practices in Canada, much of it supportive of this approach’s attempt to reconcile offender, victim, and community needs with the justice system’s overarching structure and principles: see generally Ross Gordon Green, Justice in Aboriginal Communities. Sentencing Alternatives (Saskatoon: Purich Publishing, 1998) which also considers other initiatives such as elder panels and community advisory committees. Critical analyses of circle sentencing have also been made. For a feminist perspective that questions the practice’s ability to adequately safeguard victims of ‘intimate’ violence, see Emma Cunliffe and Angela Cameron, “Writing the Circle: Judicially Convened Sentencing Circles and the Textual Organization of Criminal Justice” (2007) 19 Can. J. Women & L. 1. For a Sto:lo scholar’s critique of how such innovations cannot effectively address the colonialism and systemic injustices embedded in Western conceptions of justice, see Wenona Victor, Indigenous Justice: Clearing Space and Place for Indigenous Epistemologies (West Vancouver: National Centre for First Nations Governance, 2007) at 16. See generally also James (Sakej) Youngblood Henderson, “Postcolonial Indigenous Legal Consciousness” (2002) 1 Indigenous L.J. 1. 109 As authorized by the Criminal Code, supra note 59 at s. 720 (2). 110 Ibid. s. 732.1 (2)(b) which requires offenders serving probation orders to “appear before the court when required to do so by the court”. 77 trial, for example when the Crown seeks to prove aggravating factor(s) that are contested by the defence.111 Besides the communication of the plea itself, the Criminal Code provides for a number of tools that courts may use to amplify lay persons’ normative perspectives regarding a given case. These tools are, arguably, intended to enrich the sentencing process and assist judges in determining an appropriate sentence. Focussing solely on the normative engagement of offenders, I consider three of these mechanisms below. 2.5.1 Pre-Sentence Reports Section 721 of the Code provides for the preparation of ‘pre-sentence reports’ (“PSRs”) which are commonly used to bring the offender’s background, circumstances, and prospects before the court, as well as allow a probation officer to make general recommendations as to the viability of available sentencing options. Significantly, s.721(3) mandates that PSRs should address an offender’s “age, maturity, character, behaviour, attitude and willingness to make amends”, all of which may play in to a court’s assessment of moral culpability. The ability of probation officers to effectively gauge and articulate the more subjective criteria enumerated in the legislation, however, is uncertain and dependant on a host of factors including an offender’s willingness to speak about this sensitive subject matter, a probation officer’s skill and interest in drawing it out, and the trust that may exist or be developed between these interlocutors. As with so much of the criminal adjudication process, the purpose and scope given to these mechanisms is, in practice, far from uniform or straightforward, with some professional actors exhibiting much more tact and interest in employing PSRs as a vehicle for moral engagement than others. Their use in Canada has not been extensively studied, but the available scholarship suggests that they are employed both as “social histories” and as more technical “risk/needs assessments”, with a trend, in 111 The Criminal Code, supra note 59 at s. 724 (3) provides for the establishment of facts considered relevant to the determination of sentence. The standard of proof varies between a balance of probabilities for mitigating or neutral evidence, to proof beyond a reasonable doubt for aggravating factors. This difference, now codified, results from the Supreme Court of Canada’s ruling in R. v. Gardiner, supra note 43. 78 many provinces, to emphasize the latter.112 This trend is supported by 1996 amendments to the Criminal Code that permit judges to order specifically focused PSRs, targeted to those issues deemed by the court to be of particular relevance.113 This includes the identification of offenders’ “criminogenic needs” and the availability of programmatic interventions, which would arguably allow judges to impose more appropriate sentences, both custodial and probationary.114 There is much less evidence, however, of PSRs being used specifically to open up room for offenders to make representations concerning their perspectives on the offence in question. In general, it seems, PSRs are employed in a more instrumental manner, as vehicles for a probation officer’s rendering and interpretation of relevant ‘facts’ for a sentencing court’s (normative) consideration. Following the Supreme Court of Canada’s decision in R. v. Gladue,115 some Canadian jurisdictions have provided for an enhanced version of PSRs to be produced to aid courts in the sentencing of Aboriginal offenders. Such “Gladue Reports” are designed to offer judges an enriched understanding of the background and systemic factors that have contributed to a particular Aboriginal person appearing before them, and to assist in developing alternatives to incarceration. They are, therefore, perhaps less inclined than other PSRs to function as “actuarial risk” assessments, and more well-suited to “culturally situate offenders”. 116 In theory, at least, a comprehensive Gladue report affords a court’s lay and professional participants a greater ability to identify and address gaps in their normative understandings of the wrong committed and its appropriate response. As some critics have claimed, however, the justice system’s overall tendency towards employing PSRs as actuarial risk/needs assessments has similarly (dis)coloured the ability of Gladue reports to fulfil their cultural and normative 112 David P. Cole and Glen Angus, “Using Pre-Sentence Reports to Evaluate and Respond to Risk” (2002- 2003) 47 Crim. L.Q. 302 at 308. 113 s. 721(4). 114 Supra note 112 at 308-309. 115 Supra note 108. 116 Kelly Hannah-Moffat and Paula Maurutto, “Recontextualizing pre-sentence reports: Risk and race” (2010) 12 Punishment & Society 262 at 265-6. 79 gap-narrowing functions.117 In this thesis’ empirical enquiries, I pay some attention to how the Gladue decision is being employed to cultivate the perspectives and participation of Aboriginal offenders. 2.5.2 Victim Impact Statements Section 722 of the Criminal Code provides for the preparation and presentation of ‘victim impact statements’ (“VISs”) which are designed to give victims the chance to directly convey how a given offence has affected them. There is an explicit expectation that these statements will be used “[f]or the purpose of determining the sentence to be imposed on an offender…”,118 but the degree to which this actually happens is, like PSRs, uncertain. Anglo-Canadian legal scholar J.V. Roberts, author or co-author of the most pertinent examinations of Canada’s experience with VISs, has advocated perhaps the strongest argument in favour of this mechanism’s potential as a force for moral ordering, as well as some the most discouraging reports of its practice as such. Echoing the theorists R.A. Duff and Anthony von Hirsch in privileging their retributive, communicative focus, Roberts argues that VISs are meant to play an important role in allowing victims to articulate the impact of the crime not only to the court, but directly to offenders as well: Confronting the offender with the consequences of his or her actions and accompanying the message by the censure of the court (the sentence) is essential if the sentencing process is to achieve its codified goals. ...Hearing from the victim involves a completely different communicative dynamic from hearing about the impact of the crime through the sentencing submissions of the prosecutor… it is a message of sensitization; an appeal from one individual to another…119 Against this inspiring ideal, however, Roberts posits that “the criminal justice bureaucracy has assimilated the VIS in a way that has changed its role, undermined its utility to judges and contributed to the disillusionment of victims”.120 He has found that 117 Ibid. at 280. 118 Criminal Code, supra note 59 at s. 722(1). 119 J.V. Roberts, “Victim Impact Statements and Sentencing” (2002-2003) 47 Crim. L.Q. 365 at 377. Emphasis in original. 120 Ibid. at 393. 80 while judges tend to agree that the information contained in VISs is otherwise unavailable,121 they have been reluctant to let it influence their sentencing practices. In the infrequent instances where VISs do affect outcomes, a certain asymmetry is evident. While judges will rarely increase a sentence just because a victim desires it (although aggravating factors that it discloses may indeed have this effect) they are more likely to reduce a sentence if the otherwise appropriate punishment would result in undue hardship for a victim (such may happen when the victim is a member of the offender’s family).122 This is not surprising or disturbing in itself, Roberts notes – sentences that further harm victims in the interests of strict retributivism may not promote the fundamental principle of public respect for the law, and there is no commensurate “theoretical justification” to increase punishments to satisfy victims who demand disproportionately harsh dispositions.123 What is of significantly more concern to the justice system’s aspiration to discern and deliver punishments that proportionately account for the gravity of the offence (which arguably requires an appreciation of the impact on individual victims) is the evidence that VISs are rarely used, and even then not for their intended purpose of communicating a victim’s narrative of loss. In the first years of VISs incorporation in Canadian law, it was found that few were being submitted to court. This, as Roberts relates, was not so much due to victims’ refusal to participate as a failure of the Crown to contact them.124 This problem has, certain policy documents suggest, been ameliorated somewhat in light of a greater legislative and political emphasis on victims’ rights,125 but VISs are still completed in a small number of 121 Ibid. at 390. See also the 2006 survey conducted by Roberts and Edgar, supra note 10 at vii, where judges tended to agree that VISs did provide information that was not found in other sources, although not in a majority of cases. 122 Ibid. at 385. 123 Ibid. 124 Ibid. at 379. Victim Impact Statements became formally incorporated into the Criminal Code in 1988. 125 The B.C. Prosecution Service Policy Manual, for example, in the directive “Victims of Crime” stipulates that “Crown Counsel must provide victims with a reasonable opportunity to have the impact of the offence brought to the attention of the court”. Crown Counsel Policy Manual, “VIC-1: Victims of Crime” (Victoria: Queen’s Printer, 2003), online: Ministry of Attorney General <http://www.ag.gov.B.C..ca/prosecution-service/policy-man/pdf/VIC1-VictimsOfCrime-20May2003.pdf> at 1. 81 potentially applicable cases.126 Roberts states that “only a minority of crime victims elect to submit a statement of impact, and far fewer are actually present in court at the sentencing hearing”.127 He further notes that in practice some victims have been frustrated in their desire to orally deliver their statement at the sentencing hearing itself.128 Roberts has concluded that the prevailing scholarly and judicial focus on VISs as mechanisms that are designed to affect sentencing outcomes (which as mentioned above has proven to be rather negligible) overshadows their ‘true’ purpose as vehicles for the communication of victims’ narratives.129 The indication is that despite legislative and rhetorical acceptance of the value and importance of this purpose, VISs are not, in practice, being used to fulfill this function. If, then, it is desirable for offenders (and, indeed, judges) to be brought towards an understanding of the gravity of an offence vis- à-vis its impact on actual persons, it seems that victim impact statements are not a common means by which this understanding is fostered. 2.5.3 Offender Allocution Section 726 of the Criminal Code provides yet another statutory mechanism for increasing the ability for courts and lay participants to directly communicate. This is the provision requiring judges to ask, before pronouncing sentence, whether offenders wish to address the court themselves. This is commonly known as the defendant’s right of allocution, and has been a feature of Western criminal justice systems since before the involvement of defence counsel, or indeed the right to silence as currently 126 Roberts and Edgar, supra note 10 at 1. This 2006 survey of judges in three jurisdictions found that VISs were completed in just 8% of cases in B.C., 11% in Manitoba, and 13% in Alberta, although judges also reported that their use was increasing. It is not clear whether these percentages represent all cases or just those with an identifiable victim. 127 Supra note 119 at 379. This is compounded by the disturbing finding that 70% of judges in B.C. reported proceeding to sentencing without knowing if a VIS had been requested or submitted: Supra note 10, at 5-6. 128 Ibid. at 369. This is in apparent contradiction to s. 722 (2.1) of the Criminal Code, which permits victims to read their statements in court. Roberts and Edgar’s 2006 survey, however, supra note 10 at 7-9, found that victims rarely request to deliver their statements orally, and when they do judges report granting these requests. 129 J.V. Roberts and Edna Erez, “Communication in Sentencing: Exploring the Expressive Function of Victim Impact Statements” (2004) 10 Int. Rev. Victimology 223. 82 understood.130 In guilty plea dispositions, allocution is the only opportunity that defendants have to make representations to the court. These representations, of course, are not completely unrestricted. As a consequence of pleading guilty to a given offence, defendants are forestalled (at least in Canada) from using this opportunity to proclaim or even insinuate their legal or factual innocence. Allocution statements are, therefore, principally amenable to expressions of remorse, accountability, and other normative statements concerning the offence or the offender’s perspective on the justice of the proceedings or impending outcome. Despite its longstanding place as a feature of all criminal sentencing hearings, there is a paucity of scholarship on Canada’s experience with defence allocutions. There is a more substantive body of literature in the United States that has considered this feature of criminal proceedings in terms of both theory and practice.131 The most interesting analysis, in light of this thesis’ focus on normative communication, interprets allocution as an opportunity for defendants not only to speak in aid of mitigated punishments (its traditional and most accepted function) but also impart to the sentencing process the “humanization” that only lay participants are able to provide.132 According to Kimberly Thomas, defendants (especially minorities and the poor) with their unique stories, perspectives, and interpretations, are effectively silenced by court processes focused on legal intricacies and instrumental efficiency. In this stilted context, “[a]llocution matters because it is one place in the criminal process where every convicted defendant has the chance to speak”.133 Further, while claims in aid of mitigation can be effectively conveyed by competent counsel, Thomas suggests that “the real experiences of defendants, who sometimes want to convey alternative stories of mercy, innocence, and defiance”,134 are not amenable to third party representation. She warns that if the acceptance of allocution as an opportunity for humanization is not fostered by the 130 See John Langebein, The Origins of the Adversary Criminal Trial, supra note 61 at 62-3. 131 This is, in part, because defendant allocutions have been more closely defined and scrutinized in American jurisprudence, particularly capital cases. 132 Kimberly A. Thomas, “Beyond Mitigation: Towards a Theory of Allocution” (2006) 75 Ford. L.R. 2641. 133 Ibid. at 2643. 134 Ibid. at 2645. 83 criminal justice system, the practice risks losing meaningful relevance,135 further entrenching ‘silent’ proceedings with consequent losses to defendants,136 courts,137 victims,138 and the public.139 Thomas acknowledges that a broad, humanization-based understanding of allocution could lead to some disruptions in the system’s efficiency and the reinforcement of some stereotypes about poor defendants, as well as its potential manipulation by others with the means and ability to do so. She concludes, however, that these dangers (which engaged courts ought to be equipped to curtail) are outstripped by the benefits of an approach that would “give life to an historic practice”.140 Thomas presents a persuasive case for the revitalization of allocution in sentencing courts. The capacity of the practice to accomplish the potential she outlines, however, depends upon facilitation through supportive court processes and professionals. Despite codified opportunities, contemporary Western justice systems have not, in practice, provided an effective place for lay participants to engage with ‘their’ cases.141 In Canada, the situation is perhaps even direr than in the US, given the lack of substantive debate on the ‘audibility’ of offenders at sentencing. Perhaps the voices 135 Ibid. at 2658-9. This is particularly so in an environment of increasing mandatory and mandatory minimum sentences, where allocution’s traditional mitigation rationale has less purchase. 136 Ibid. at 2674-5. Thomas sees four advantages accruing to defendants who are empowered to use an allocution practice based in humanization: they are more likely to be active participants in their own cases, to be seen as participants in public life, to “create and express” themselves, and to more explicitly choose when to remain silent instead of seeing it as the default option. 137 Ibid. at 2676-9. For Thomas, without a meaningful opportunity for humanizing allocution, courts are less likely to hear about significant differences between defendants that may not be relevant to other parts of the proceedings, less likely to reflect just and effective moral proportionality in their sentences, and eroding the legitimacy of the process and outcome, especially in an environment of trial-less, ‘guilty plea’ justice. 138 Ibid. at 2671-3. Thomas asserts that arguments for greater victim participation in sentencing hearings are consistent with, and indeed employ similar rationales as, those that support defence allocution. The basic aim underpinning both is providing meaningful and effective opportunities for communication. 139 Ibid. at 2679-80. She suggests allocution can enrich the public’s appreciation for the nuances of individual offences and offenders, and allows it to hear any normative representation that defendants might wish to make, from apology to defiance. This is important, Thomas suggests, to the ongoing discourse on the functioning and fallibilities of the justice system. 140 Ibid. at 2685. 141 Indeed, there is evidence that the very opposite is happening. See, in the US context, Alexandra Natapoff, “Speechless: The Silencing of Criminal Defendants” (2005) 80 N.Y.U. L.R. 1449, which argues that the systematic silencing of defendants through ‘protective’ legal and procedural mechanisms constitutes a “massive democratic and human failure”. 84 that are most responsible for this silence, however, are legal representatives themselves. The final section in this chapter looks directly at how these actors, in particular defence counsel and judges, are implicated in the apparent gap between how sentencing processes are designed to foster normative communication, and the degree to which they actually do so. It should be recognized here that the “considerable and important differences” between official rhetoric and “operational realities” make it difficult to know and interpret a process that is often not what it purports to be.142 2.6 The Ordering Influence of Professionals There was one thing though that vaguely bothered me. In spite of all my worries, I’d occasionally feel tempted to intervene and my lawyer would always tell me, ‘keep quiet, it’s better for you.’ In a way, they seemed to be conducting the case independently of me. 143 In addition to mandating opportunities for lay participant involvement, the Criminal Code also includes specific provision for submissions to be made by the prosecution and defence.144 Indeed, as is apparent to any observer of an orthodox sentencing hearing, the most audible, and often only, voices heard are those of professional representatives. So-called ‘submissions on sentence’ are, in almost every case, crucial to how a given offence will be comprehended by the judge who receives them. It is here where the prosecutor lays out the relevant factual basis for a conviction, including representations on any aggravating or mitigating circumstance that these facts disclose. This is also where the Crown, as society’s representative, may bring in a victim’s or community’s perspectives, and forward the state’s recommendations as to the appropriate sentence. Defence submissions mirror those of the prosecution. This is where defence lawyers can contextualize, or, in some cases, contest the Crown’s summary of facts, offer claims of mitigation or expound upon those already in evidence, and advance their own recommendations as to the justice of a given outcome. As has been intimated 142 Grossman, supra note 13 at 301. I hope to go some ways towards remedying this handicap through my own empirical investigations, which are presented in Chapters Three and Four. 143 Albert Camus, The Outsider (London: Penguin Classics, 2000) at 95. 144 Criminal Code, supra note 59 at s. 723. 85 throughout this chapter, the choices that professional actors make indelibly affect the substantive and procedural character of how guilty pleas are produced, performed, and, eventually, interpreted in court. I have already mentioned the Crown’s role in resolution discussions, above at §2.4.1. The longstanding articulation of prosecutors as disinterested “ministers of justice”145 can be taken to apply, in theory at least, to their role throughout the sentencing process. The normative influence embedded in Crown Counsel’s discretion, as I have mentioned, is considerable. I am more interested in this section, however, in how defence counsel’s less regulated, more intimate position vis-à-vis their clients affects how the criminal law concern for moral ordering operates upon and through defendants in plea and sentencing proceedings. The prosecution can make normative claims about the wrongness of the crime or the badness of the wrongdoer, and can facilitate victim involvement. The judge, as is further explored below, comes to normative conclusions about the offence and offender, whether they are subsumed in simple affirmations of the resolution that has already been arrived at by the parties, or asserted in the questions, lectures, and ultimate dispositions that she is authorised to pronounce. Defendants, as we have seen, are also, theoretically and in law, capable of using the sentencing hearing as an opportunity to make their own normative statements about their conduct, character, and the punishment that impends upon them. All of these moral valuations are focused on the individual who has accepted personal legal responsibility, via their plea, for criminal conduct. Defence lawyers, as is explored below, stand as crucial intermediaries of these messages, and are significantly responsible for their audibility and reception in open court. 2.6.1 Defence Lawyers There is an ongoing debate about how defence counsel ought to respond to the moral implications of their work. The parameters of this debate are as wide as the legal profession itself, touching on lawyers’ ethical and moral responsibilities towards clients, 145 See Rand J.’s comments in Boucher v. The Queen,  S.C.R. 16 at pp 23-24. 86 courts, society, and themselves. The core contention concerns whether lawyers ought to sustain a ‘zealous’, adversarial position as far as the scope of their representation and the law allow,146 or if this position needs to be tempered to account for the broader interests and ambitions of ‘justice’.147 Although I can only deal with a small part of this debate here, it has important implications for law’s normative aspirations. In particular, I ask how legal professionals’ self-conceptions of their responsibilities for and relationship to clients at the plea and sentencing stage can make a difference between hearings that are relevant and resonant to defendants as moral actors, and those that are deaf or inattentive to their standing as such. Two contrasting perspectives can be generalized here. The ‘standard’ conception endorses defence counsel maintain managerial control over their clients to the conclusion of proceedings according to a strictly instrumental understanding of these clients’ best interests. This type of advocacy has already been observed as explaining the decisions that lawyers tend make in both the ‘plea bargain’ and ‘due process’ models of criminal proceedings, as well as Feeley’s alternative ‘pre-trial process’ critique.148 As we have seen, this viewpoint has recourse to substantial arguments to sustain its dominance, including the manifest power imbalance between the prosecuting state and individual defendants, and the basic interest in harm avoidance that most persons privilege when accused of wrongdoing. It is therefore eminently reasonable and appropriate, according to its supporters, for defence counsel to act as a shield, protecting their clients’ instrumental interests against a state that is intent on doing them harm. This position does, however, tend to elide the interesting question of cause and effect – whether the way lawyers manage their clients is a response to the risks an overbearing institution presents, or whether this advocacy approach itself 146 See Tim Dare, The Counsel of Rogues?: A Defence of the Standard Conception of the Lawyer’s Role (Burlington: Ashgate Publishing, 2009). 147 See William H. Simon, The Practice of Justice: A theory of lawyers’ ethics (Cambridge: Harvard University Press, 1998). 148 The two models can perhaps best be understood as threading throughout a ‘typical’ legal process, one or the other asserting itself according to the circumstances and intentions of particular courts and participants. 87 complicates a court’s ability to ‘justly’ interpret the offences and offenders they must judge. The contrasting viewpoint holds that perhaps lawyers can, and should, take a substantially different approach to advocacy, by seeking to reconcile their clients’ best interests with the law’s normative aspirations. This requires, of course, a re- conceptualization of both – a re-visioning of values and intentions from staunchly opposed to mutually supportive. Proponents have found an intelligible language to advance these ideas in the discourse of Therapeutic Jurisprudence, which is an emerging body of literature that enquires into the “law’s impact on emotional life and psychological well-being… as a social force that produces behaviours and consequences”.149 As a guide for practitioners, judges, and institutions, Therapeutic Jurisprudence is largely interested in enhancing rehabilitative outcomes. Its claims, however, also encompass normative engagement, privileging practices that are most likely to foster the “cognitive restructuring” that defendants arguably need to learn from their experience in the justice system and rebuild law-abiding lives.150 Although couched in a context of respect for clients’ freedom to choose adversarial or disengaged orientations to their cases, Therapeutic Jurisprudence suggests that many of those who are subject to the law’s judgment do want, and would substantially benefit from, meaningful opportunities to speak and be heard as moral agents in the criminal process, particularly when it comes to accepting responsibility for their conduct.151 Lawyers can assist in this regard by acting, not (merely) as legal managers, but as normative “change agents”,152 encouraging clients to discuss the reasons underlying their offending and how to prevent it in future, cultivating their participation in formulating appropriate sentencing recommendations, facilitating in-court apologies,153 and in general 149 David Wexler, ed., Rehabilitating Lawyers: Principles of therapeutic jurisprudence for criminal law practice (Raleigh: Carolina Academic Press, 2008) at 3. 150 Ibid. at 8. 151 See, for example, Philip Gould and Patricia Murrell, “Therapeutic Jurisprudence and Cognitive Complexity: An Overview” (2002) 29 Fordham Urb. L.J. 2117, as well as, generally, the other TJ-based works referred to in this section. 152 Supra note 149 at 24. 153 Beth Bromberg, “A Defence Lawyer’s Perspective on the Use of Apology”, in supra note 149 at 225. 88 supporting people’s ability to “tell their stor[ies] to an attentive court…”.154 While this approach cannot guarantee the instrumentally ‘best’ outcome for every individual, at least in terms of the length or nature of their punishment, it does promise to re- invigorate the justice process’ normative aspirations. It seeks to do so in terms of both the unofficial ordering that is conducted in lawyers’ chambers and courthouse hallways, and the explicit mechanisms embodied in plea and sentencing hearings. There are indications that some of Therapeutic Jurisprudence’s prescriptions have been put into practice, with positive results, by individual courts and professionals.155 As a theory, Therapeutic Jurisprudence represents an exciting invitation for the criminal justice system to evolve beyond the standard ‘due process’ and ‘plea bargain’ models of practice, which are both characterized by the managerial control of lawyers and the minimal participation of lay participants. But it has, predictably, incurred criticism for promoting an overly paternal, interventionist ethic among lawyers, and eroding the protections that vulnerable clients require from an abidingly harsh legal and political superstructure far more interested in exploiting the occasion to punish than fostering the opportunity for therapeutic engagement.156 This fundamental wariness of the law’s ability, and right, to mix its coercive authority with inducements to ‘free’ moral dialogue is likely to always separate those who uphold an orthodox understanding of their professional responsibilities towards clients’ best interests, and those who advance a more ambitious ‘therapeutic’ agenda. Ultimately, there is little argument that defence counsel must fearlessly advocate on behalf of their clients’ legal interests throughout their representation. This is most clearly evident in a contested trial, and as we have seen, also applies, though in a much murkier context, in plea negotiations that attempt to secure viable ‘deals’. To the extent that a comprehensive agreement is reached with the prosecutor, a defence 154 Michael King, “TJ, Criminal Law, and the Guilty Plea”, in ibid. at 231. 155 See, for example, the articles authored by practitioners in Wexler, ibid. 156 See Mae Quinn, “An RSVP to Professor Wexler’s Warm Therapeutic Jurisprudence Invitation to the Criminal Defense Bar: Unable to Join You, Already (Somewhat Similarly) Engaged” (2007) 48 Boston College L.R. 539. 89 lawyer’s duties at the sentencing hearing are usually confined to a straightforward ‘sales pitch’, in which a client’s involvement will not likely be required or encouraged beyond rote acknowledgments. As Feeley’s account of the implicit normative ordering that occurs throughout the legal process acknowledges, in cases such as these there is little left for either lay participants or judges to do, and the sentencing hearing itself becomes no more than a hollow pro forma ritual with a foreordained conclusion. Not infrequently, however, and even within those cases that have apparently been decided beforehand, it becomes a matter of a client’s ‘best interests’ that they be viewed by the presiding judge in the most sympathetic possible light. Advocates attempt to influence this normative assessment in several ways. Criteria of mitigation include a defendant’s age (very old or very young is best) lack of, dated, or unrelated prior criminal record, physical or psychological health concerns, immaturity or diminished insight, background, upbringing, or Aboriginal or minority heritage, prior victimization, evidence of good character, community support, efforts to reform, and, most subjectively, remorse.157 As any good counsel understands, “in the final analysis, it is the presence or absence of moral blameworthiness that drives the sentencing process…”.158 But, paradoxically, it can be this very concern that contributes to the profound silencing of defendants in the hearings designed to gauge and give voice to this assessment. Lawyers’ solicitousness of their clients’ instrumental interests may tend, purposively or not, to impoverish normative exchanges. The expression of remorse, for example, while generally viewed as a ‘good’ quality, requires defence lawyers to either give up a certain degree of control over what their clients may say, carefully stage-manage its delivery, or take over its articulation entirely. As will be more intimately explored in Chapter Three, a lawyer’s self-conception of his or her role will influence how they resolve this question. As is taken up below, counsel’s predictive interpretations of potential judicial responses to their clients’ stories is also an important factor in opening or restricting flows of normative expression. 157 See s. 718.2(e) of the Criminal Code, and Gilles Renaud, Speaking to Sentence: A Practical Guide, supra note 6 at 43-49. 158 Ibid. at 47. 90 2.6.2 Judges According to Feeley’s analysis, a judge’s role in the discernment and communication of a deserved sentence, although officially authoritative and imbued with discretion, can in practice be minimal, a mere imprimatur on a pre-determined outcome. Yet, as the final determiners of what ought to be done in each particular case, judges cannot be dismissed as careless of or ignorant to the frailties and inadequacies of imparting remorse into the spare admission of legal guilt. Nor, as former lawyers,159 are most inattentive to the distortions wrought by pre-plea pressures and negotiations. For any (including judges themselves) who privilege the law’s concern for substantive, justly informed decision-making at sentencing, the characterization of judges as mere figureheads must therefore be gravely considered, and stridently resisted. Fitzgerald, for example, strongly counsels against judges who passively accept the bona fides of a guilty plea without inquiring into its formation: Because the guilty plea process is so susceptible to pressures that detract from the acceptability of the guilty plea, the conscientious performance of the trial judge’s supervisory role is crucial. Unless the trial judge makes inquiry into the circumstances of the plea and any plea bargain, there is no reason to assume that the guilty plea is voluntary, intelligent, and accurate and therefore no basis upon which to accept it as a legitimate means of resolving a criminal matter.160 Notwithstanding the passivity that Fitzgerald rightly critiques, however, there are indications that judges are indeed interested and motivated in taking a much more active role in ascertaining and shaping the normative features of the justice process. As we have observed, these normative forces withstand and co-exist with the instrumental pressures and function of plea and sentencing processes. 159 Although not necessarily criminal lawyers. 160 Fitzgerald, supra note 40 at 168-169. The kind of inquiry that Fitzgerald endorses is also now mandated by s. 606(1.1) of the Criminal Code, which states that [a] court may accept a plea of guilty only if it is satisfied that the accused (a) is making the plea voluntarily; and (b) understands (i) that the plea is an admission of the essential elements of the offence, (ii) the nature and consequences of the plea, and (iii) that the court is not bound by any agreement made between the accused and the prosecutor. The failure of a court to make such inquiries, however, does not, per. 606(1.2) affect the plea’s validity. 91 Gauging an offender’s moral orientation towards their offence is a key aspect of this role. A judge’s perception of remorse, as Richard Weisman has argued, including its presence or absence but also its authenticity and depth, plays strongly into the “moral dichotomization of those who have been found culpable.”161 This, in turn, makes a difference to their treatment: [w]rongdoers who are regarded as remorseful are viewed as more worthy of mercy, safer for re-inclusion into the community, and more similar to their law- abiding neighbours than those who have not shown or whose expressions of remorse are judged as not credible.162 Weisman recognizes the distorting effects that the legal process can have on this discernment. Convincing moral performances matter, of course, but they are made “in a context of suspicion… affected by their proximity to law’s own coerciveness”.163 More than an apology, therefore, and much more than the simple act of pleading guilty, is required from a defendant to ‘prove’ to judges that their manifest remorse is ‘worth’ a reduced punishment. A guilty plea’s instrumental efficiency, here, though privileged in some of the literature above as a valid, distinct rationale for mitigating punishment, is the remorseful offender’s enemy, for it taints the authenticity of their feelings. As Weisman shows, judges are concerned with reading into a defendant’s non-verbal “body glosses” and “indicia… of personal transformation” in determining whether their more formal expressions of accountability – most often a plea and apology – are genuine and credible.164 While defence counsel may engineer, represent and manage some of these signs, their involvement can also weaken or counteract the ‘true feeling’ that a sentencing judge is trying to discern, and a client is trying (or trying not) to convey. Weisman locates considerable nuance and paradox in offenders’ ‘messaging’ of remorse in criminal court. It is here that defendants are expected to fully acknowledge and offer no excuses for their wrong, so that they may be seen as having transcended 161 Supra note 45 at 48. 162 Ibid. at 49. 163 Ibid. at 50-51. 164 Ibid. at 51-52. 92 their transgression, and consequently be appropriate recipients of mercy/mitigation.165 But while the question of remorse offers arguably the most important and meaningful opportunity for courts and offenders to communicate with each other (defendants, for example, need to know the precise bases upon which they are being judged, in order to respond to the normative assessments to which they are subject) the stories that judges and defendants tell each other are circumscribed by the pressures and compromises leading up to this denouement. Although judges – who may not be involved in or responsible for the legal and factual bargaining that often becomes the version of ‘what happened’ that is brought into court – do, according to Weisman, sincerely try to discern an offender’s ‘true feeling’ about their wrong, their ability to effectively assess such qualities are stunted and strained by the narrative enclosures within which sentencing hearings commonly operate. Further, as Weisman notes, in this context it is not so much whether remorse is actually felt by an offender, it is whether (and how) it is recognized according to the “‘feeling rules’ of the community”,166 which a judge is implicitly tasked with applying. These rules, in his view, require an appropriate measure of felt suffering (for having done wrong) and surrender to the moral authority of the court, untainted by any suggestion of strategic posturing. There must be neither excessive nor insufficient emotion here, and no stray strand of feeling can be allowed to detract from the performance. The courtroom display of remorse, it seems, is executable only by virtuosos or the utterly guileless. It is small wonder that, in practice, lawyers tend to counsel the less risky option of silence or short utterances of regret, lest their clients’ feelings – express and/or judicially interpreted – run afoul of the rules that, according to Weisman’s argument, exert informal but forceful influence over how cases are ultimately discerned and decided. 2.7 Conclusion This chapter has covered a wide and varied terrain locating and analyzing the guilty plea in its informing legal and practical context. First, I looked at the statistical picture in 165 Ibid. at 52-54. 166 Ibid. at 58. 93 British Columbia, which provides basic insight into the courtrooms wherein defendants enter guilty pleas and ultimately have their cases resolved. This snapshot illustrated that B.C.’s plea courts can be busy, imposed-upon places, which does provide some support for the contention that sentencing hearings cannot comprehensively realize the moral ordering that the law arguably asks of them, simply because they are overburdened by sheer volume. I then turned to consider some of the empirical studies that refute or problematize these quantitative claims. Malcolm Feeley’s findings regarding one local court system’s unofficial, process-embedded sanctions, and Debra Emmelman’s analysis of another court’s cultural environment provide two US-based arguments forwarding other important reasons for why the practice of moral ordering fails to match its theoretical and textually-supported aspirations. These arguments have been tested, and to a considerable extent validated, by the more specific inquiries that this chapter has surveyed, such as Joseph Di Luca’s critique of plea bargaining, JV Roberts’ work regarding victim impact statements, and Richard Weisman’s study of judicial constructions of remorse. My investigations in this chapter have been largely predicated on Oonagh Fitzgerald’s critique of ‘summary justice’ in the Canadian justice system, but tailored to my particular focus on how guilty pleas may facilitate or frustrate the criminal law’s concern with communicative moral ordering. In this vein, §2.3 outlined the guilty plea’s official function and requirements, comparing the dichromatic Canadian situation with some critiques and defences of ‘no contest’ pleas in the US, and also exploring how the diversity of motives and rationales that defendants conceivably pour into guilty pleas can be significantly influenced and obscured by the coercive mechanisms that the system has evolved to promote efficiency. These coercive forces, as §2.4 discussed, are most identifiably channelled through the practice of plea bargaining. After surveying a variety of perspectives on the use and virtue of this ‘indispensible’ means of resolving cases, I concluded that, while there is evidence that plea bargaining obstructs or sublimates the law’s concern for moral ordering, it ought not to completely frustrate formal sentencing hearings from undertaking this function. Section 2.5 focused directly 94 upon sentencing hearings as the most formally important stage for moral ordering, including in its gaze what I found to be its most promising features for cultivating the necessary information and engagement for this deliberation to take meaningful effect. Finally, §2.6 considered the influence that professionals, primarily defence counsel and judges, have in setting the course of sentencing hearings as expressive forums in this regard. As we have seen in this chapter, there are both opportunities and impediments to the ‘open’ communication of moral norms at the plea and sentencing stage of mainstream criminal justice proceedings. The opportunities, in keeping with a theory of criminal law as fundamentally interested in proportionately apportioning blame for this offence to this offender, are substantially found in the Criminal Code’s provisioning for the balanced presentation of perspectives. These provisions include allocution, victim impact statements, and mediated representations from the community and the wrongdoer. Such opportunities are further endorsed and expanded by some of the literature that focuses on the flexibility of pre-plea negotiation processes, and the potential that lawyers and judges may have to therapeutically support the normative engagement of lay participants. Most of the analyses of how the mainstream justice process operates that have been considered in this chapter, however, speak strongly of the abiding and widespread impediments to this aspiration. These critiques are found throughout systems and across jurisdictions. The moral ordering that is, necessarily, done in the course of a criminal justice process, these analyses suggest, mostly happens in the dim light of bargained outcomes and the poorly regulated ‘punishments’ incurred in the procedural burdens that defendants bear prior to and irrespective of their adjudged guilt. For these observers, although judges are officially empowered, and often motivated, to inquire into the moral dynamics of a particular case (and employ same in their dispositions) their efforts are hampered and often trumped both by competing instrumental pressures and other, less measureable interferences to the normative audibility of sentencing hearings. 95 This chapter indentified the major obstacles to moral communication in a system that, arguably, purports and aspires to build its assessments and ultimate authority upon such a foundation. I have explored these obstacles by way of guilty pleas, in part due to this mechanism’s sheer predominance in a system of plea-based criminal justice, but also to enquire whether guilty pleas provide any nurturance to moral dialogue in sentencing hearings. I found that the preponderance of the literature suggests that guilty pleas, to the extent that they can be validly characterized as strictly instrumental admissions, chiselled by coercive forces and managed by professional representatives, tend to stifle moral engagement more than they sustain it. It is evident that there are multiple interwoven reasons why guilty pleas do not, by and large, promote normatively communicative sentencing hearings, and why these hearings cannot, thereby, discern or articulate contextually calibrated, morally resonant dispositions. The literature that I have canvassed advances a corresponding braid of explanations and prescriptions, attuned to each observer’s focus and location. Theory, existing empirical studies, and statistics all suggest the guilty plea is a pervasive but problematic mechanism for ascribing moral culpability. This evidence, moreover, points towards guilty pleas as acting more as obstacles than invitations when it comes to furthering moral communication and dialogue in sentencing hearings. The final two chapters of this thesis consider these findings against the practices of particular courts, and the interpretations of particular legal professionals. For all their insufficiencies, criminal courts – in particular those accepting pleas and passing sentence – continue to function as official forums of moral ordering in society, and it is important to ask how they are actually doing in this regard. Accordingly, this thesis proceeds to undertake some of the empirical work necessary to most usefully respond to the question of how the criminal law’s concern for moral ordering is being grappled with by various courts and legal professionals in British Columbia’s ‘plea-based’ justice system. 96 CHAPTER THREE: Moral Ordering in Plea and Sentencing Proceedings – listening to the perspectives of legal professionals 3.1 Introduction As Chapters One and Two have related, the existing scholarship says much about how criminal justice systems fare as forums and facilitators of moral ordering. The empirical studies that form the remainder of this thesis are intended to contribute to this ongoing discussion, in two distinct ways. Chapter Four consists of an observational study that attempts to illuminate how, and through whom, law’s concern for moral ordering is expressed in sentencing proceedings in four provincial-level courts in B.C. (the “Study Courts”).1 As will be discussed in greater depth in that chapter, I approach that study as an ‘outside’ observer, in much the same position as most of the researchers whose contributions to the field were considered in Chapter Two. The perspectives of those who work within criminal justice structures, however, are equally necessary to a comprehensive development of this thesis’ questions. These perspectives cannot be fully accounted for by external theorizing or observation. This chapter, therefore, presents the views and experiences of a small sampling of justice system professionals who work in B.C. courts, as to how the law’s moral concerns are engaged with by legal structures, processes, and actors. Of course, ‘comprehensiveness’ in this realm can never be realized – there is simply no way to canvass or gauge the full spectrum of opinions across the multitude of circumstances and vantage points that even one court, let alone an entire justice system, encompasses. The small windows that this chapter opens up are, therefore, offered as partial – though nonetheless important – insights into how legal professionals envision and practice criminal law’s core ‘business’ of moral ordering, particularly in guilty plea and sentencing proceedings. 1 These courts, as will be more comprehensively introduced and described in Chapter Four, are the plea court (at the time of writing, Court 102) at the Provincial Court at 222 Main Street in Vancouver (“Court 102”) the Downtown Community Court, also in Vancouver (“Community Court”) a court based in New Westminster known as First Nations Court (“First Nations Court”) and a circuit court location in the northern B.C. community of Hazelton (“Hazelton” or “Hazelton Court”). The four courts are collectively known as the “Study Courts”. 97 3.1.1 Methodology I undertook the interviews that form the basis for this chapter with three research questions in mind. First, and most basically, I wanted to listen to how practitioners articulate their understandings of the law’s moral ordering function. Second, I wanted to gauge how legal professionals – primarily defence lawyers and Crown Counsel – conceive of and practice their roles in moderating the communicative exchanges that constitute plea and sentencing proceedings. Third, I reasoned that that these professionals’ familiarity with the courts and processes I was studying would provide perspectives and insights unattainable to outside observers. While the two empirical studies presented in this chapter and the next (respectively, the “Interview Study” and the “Observational Study”) both regard the same basic subject matter, they differ in purpose and approach. The Interview Study is intended to be a bridge between the themes and critiques developed, via an analysis of literature, in Chapters One and Two, and the observational analysis contained in Chapter Four. All participants in the Interview Study worked in one or more of the four courts that form the basis for the Observational Study and, as indicated above, their experiences in these forums are important to the insights developed in both chapters. Like most professional legal actors, the Interview Study’s participants work in multiple court settings, and the perspectives they articulate are based in experiences that transcend the Study Courts themselves. Thus, while I was interested in cultivating their views regarding these courts in particular, the insights and opinions they expressed extend beyond such contexts. 188.8.131.52 Recruitment and selection of participants Participants were recruited for the Interview Study via a process of self-selection: first, a letter of invitation2 was distributed by mail or email to potential participants, which I broadly identified as anyone working in one or more of the Study Courts in a professional capacity. Those who were interested in participating were invited to contact me to arrange an interview. I attempted to obtain a roughly equal proportion of participants with experience in each of the 2 Attached as Appendix ‘A’. 98 Study Courts, who came from a variety of professional backgrounds. While this would ideally have included judges, Crown, defence, and ‘third party’ professionals in each court, I was unable to secure this level of participation. Participants consisted of a total of eleven justice professionals, who were interviewed between January and April, 2010. All of the participants worked in one or more of the Study Courts at the time of interview. Nine were lawyers, and two were non-lawyer professionals who worked directly with lay persons in criminal court.3 Three Crown Counsel, five defence lawyers, and one person who acted in both capacities comprised the nine lawyer participants. These participants exhibited a considerable range in terms of age and number of years in legal practice. The most ‘junior’ participant had been a lawyer for approximately two years, while the most senior had been practicing for well over twenty. In addition to the nine lawyers, I also interviewed two courtworkers. Both of these individuals worked, although not exclusively, with First Nations Court, one of the four Study Courts selected for the Observational Study. I include their perspectives for two reasons. First, I wanted to hear how non-lawyer professionals perceive and experience law’s concern for moral ordering. Second, I wanted to listen to more than one voice speaking in relation to each of the Study Courts, and First Nations Court itself is distinct in being much less focused on lawyers and adversarial representation in general. Although I also invited (but did not obtain) participation from courtworkers in the other Study Courts, the inclusion of these two participants can be seen to reflect First Nation Court’s distinctiveness. My interviews with these two participants, however, largely resulted in the first rationale being considered under the rubric of the second. The voices of these non-lawyer participants are therefore hardly audible in this chapter’s more general inquiries, especially those which relate directly to the experiences of legal professionals in plea and sentencing proceedings. They are more prominently featured in Chapter Four’s Observational Study, wherein I consider each participant’s reflections on the Study Court(s) with which they are familiar. 3 Often generically referred to as ‘courtworkers’, these justice professionals are usually skilled in specific areas and/or equipped with specific resources to assist lay persons involved in criminal court with their particular needs. This can include victim services workers, Native courtworkers, and addiction counsellors. 99 Each participant reviewed and signed a consent prior to being interviewed, which included the provision that personally identifying information would not be disclosed. Generic identifying information, such as a participant’s gender, professional capacity, and court(s) in which they work, is made available, both to differentiate between participants and to provide important context to their perspectives. I also assign each participant a pseudonym. They are thus introduced as follows: 1. Hannah, who has been practicing law for eight years, works as a Crown and defence lawyer in northwestern British Columbia. 2. Gerald, who has been a lawyer for twelve years, has spent the past two years practicing as a defence counsel in northwestern B.C. 3. Mary, who has been a defence lawyer in northwestern B.C. since becoming a lawyer two years ago. 4. Patrick, who has been a defence lawyer in northwestern B.C. for eight years. 5. Rolf, who has been a Crown Counsel in northwestern B.C. for over twenty years. 6. Bruno, who has been a defence lawyer in the Lower Mainland of B.C. for seven years. 7. Nita, who has practiced as a defence lawyer in the Lower Mainland for over twenty years. 8. Trent, who has been a Crown Counsel in the Lower Mainland for five years, and currently works in Court 102 at 222 Main Street in Vancouver. 9. Allison, who has been a Crown Counsel in the Lower Mainland for six years, and currently works at First Nations Court. 10. Jane, who has over twenty years experience as an alcohol and drug counsellor with the Native Courtworker and Counselling Association of B.C., and regularly attends at First Nations Court. 11. Mike, who works as a support and liaison worker at First Nations Court. All interviews were conducted in a face-to-face environment, and lasted between 30 and 60 minutes. They were conversational in nature, but based upon structured lists of questions, or 100 interview ‘scripts’.4 I used similar scripts for each participant, with minor modifications tailored to a person’s professional role as Crown, defence, or courtworker. The interviews were audio- recorded and transcribed into written form. 3.1.2 Thematic Overview This chapter empirically explores and contextualizes the theoretical propositions introduced in Chapter One as well as the structural and systemic questions raised in Chapter Two, and its progression roughly replicates the themes developed in each. I begin, at §3.2.1, by outlining participants’ general thoughts on the interrelation of morality and criminal law, before probing issues related to their experience as practitioners mediating this relationship. Section 3.2.2 opens with the general question of how participants evaluate the interplay between personal moralities and professional duties, and then considers how Crown and defence counsel understand their responsibilities vis-à-vis the moral dimensions that may be located within formal acknowledgments of guilt and determinations of sentence. In §3.2.3, I ask participants to focus directly on how guilty pleas express or obscure defendants’ moral perspectives on their fault for a given offence. Section 3.2.4 considers the sentencing hearing itself as a locus for communicative moral ordering, including the utility of the statutory mechanisms of pre- sentence reports, victim impact statements, and offender allocution. Finally, §3.2.5 relates participants’ perspectives on the overall appropriateness and effectiveness of sentencing courts as forums for ‘moral speech’; that is, the audible engagement, by all potentially informing voices, with the process or product of moral ordering. These inquiries, of course, are fundamentally interwoven, and there is much thematic overlap, concurrence and contradiction both between and within participant responses. I include a short reflection at the end of each section, both to help synthesize the multitude of perspectives, and to offer my own interpretation of how the voices of these practitioners inform the themes and ideas privileged in this thesis. 4 These scripts are attached as Appendices ‘B’ through ‘D’. 101 3.2 Interview Findings 3.2.1 Morality’s Place in Criminal Court: An Essential but Contentious Relationship Morality pervades what I do and yet I don’t consciously think about it at all...5 Each interview opened with a broad question: how do you understand the relationship between law and morality, in the context of your work? Gerald, a defence lawyer in northwestern B.C., was anxious not to accept ‘morality’ as an undifferentiated, all-pervasive or unifying quality. He split the concept into three branches: [The] first is my own morality in the sense of right, wrong, ethics, what’s permissible and what’s not. And then there is the social morality, which is in some ways embodied in the Criminal Code and the statutes in which society is saying here are the minimum standards that we want everybody to meet. And then of course there is the personal morality of the client and whatever mix they bring to that… it’s all morality but it’s got different heads to it.…. There’s always overlap…sometimes it’s almost complete contiguity but often times it’s only a little patch where they all intersect.6 Other participants generally supported this idea of multiple moralities asserting claims for relevance in criminal court proceedings. There was agreement that the morality embodied in legislation is often contestable, if not in terms of legal liability then at the level of moral blameworthiness. Patrick, another northern defence lawyer who highlighted the “multi- dimensional” nature of morality, contended that although ‘wrongness’ appears as “cut and dried” in legal prohibitions, the moral meanings, requirements, and consequences of proscribed conduct must necessarily be contextually calibrated at the sentencing stage.7 For him, this was among the most important purposes of a sentencing hearing. Rolf, the veteran Crown Counsel who appears regularly in Hazelton court, cautioned that the law ‘on the books’ does not, of itself, provide moral guidance for answering these questions, but only a “legal framework” for determining legal issues. In this respect, he understood law and morality as “almost two separate worlds”, and he pointed to the dangers of an overly close relationship between the 5 Author interview with “Hannah”, January 17, 2010. All following quotations are taken from this interview. 6 Author interview with “Gerald”, January 19, 2010. All following quotations are taken from this interview. 7 Author interview with “Patrick”, January 17, 2010. All following quotations are taken from this interview. 102 two, wherein partial or prejudiced notions of moral repugnance could easily result in unjust laws and unfair prosecutions.8 Nita, the defence lawyer who practices in Vancouver’s Community Court, echoed Rolf’s concern. For her, the danger of criminal law overstepping its ‘appropriate’ role as evoker of shared social notions of what is “just immoral” has already been realized: …stealing is wrong. Killing people is wrong. Assaulting people is wrong. Breaking their property is wrong. But really, anything beyond that…. crimes of you know, prostitution and gambling and drugs and all that a kind of stuff I just think it’s absolutely crazy that the criminal justice system is involved in that sort of stuff…. we’ve skewed the whole thing in such a crazy way without looking at this sort of overarching umbrella of what really is worthy of denunciation… 9 Several participants also added their perspectives on the underlying causes of criminal behaviour, which, in their view, can distort or even obliterate the moral sensibilities and responsiveness of the persons whose conduct provokes the law’s response. From Bruno’s experience as a defence lawyer in Vancouver, the chief contributor of this disintegration is drugs, whether abused for intoxication or profit: Drug dealers destroy many lives but I’ve never heard one express remorse over the consequences of his or her actions. …If you fall low enough, morality can disappear….crime can become a philosophy, a way of life, and people become very self- centered. They only care about the consequences for themselves.10 Jane, the counsellor who assists people at First Nations Court, took a different view. She understood crime itself to be the consequence of a perpetrator’s afflictions or unmet needs: “[crime]… is an acting out… a cry out… for help. Because if they didn’t need the help, they wouldn’t be doing the things that they’re doing”.11 This section presents only a small sampling of participants’ understandings of the complex interrelationship of law and morality, expositions of which will weave throughout the more specific topics addressed in the following sections. The quotation that opened this section, however, adequately captures how almost all of the Interview Study participants approached 8 Author interview with “Rolf”, January 20, 2010. All following quotations are taken from this interview. 9 Author interview with “Nita”, March 10, 2010. All following quotations are taken from this interview. 10 Author interview with “Bruno”, March 25, 2010. All following quotations are taken from this interview. 11 Author interview with “Jane”, March 30, 2010. All following quotations are taken from this interview. 103 this topic: while moral concerns or valuations pervade criminal law and legal practice, their influence is rarely, outside of egregious cases, consciously considered. This base reality made it quite difficult in some instances for participants to engage with my invitations to engage with morality. Their responses, however, converge on some key points. All acknowledged the fundamental interrelationship of morality and criminal law, but each also related how the two concepts are not, and ought not to be, synonymous. Indeed, irrespective of their professional position, participants were careful to differentiate personal mores (whether their own or others’) from social standards and judgments of ‘right’ and ‘wrong’, and both of these from the business that courts conduct. This business, both Crown and defence participants implied, while not indifferent to other strands of morality, includes responsibilities to the ‘law’ that make it difficult, if not inappropriate, for courts deeply speak to or from the more organic moralities that arise as personal, interpersonal, or social valuations. As multiple participants noted, these three spheres of meaning are ever-shifting, their conversations inter-informing but fraught with inherent and contextual dangers. These dangers were noted to include the essential contestability and multi-dimensionality of morality itself, the power and coercion embedded in law, and the interfering variables of addiction, intoxication, past abuse and/or mental illness frequently borne by those whom the law seeks to judge for their conduct. As Patrick recognized, however, if these conversations are to be held at all within the judicial process, it is at sentencing where they must take place. I take up this theme in the following section, in which participants reflect upon their roles in the plea and sentencing process. 3.2.3 Approaches to Law’s Moral dimension(s) in Professional Practice Three areas are developed in this section: first, whether lawyers’ personal moral values affect the way they perform their professional duties, second, whether counsel (defence in particular) feel responsible for engaging with the moral dimension of people’s decisions to plead guilty, and third, how counsel conceive of and discharge any role as moral advocate or spokesperson at sentencing hearings. 104 184.108.40.206 The interplay of personal values and professional duties The lawyers whom I interviewed, both Crown and defence, were unanimous in stating that their personal views or opinions should not – and don’t – affect the discharge of their legal responsibilities. This was most strongly evoked by defence counsel regarding their role in advising clients in the pre-conviction stage of proceedings. Hannah, when I asked her about whether she tries to be a moral guide for her clients, responded emphatically: No. Facts and the law, facts and the law…. If you were just using your role to be someone’s moral guide, you’d be pleading out 95%... I am able to go click, I’m not responsible for [a client’s] behaviour… there is a point once you’ve gotten by noticing what your client’s charged with… then it’s business. Then it’s all about looking at the case and going can the Crown prove it? What’s at stake for my client?... What are the risks to you to fight this versus pleading out? Gerald expressed a similar view.12 Mary underscored that, while a person’s decision to plead ought always be up to them, she must be careful to neither give nor ‘hear’ too much information at this sensitive deliberative juncture, lest it compromise her ability to represent a client: I go through all the circumstances and I discuss with them what my view of the facts are and we have a discussion over... what they want to do first... I also don’t get them to say that they’re guilty unless we go for a guilty plea... it’s a fine line because sometimes they might tell you something that makes them guilty...13 Rolf, the veteran Crown, was adamant that prosecutors ought never to imbue professional decision-making with personal moral values. He stated: I think the Criminal Code is quite clear and I think when you bring your own personal morality into it I think there’s a danger of… treating people differently just because of one’s moral framework. …. I think guilt or innocence shouldn’t be based on morality. I think sentencing at that point it creeps in but I think you have to be careful because, whose morality? 12 He stated: with regard to his approach to clients who are reluctant to face inculpatory ‘facts and law’: Certainly I’m always constrained by instructions I get from the client. And if they say, now I don’t think I did anything wrong, I may go through with them if there’s this huge evidence review base against them and say okay, we go to trial… And I try to bring them around to understanding that the court’s denunciation of behaviour and setting of limits is a socially responsible function that should be in place. But if they still can’t get to it, then really there’s not much choice than to set it down for trial, in spite of the fact that there may be a poor outcome. 13 Interview with “Mary”, January 19, 2010. All following quotations are taken from this interview. 105 220.127.116.11 Defence involvement in clients’ deliberations and decisions on plea Rolf’s acknowledgement that the law’s moral dimension gains prominence after legal guilt is established was shared by participants from the defence bar. The latter’s common view was that after the factual and legal particulars of a case have been fully canvassed, and a client has decided to plead guilty, discussion of moral concerns such as remorse and accountability does become appropriate, even essential, to effective representation. As a precursor to this inquiry, however, I asked if it was important for counsel to understand the reasons behind a person’s decision to plead guilty, and whether that choice requires or includes an engagement with the moral dimension of a given offence. Patrick expressed what could be understood as a ‘traditional’ defence approach to representation, in which Crown and court are strictly held to their procedural and constitutional obligations even in cases where a client’s substantive guilt seems obvious.14 He stressed that, as a defence lawyer, he would not assist someone to plead guilty unless legal guilt is both established (on the law and facts) and accepted (by the client). No participant contradicted Patrick on this point. For him, the consensual taking of responsibility is a necessary prerequisite to, and indeed itself the moral dimension of, all of his cases that resolve by a plea of guilt. I asked him if he would be prepared to help a client plead guilty who indicated that they did not accept such responsibility. Patrick distinguished here between denials of factual responsibility, in which cases he stated that he would absolutely refuse further representation, and denials of a given offence’s ‘wrongness’: if they’ve instructed me to present that [information] to the court, I have two options. I can either say, okay I’m going to do this, but you need to know that the court may then refuse to accept your plea. Or the alternative is, I’ll let you explain it to the court. Because I cannot in good conscience do it. The general consensus was that both lawyer and client should be clear and in agreement on the latter’s decision to enter a plea. 14 For Patrick, this adversarial ethic amounts to a “moral duty” owed to clients. 106 Once a client has accepted legal guilt, I asked participants whether they go on to discuss any moral dimensions of this decision. Gerald expressed his view of what would be most fundamental to any defence lawyer’s duties vis-à-vis advising clients at this stage: Certainly I assume that most counsel in the back room are having those kinds of discussions with the client in some respect – if nothing else, did you know what you were doing? And did you know it was wrong? ...[C]overing off the basics. Hannah evoked her own more expansive, ‘counselling’ approach to engaging with those in the process of accepting legal guilt: I make it my mission, once I get a client in private, who’s instructed me to cut a deal for him or her, to not then ignore them as a human being… interestingly, when you’re having that talk with the client, there is no equivocation. They actually are relieved and unburdened that they’re pleading guilty…and I encourage them, I try to say look, I can’t put words in your mouth, but I’m going to tell you something, don’t talk in legalese, don’t try to be all formal. Speak from your heart. Are you sorry? Say I’m sorry. Say the words, and, and don’t talk about the complainant. Don’t blame anyone else for what you did… I mean I have to get their permission to do this, but I’ll lay their souls bare [to the court at a sentencing hearing]. Hannah was, however, convinced that most defence lawyers tended not to practice in this fashion. She expressed a belief that some colleagues actually attempted to shut down any discussion about moral perspectives, both in private and in court: a lot of [clients] come to you having had a different lawyer in the past… and there’s a lot of nudge, nudge, wink, wink that goes on with defence lawyers... [these] lawyers might have kind of encouraged them to just you know what, just cut the deal… this is good for you and just you know what just do it… [they] don’t talk to them about the morality of what [clients] have done. Other participants from the defence bar, although they did not perhaps share Hannah’s sense of “mission”, did not substantially validate her concern about the neglect of clients’ moral standing, agency and the moral implications of a decision to plead guilty. The prevailing view among these other participants, however, was that in-depth discussion of such issues was reserved for receptive clients. Mary, for example, viewed a given case’s moral dimension as something that a client would have to introduce, which in her experience only happened in a minority of cases. Nita told me that her likelihood of engaging with a client on a moral plane 107 “would really depend on the person… whether they’re interested in hearing [it]... I don’t believe in casting pearls among swine”. Nita also stated that she had encountered situations in which a client had rapidly changed their narrative in response to instrumental circumstances. She told me that, while she had seen other lawyers “plead people out” if instructed to do so, even when their clients had openly denied responsibility for an offence, she did not countenance this practice: I know there are some lawyers who’d say I will take my instructions even if they’re say I’m guilty or not guilty, I’ll still plead them regardless. I’m taking my instructions from my client if that’s what they want to do. I personally will not do that and I just say look, you just told me you didn’t hit this person. You were nowhere near it... so unless you have an epiphany that somehow now it’s falling within [the legal definition of] assault, you can either talk to [another] counsel or you can speak on your own behalf. Finally, Patrick noted that, especially in the cross-cultural context of legal practice in northern B.C., moral concepts may not be understood in a uniform way, even when legal guilt is admitted or unavoidable: I have to be cautious of… not imposing my moral beliefs on to them, because they may have a very different moral perspective coming from a different background etcetera. My job is to objectively tell them the law says this is morally culpable for the following reasons. And my job is not to debate with them whether or not it’s morally correct... The views that participants from the defence bar expressed on this point indicate a general alertness to the fact that a client’s decision to plead guilty does, necessarily, involve a dimension of moral judgment. As Patrick recognized, however, this assignation of normative meaning may not (and in his view need not) be an individual client’s or that of their local cultural context. While Patrick, perhaps, would not be inclined to try to span any gap between a client’s and the law’s interpretation of the wrongness of a given act, a lawyer such as Hannah would likely place more importance on perceiving and fostering connections between individual and institutional moralities, in preparing a client for the ‘effective’ performance of their decision to plead guilty. 18.104.22.168 Acting as a moral advocate or spokesperson at sentencing hearings Both Crown and defence lawyer participants agreed that their roles at sentencing hearings do, at least in the abstract, include acting as spokespersons or interpreters of moral values. 108 Because their roles are so different (even directly opposed) at this juncture, I develop each set of perspectives in turn. i) Defence perspectives Hannah was again the most vocal in evoking what in her view constituted “good” practice: When you then walk in and you’re doing a guilty plea and sentencing… then you absolutely if you’re doing your job, talk about morality… morality comes right back into the picture once you’re doing a good sentencing. Gerald expanded upon what such talk would likely consider: the entire circumstances of the offender and their family and the history and the preceding events and whatever triggered it off. The part played by the victim and so on in trying to look at okay, how does everything fit together so that interconnectedness that is part of morality is brought out…15 All defence lawyer participants told me that their duty towards their clients’ best interests continues throughout their representation, and that this overarching obligation would channel or modify the information and argument they put before a court at sentencing. Strategies for fulfilling this obligation, however, differed among participants.16 Trent, from his vantage point as Crown in a high volume urban plea court,17 confirmed the variability in approach to this aspect of defence practice, as well as offering his view of what is more and less effective: I know some defence counsel who yell at their clients themselves about how what they have done is wrong and make them feel much worse than the judge ever would. …[while] some defence counsel will try to really minimize the severity of what the client has done...but when they go too far, I don't think they're doing their client a service, 15 Bruno advocated a similar approach: you can either show or you can tell, you can state or you can describe, I mean everybody says, my client is 32 years old, he was born here, he has an addiction to… What I try to communicate is the kind of person [he or she is]. I try to give a judge a glimpse into the personality of my client to kind of put some flesh on the bones… 16 Bruno, for example, stated that sometimes I tend to be rougher on my client in my submissions than both the judge and the prosecutor on the theory that if I give it good to my client than maybe the judge will feel some sympathy [for him or her]. 17 Court 102 at the Provincial Court at 222 Main Street in Vancouver (one of the four Study Courts). 109 either from the judge, in terms of persuading the judge, or in terms of sort of shielding them from getting any kind of moral message from the judge.18 ii) Crown perspectives Hannah noted that although the ‘law on the books’ itself provides a basic framework for assessing the gravity of an offence and the degree of responsibility of an offender, it is the responsibility of individual prosecutors to contextualize these principles: “we’re the ones conveying the facts to the court… and it’s not just about reading in, it’s about making sure [to]… highlight anything egregious, abnormal…”. She tempered this statement, however, by stressing the balance and fairness that lie at the heart of her conception of the prosecutorial role: as Crown you don’t want to overstate it…. The best way to ensure … the moral nub of a case, because you want to convey that to get the sentence that you think is [appropriate], is to make sure that your submission on facts is clean, no melodrama, and thorough. For Rolf, the balance challenging prosecutors is often between their assessment of the moral dynamics at play in individual cases and principles of general application, such as equality: if you have a theft where someone stole because they’re desperate, I think at that point you’re compassionate… there is some leeway. …. But the problem is you have to be treating individuals the same too. You can’t just say because two individuals did the same thing and one person gets a break because you happen to agree with their views and the other person doesn’t because you don’t… Allison, the Crown at First Nations Court, agreed that considering all offenders ‘equally’, according to an unbiased analysis of the Criminal Code’s relevant sentencing principles, is important to her role, even in a court that takes an unorthodox approach: my position doesn’t stray from what I would normally look at in the traditional courts. It would be the same thing, depending on the different factors that I have to weigh. If I have an individual who’s coming through First Nations Court and they have a ten page criminal record that has many serious violent offences and they happen to come back through the Court again for a serious violent offence, I’m not going to take the position [that] just because they are a First Nations person in First Nations Court that... I’m not going to consider jail as possibility. It always depends on each individual.19 Ultimately, Hannah concluded, 18 Interview with “Trent”, February 15, 2010. All following quotations are taken from this interview. 19 Interview with “Allison”, April 12, 2010. All following quotations are taken from this interview. 110 whether you’re Crown or defence, making sure… that you highlight the facts appropriately permits the court to make the best moral decision possible. Isn’t that what a sentence is right? It’s the imposition of a moral decision. The vehemence with which all participants, whether Crown or defence, northern or urban, described the barrier between their personal moral orientations and their professional responsibilities suggests this to be a core and pervasive belief among criminal lawyers. This barrier was generally expressed as extending throughout the professional relationship with a client or case file. All participants agreed that ‘good’ lawyers do not let their moral values affect the flow of advice or discretionary decisions they are called upon to make. The law itself, including established ethical or policy-based guidelines, was upheld as necessary and sufficient for competent practice, with anything more ‘personal’ seen as imperilling this standard. Queries regarding defence counsel involvement in any moral aspect of a client’s decision to plead guilty were generally met with the same insistence that such guidance should not be allowed to affect the legal and factual calculus that must drive this crucial choice. Further, defence participants maintained that although the decision to plead is ultimately the client’s (who may have their own morally-based reasons for accepting responsibility for an offence) lawyers’ legal expertise and obligations can fairly counsel persons away from pleading guilty even when clients may feel or seem so. Patrick voiced this perspective especially forcefully, even casting the process of asserting an accused person’s rights as a moral duty he owes each one of his clients. Lawyers were less clear about the degree to which they direct and are directed by their clients in the consultative process leading up to a decision on how to plead. Mary, in particular, told me that she would not want to know whether or not a client ‘thought’ they were guilty before she had advised them of their legal situation. She did not specify how a client’s expression of guilt, whether factual, moral, or both, would compromise her ability to represent them if they ultimately decided to contest its legal establishment in court. Certainly, she could not advise a client to state or imply at trial that factual guilt was at issue, if it had already been disclosed to her.20 There is much more ambiguity, however, reflected both in Mary’s statement and in the professional Codes of conduct that guide and bind lawyers’ 20 As per The Law Society of British Columbia, Professional Conduct Handbook, Chapter 8 “The Lawyer as Advocate” (Victoria: Law Society of B.C., 2010), online: Law Society of B.C. <http://www.lawsociety.B.C..ca/publications_forms/handbook/chapter-08.html#8-10>. 111 behaviour, with regard to how moral quandaries in pre-plea discussions (whether counsel’s, a client’s, or both) are meant to be resolved. Faced with a client who voices inconsistent or contradictory information about their responsibility for a given offence, it seems that each lawyer’s individual moral compass is left to point the appropriate way forward. As Patrick and Nita’s comments illustrate, this challenge can arise both when a client who expresses guilt desires to proceed to trial, and when a client who professes innocence decides to plead guilty. Where certain counsel might strictly follow a client’s instructions,21 others, such as Nita, would have significant moral reservations in allowing the legal process to be employed in such a baldly instrumental manner. Participants did begin to acknowledge some permeability between strictly ‘legal’ and moral norms and values in the period after a guilty plea has been decided upon, at least by way of an openness towards or even active encouragement of lay persons’ engagement with the moral dimension(s) of unlawful conduct. As most agreed, these considerations become more palpable at the post-conviction stage of legal proceedings. Hannah was especially expansive on this topic in stating her view on the appropriateness and utility of engaging with her clients in a therapeutic, ‘soul baring’ fashion. When it comes to making sentencing submissions, both Crown and defence lawyers agreed that their roles do involve representations as to the appropriate moral light in which a court ought to assess offenders and offences. This incorporation of moral themes and claims was cast, by defence counsel, as always subservient to the adjudged ‘best interests’ of clients, and, by prosecutors, as channelled and moderated by their quasi-judicial obligations of substantively fair and equal treatment. Finally, it must be noted that the focus from both Crown and defence perspectives in responding to this query was squarely directed on the needs and rights of offenders, not victims or other ‘third parties’. 3.2.4 The Moral Content and Character of Guilty Pleas The capacity of guilty pleas to contain and convey normative meaning is among this thesis’ central inquiries. From Chapter Two’s literature-based analysis, it would appear that the plea is 21 I note that this view was not explicitly adopted by any participant. 112 a suspect or, at best, insufficient indicator of a defendant’s moral orientation towards their conduct. I was thus interested in how the views of practitioners themselves would bear upon this assessment. I asked participants to reflect on the moral dimension(s) of guilty pleas, in terms of pleas’ formation, communicativeness, and reception by sentencing judges. 22.214.171.124 Motivation(s) for pleading Patrick agreed that a majority of his clients do plead guilty, and stated that he needed to know the reason(s) behind a client’s decision to plead, in order to offer competent legal representation at this stage: it’s absolutely essential because I have to... understand what they’re pleading out to, and [whether] they can actually admit all of the circumstances. I have had clients that have terminated me because I’ve told them that they can’t plead guilty because they don’t admit each and every element of the offence, and yet they’ve gone into court and actually plead out. Mary, when I asked her whether a guilty plea was itself an admission of having done something wrong, stated “yes... that’s universally accepted by the court that a guilty plea is saying ‘I did this wrong’”.22 Mary did not, however, go so far as to endorse the communication of a plea as conveying remorse. “In discussions with clients, sometimes there are other reasons why they’re giving a guilty plea other than that they’re sorry”. All participants acknowledged that various pressures and inducements often affect a person’s decision to plead guilty, which they recognized as obscuring or distorting any specifically moral rationale that someone may have in taking this step. Hannah enumerated some of these reasons, as well as her professional response thereto: [The] first impulse is... they just want to get it over with. And at the plea, you never let that motivate someone to plead guilty. You stay well clear of that as defence, and even as Crown… The other reason can be that they are genuinely a good person who made a terrible mistake usually under the influence of alcohol and they do not want to make excuses, they want to take responsibility for it, get it done. ...The other reason can be sheer reality. They finally realize, and maybe it took you months to get them there as defence, that actually they are looking at a losing situation or the risks [are] too high to be fighting this and they should be thinking of pleading out…. usually I’m the one driving it in the sense that I’ve given them the advice that’s gotten them to that place. Because 22 Gerald echoed this belief: “in almost every case, the client, if they’re pleading guilty, [gets] it that it was wrong”. 113 normally people plead out for that last reason. They finally do realize that this is the best path for them. As indicated by Hannah, the burdens of the legal process, as well as the risks of an unpredictable or adverse outcome, are a major influence in the production of guilty pleas. Instrumental pressures and inducements were also cited by Bruno, a Vancouver-based lawyer: [whether] you get bail or not seems to have a big impact on how you end up pleading... If they get bail then they want to stretch it out, but if they don’t get bail they want to plead guilty. Often it’s because you get a good deal from the Crown. Often it’s because the Crown has an excellent solid case and there’s no hope at trial so you hope that the court will see the guilty plea as a mitigating factor. I would say that regret or remorse really doesn’t have much to do with it. These comments infer that lawyers (if not courts) know and understand why persons choose to plead guilty. They further implied that most people’s reasoning process is coloured by practicality and self-interest, and driven by the overt and covert influences embedded in the system itself. In contrast to these claims, Patrick, speaking from his experience in northern B.C., noted how guilty pleas, in their meaning and consequence, may be differently interpreted depending on the interpreter’s informing cultural reference: you have to recognize that [Aboriginals] come from a tradition and a heritage that has a very different moral view [than that of the Canadian justice system]... in the First Nations’ community your obligation is to take responsibility within your community, to acknowledge what you did was wrong. To have a shame feast and make amends directly to the person and the family of the person and then their house for what you did, and if that’s satisfactory, then you’re brought back into the community. Unfortunately what our system does is, we draw on that moral responsibility, because these people do have a high degree of moral conscience. But we draw on that, they say they’re guilty not understanding the full implications of what that’s going to mean. That’s how we end up with an overrepresentation of aboriginal people in jails. They don’t understand that look, I made amends, I went to the elders, I apologized, I had gifts given to the family, I took responsibility, now I’m here because your court says I have to be here, so I’m continuing that process not realizing I’m going to be going to jail. Patrick’s reflection illuminates the interpretative disequilibria that hobble the concepts of guilt and responsibility. What these admissions mean and require in a local context, he seems to imply, do not hold the same value in the court system’s (officially authoritative) interpretation. The absence of a shared normative language thus does damage to the moral ordering that 114 courts are able to provide. Mike, who has developed his perspective working with Aboriginal people in criminal courts, including First Nations Court, as a non-lawyer advocate and liaison, added to Patrick’s sense of the plea’s dislocated meaning: I don’t think many [clients] are even aware [of the ramifications of their plea]… they don’t look at it as that they’re pleading to something, they look at the end result. They look at it as an opportunity to step in front of someone that’s gonna hear them, so it’s like a no-contest rather than as a guilty plea … I don’t know if they’re even aware that [the courts] make a distinction.23 Neither set of perspectives – that which imparts predominantly instrumental rationales to plea decisions, or that which questions the extent to which such decisions are based on common understandings of the terms employed – bodes well for the moral ordering that a court receiving a guilty plea can contribute to extending, to individuals as well as to communities. Below, I enquire more directly into how participants sense that guilty pleas are interpreted by the courts within which they work. 126.96.36.199 How guilty pleas are considered by sentencing courts Participants did not express a high degree of confidence that most judges inspected beneath the surface of a formal admission of guilt. For Nita, this is not so much the result of naïveté (“the court... may not always know when [a plea is] sincere but it should always know when it’s for a strategic purpose”) as it is a lack of moral integrity, within a context of pre-trial pressures that lead to absurd situations: I find it offensive when judges will take pleas from someone who’s, after saying yeah but I didn’t really do it, and then they’ll take the plea anyway, and that’s wrong…. I’ve seen judges say, well then I’m not, I’m striking the plea. You know, we’re going to adjourn you over a week, you think about it. And then the words, if you’re smart enough to come back next time and just shut your mouth you can enter your plea... I’ve never liked that, never liked it at all…. to see a judge take a guilty plea from someone who just absolutely pounded the table, I’m not guilty, I’m not guilty, I’m not guilty, and says but I’m going to plead because you just detained me and I don’t want to spend the next three months in jail when the Crown’s only asking for 30 days. Okay well we’ll take your plea. Are you kidding me? It’s a horrible situation for this guy but it still doesn’t make it right. 23 Interview with “Mike”, February 11, 2010. All following quotations are taken from this interview. 115 Nita’s discomfort highlights the problems confronted by a system that uses the concepts of moral responsibility (and formally expects their interpretive adherence) yet which operates in a context wherein defendants cannot help but privilege their instrumental self-interest. Gerald and Patrick, who practice in northern B.C., expressed similar frustrations. Patrick told me that a lot of people are just so frustrated with how far behind the court system is, the back log, because they know they’re going to be under bail conditions that are restrictive and difficult, that even though they may not be guilty or they have a defence, will... even terminate your representation and go in and plead guilty because they just want it over. Mike, for his part as a non-lawyer justice worker, told me that many of his clients pleaded guilty simply to gain access to the services and approach available at First Nations Court: the court in my mind should not have to force a person to plead guilty to something that is defensible simply to have access to something that should be provided to them as course of right…. I deal with individuals throughout the province, and because of some practices, [they] are being remanded into custody without having their Gladue rights, and are having their charges waived down to be dealt with in First Nations Court as opposed to having their matters dealt with in their home jurisdictions. Participants, overall, noted how difficult it is, for both defendants and sentencing courts, to rely on guilty pleas as bases for normative dialogue. Flowing from this general viewpoint, participants agreed that guilty pleas, in and of themselves, don’t convey much in the way of rich or contextualized moral information. As all participants acknowledged, there are various reasons why people choose to plead guilty. Their responses suggested that practical, self-interested rationales outnumber normative motivations, although it was recognized that criminally accused persons often possess multiple, overlaid and even internally inconsistent reasons for making this crucial decision. Confirming Malcolm Feeley’s findings on this point,24 some participants also pointed out that the pressures and inducements of the pre-sentence period (including a person’s bail status, the economic and non-economic costs of defending cases, and ‘deals’ made available by the prosecution) are highly challenging to the maintenance of the freedom and voluntariness that are meant to characterize and protect the choice of plea. The distortions occasioned by ‘plea based’ justice, 24 See Malcolm Feeley, The Process is the Punishment (New York: Sage Foundation, 1979) at 30. 116 in these participants’ views, remain in plain evidence as a dominant reason for why sentencing courts are not (and, perhaps, cannot be) forums for constructive moral ordering. Patrick and Mike, while not disputing the above critique, focused on the particular cultural insufficiency of the Canadian justice system, with its attendant interpretive orthodoxies, in understanding what a plea of guilt may mean in a given Indigenous frame of reference. In this view, it is not so much instrumental pressures as normative incoherencies that provide the biggest obstacles to moral ordering, at least for these individuals and communities. Despite all the caveats and complexities that are brought into sentencing courts when pleas are delivered, participants echoed Oonagh Fitzgerald in expressing some frustration at the lack of scrutiny and integrity present to receive these admissions.25 The consensus was that whatever moral substance is contained in or presumptively demanded by the plea is overwhelmed by the court system’s impatient willingness to trade meaningful inspection for instrumental efficiency. This situation results, participants generally concluded, in sentencing hearings that do not, and indeed cannot, comprehensively consider many offenders’ perspectives upon the offence or their self-adjudged responsibility therefor, due to the un-scrutinized legal mechanism of a plea that is non-communicative, if not downright deceptive, about its formation and content. This somewhat disturbing finding is more fully developed in the following section. 3.2.5 Sentencing Hearings as Forums for Moral Discernment, Dialogue, and Expression This thesis has argued for criminal law’s fundamental concern for moral ordering, and for sentencing courts, in particular, as the deliberative, communicative forums wherein this concern is most explicitly manifest. As has already been seen, the ‘plea based’ nature of these courts, and of guilty pleas themselves, imparts serious challenges to this ideal. These claims have had comparatively little to say, however, about how individual courts are engaged in practicing their normative purpose. In order to test and contextualize the evidence that prior scholarship has compiled, I asked participants to reflect upon how, in their experience, sentencing courts view themselves as forums for the giving and receiving of moral messages. 25 See Oonagh E. Fitzgerald, The Guilty Plea and Summary Justice (Toronto: Carswell, 1990) at 168-169. 117 First, I directed their attention to the various tools available for courts to deepen their understanding of the gravity of this offence, and the degree of responsibility of this offender. 188.8.131.52 Pre-sentence reports (“PSRs”) Hannah was quite critical of the use and effectiveness of PSRs in the northern B.C. courts in which she practiced: defence lawyers seem to be inappropriately shy and worried about using them. It’s usually the Crown who seek them. They’re not that well done. The probation officers just could go that extra mile and don’t seem to. They seem to get them in the day of or the day before and really all it is, is a recitation of the person’s history, a rather cynical take on their view of things. [There’s] not enough follow up in terms of they can’t get [offenders] for the interview, and then a not strong enough view on sentence…. the moral place these reports could go would be in talking more about the comments that the accused made about what they did and how they feel about it, whether it was right or wrong, do they want to make amends?... [But] probation officers are not following up enough if the accused don’t make the appointment, or they’re making them too short, and the... the accused aren’t being trained enough by the defence lawyers to be candid. Nita, the veteran Vancouver defence lawyer, stated that PSRs are “really completely focused on the accused and... risk factors [regarding the likelihood of reoffending]”. Nita’s opinion supports the critical literature, reviewed above at §2.5.1, that suggests PSRs are rarely used to bring normative perspective(s) upon wrongful conduct into focus. For his part, Gerald was less critical of the effectiveness of PSRs in at least attempting to bring certain moral aspects of an offender or offence before a court for its consideration, and commented on Gladue reports in particular as “all about the larger moral dimension of the dynamic between the larger society, the local society, historical impact... in trying to address the overrepresentation of aboriginal folks in jail”. It was uncertain whether this represented Gerald’s idealized understanding of how Gladue reports are meant to function (which itself closely reflects that outlined in Chapter Two) or how these reports are actually being used in northern courts that primarily serve an Aboriginal population. Gerald suggested to me that, while the explicit language of the Gladue decision is, in his experience, rarely invoked, courts in his region were engaged in manifesting the decision’s principles on a regular basis. All the other defence counsel participants, however, whether in northern B.C. or the Lower Mainland, reported that they had had no 118 direct experience with Gladue reports.26 I discuss the observable uptake of the Gladue decision’s directives in these courts at greater length in Chapter Four. Trent, the Court 102 prosecutor in Vancouver, confirmed that in his experience “PSRs are not used very often... unless there’s a specific issue that you are really looking to get some information on”. He told me that he generally only requested one if an offender is self- represented, or when there is a mental health issue that requires an expert assessment. Otherwise, “it’s seen as a better use of time to just have the information come through counsel...”. Rolf, for his part, critiqued the usefulness of PSRs from a different angle. While acknowledging that PSRs and psychiatric assessments can be helpful to a court’s understanding of an offender’s mindset, he stated that he didn’t think that any external source could effectively illuminate the “black box” of a person’s true moral orientation towards what they had done. There was, in general, little disagreement that this mechanism (except in the case of Gladue reports) is not commonly used as a means of cultivating substantive insight into offenders’ valuations of the wrongness of their conduct, but more to enquire into specific risk factors and sentencing options. 184.108.40.206 Victim impact statements (“VISs”) I asked participants about the use of VISs in bringing forth this arguably important ‘third party’ perspective on the offence. I received a range of responses on such statements’ theoretical effectiveness in enriching a court’s understanding of the moral dimension(s) of a given case, but all participants agreed that VISs were, in general, rarely employed. Hannah commented on the reasons for the neglect of this “wonderful” resource, especially on the part of the Crown in the northern region in which she practiced: [as] a defence lawyer, you hate... victim impact statements.... But as a Crown, victim impact statements are really, really useful… they are very powerful, arguably the most powerful thing a judge could have in front of them regarding the morality of what occurred… [they are] a powerful and underused moral tool.... Crown are overworked… [they] no longer have victim services workers so they have to get the police victim 26 I must reiterate here that I did not interview any defence lawyers who practiced at First Nations Court. As will be further explored in Chapter Four, First Nations Court made extensive use of Gladue reports in its proceedings, and, in its very design and approach, may be seen as an attempt to embody this ruling’s promise. 119 services person to help them... so often what happens is guilty pleas happen rapidly or the Crown are not that organized [to ensure that VISs are submitted]. Gerald reflected upon how such statements might resonate with offenders, even if they don’t articulate explicitly moral perspectives: what they do is they note the pain and stress which the victim has been under because of the events and that becomes part of the moral dimension for the offender. Because they look and they say, oh man, I didn’t want to do that… Patrick added that in his view, a VIS has a lot more effect when it is the victim themselves saying it rather than the Crown simply reading it because the Crown reads it in a dispassionate objective way. The emotion is lost, the anger, the fear, the hurt. And how does the victim ever feel that they’ve been heard if all that happens is their words are read out but they didn’t get to do it. I think that one of the biggest things our system is missing is victims aren’t included. They’re an afterthought...in the average case, the assaults, even sex assaults, they don’t get the chance to say for themselves why this was a problem. And the courts... probably don’t want to hear it because it’s too painful. Mary, however, placed responsibility for the use of VISs more squarely upon victims themselves. They tend to be used, she speculated, only by those “who are very upset about what happened... it’s just the people who are at the extreme...”. Interestingly, while participants from the defence bar were more apt to endorse the potential value and appropriateness of VISs (notwithstanding that they may result in more onerous sanctions for individual clients) the Crown Counsel I interviewed were more critical of their worth. Rolf commented on VISs general lack of utility: Sometimes they are effective but most times they’re not... I think they’re just stating the obvious about the damage that’s done. I think the other thing is... you’ve heard about the suffering so often that it just doesn’t seem to register. … most times I find that people are just... voicing their anger but they are a necessary part of the process and it makes it easier for the Crown because you give the victim a voice… [but] , I think it’s better if it’s in writing quite frankly… if it’s not constructive than I don’t think it has a place in the courtroom. Trent, another Crown, told me that in his experience in Vancouver, only “maybe one of every 50 files” features a VIS: “a lot of the victims just don’t care that much... and then on the files when they actually do fill them out... you see some incredibly over the top [statements]”. 120 Since Crown Counsel are the justice professional most responsible for facilitating the presentation of a victim’s point of view, such dismissiveness of the mechanism designed for that very purpose may help to explain the paucity of resources and energy that it appears the justice system invests in VISs creation. Rolf’s statement, in particular, implies an understanding of the ‘justice’ privileged in sentencing courts as unconcerned, or at best impatient, with victims’ narratives. To the degree that these narratives do not matter to the law’s calibration of blameworthiness, Rolf’s perspective seems reasonable, indeed orthodox. But when interpreted in the light of J.V. Robert’s scholarship on the normative importance of lay participant communication,27 Rolf’s position adds to the improbability of courts’ functioning as forums of informed, meaningful moral ordering. 220.127.116.11 Allocution In contrast to a victim’s input, which the prosecution by and large controls, defence lawyers exert primary influence over if, and how, an offender’s voice is heard at sentencing. I asked all participants to comment upon the use and effectiveness of the statutory mechanism of allocution, in terms of the value it adds to a court’s discernment of a case’s moral dimension. There was quite a diversity of responses. Generally, the defence counsel participants practicing in the Vancouver area (Bruno and Nita) expressed caution or outright reluctance in regards to their clients accepting a court’s invitation to speak, while those based in northern B.C. (Gerald, Hannah, Patrick and Mary) tended to be more sanguine. Gerald, a northern lawyer, expressed basic comfort at the prospect: there are a few [things] which I’ll say... keep it short, go directly to the point. Don’t ramble … [But] everybody has an absolute right to address the court and the present themselves for themselves to the court, good, bad, or indifferent. And I generally encourage people to make some statement to the court of some kind if they feel comfortable doing it. Hannah provided an especially expansive view of this mechanism’s effectiveness: Some of the most powerful and successful sentencing [hearings] I’ve seen as a Crown and as a defence lawyer is when the accused speaks. When you’re a defence lawyer, if you’re grinding through high volume it can be easy to skip that, it can be easy not to 27 See J.V. Roberts, “Victim Impact Statements and Sentencing” (2002-2003) 47 Crim. L.Q. 365 at 377. 121 prepare your client to speak to the court. Civilians are understandably intimidated. But what I try to do is sit them down in private and talk to them ahead of time… this is their sentencing.... I don’t have a problem with a client speaking to the court. The only time I’ll interrupt them is of course if they’re being disrespectful or if they’re saying something absolutely contrary to their interest. Hannah acknowledged that it is not common for a client to actually take the opportunity to address the court, but on the occasions when they do it can have a powerful impact on all present. … nine out of ten times [clients] just want to get it over with. They definitely want to say some things but... they are just dying to sit. Like even as they’re finishing they’re sitting… But the ones that are the most moving is when they’re... [expressing] real feelings of remorse... [and] also when they turn around and they say they’re sorry to the community... because it’s so unusual, [offenders almost always] get a comment of commendation from the judge... All participants who spoke on this topic concurred that judges welcome substantive allocution, in the few cases where it occurs. Hannah: Judges kind of sit up, they’re surprised. And they’re quite interested and engaged. Pen comes up, they’re ready and often even a smile or a soft, male or female judge, a softer look comes across as they want to bring that forward. They want to invite that. Patrick, for his part, placed an onus on lawyers to nurture the meaningful engagement of allocution: Unfortunately I don’t think most lawyers prepare their clients to speak... what a lot of lawyers do is tell their client, the judge will ask them if they have anything to say [and] it’s a good thing if you say sorry, and that’s the end of it, because the problem there is the resources ... For lawyers that believe strongly in what you’re doing, you make the time because it’s important. For most people who are just trying to pay the bills... you may skip that… In 90% of the cases I feel very comfortable having my client speak directly to the court. I always felt speaking on their behalf about the moral issues or their perspective, that’s not my job. [But] there are clients that are so vulnerable, or so heinous, I don’t want them speaking to the court directly. Bruno addressed this topic very briefly. When I asked him if his clients spoke in court, he responded “very rarely. It’s usually disastrous when they do”. Nita said that “I spent the first 23 years of my [professional] life trying to shut my clients up in court... it would be a very rare situation where I would have allowed them to speak to a judge”. It was only in her more recent 122 practice in Vancouver’s Downtown Community Court, she told me, that she had relaxed strict control over this aspect of representation. Participants commenting from a prosecution perspective concurred that, while substantive allocution statements rarely occur, they can make a difference to how a case is understood by those listening. Rolf spoke about the effect a sincere allocution can have: When [victims] hear from the offender it has a very powerful effect. I’ve had times where people will speak at sentencing and I realize it’s a human being who just really screwed up. But, then you get people who just sort of you know, they just going through the steps too…. So I mean genuine remorse, sometimes you see people display it and, and when they do you think perhaps there’s hope for that individual. Maybe that person can put this behind them. But Trent, speaking from his experience in a busy Vancouver court, echoed Bruno’s point of view, and Patrick’s critique, in stating that “lawyers always give clients a chance to address the court but it’s never that great an idea to have your client address the court by themselves. You don’t know what they’re going to say”. In regards to allocation’s employment by offenders as an opportunity to, in Kimberly Thomas’s words, “humanize” themselves to the court sentencing them,28 interview participants expressed both hope and cynicism. Although, when judged by recipients to be sincere, remorseful allocutions were noted to have a profound and positive impact, responses also indicated that allocution statements do not commonly fulfill this function. While some participants determined that this is because offenders are generally not confident in opening themselves up in such a way,29 others pointed to defence counsel as not inclined to take the time or risk of preparing them to voice these personal and potentially volatile opinions.30 Chapter Four’s observation-based study will enquire further into the presence, substance, and influence of offenders’ ‘voices’ in plea and sentencing proceedings in the four Subject Courts. 28 See Kimberly A. Thomas, “Beyond Mitigation: Towards a Theory of Allocution” (2006) 75 Ford. L.R. 2641 at 2658- 9. 29 Hannah and Mary explicitly pointed to this as a contributory factor, and also implied that courts themselves tend not to be very facilitative places for such personal revelations. 30 Patrick, Bruno, and (in a self-critical way) Nita assessed the influence of defence counsel as a restraint on offender speech. 123 3.2.6 Overall Critiques of Sentencing Courts as Forums for Moral Expression As a way to sum up their reflections on such wide-ranging and indeterminate subject matter, I asked participants for their opinions and experiences of what is essentially this thesis’s most basic inquiry: how sentencing courts actually function as forums of the discernment and expression of a given case’s moral dimension(s). In particular, I invited them to comment upon three aspects of this question: first, how sentencing judges address the wrongness of offences, and the responsibility of offenders; second, the degree to which offenders hear such expressions and articulate their own; third, what factors are most important to the effectiveness of this process. These three queries presuppose, of course, that courts, and the criminal justice system they represent, actually accept this understanding of their role. All participants, at least as a matter of theory, agreed with the presumption that criminal courts intend to exert moral authority over the cases and in the communities in which they operate. As may be expected, however, the degree to which particular courts can and do realize this aspiration was a matter of much more varied opinion. 18.104.22.168 Judicial engagement with the moral agency of offenders ...it should never be easy to sentence an individual. It should be a hard thing to do. It should be unpleasant...31 All participants agreed that among the most challenging of a court’s roles is the discernment of a ‘fit’ sentence. While there are many facets to this undertaking, both in process and outcome, I asked my interlocutors to focus specifically on how judges interpret and engage with offenders as moral agents in the course of sentencing them. I group participants’ reflections in this section according to the courts with which they had the most experience, whether northern, rural forums or those in Vancouver-area urban settings. i) Northern Practitioners Hannah provided the strongest endorsement of courts’ efforts in this regard. She stated 31 Author interview with ‘Rolf’, January 20, 2010. 124 I can’t tell you how many times I’ve been struck by two things. One is the compassion of the court, the willingness to show grace… to people who are sorry or really made a mistake… the other thing is that even as a Crown... the courts [are] always appreciative of the fact that the Crown wanted to be there and that the state said something was wrong and that even if the court’s going to impose a light sentence, it’s going to make a point of saying, this behaviour’s not acceptable. Patrick agreed: … I can honestly say that all of the judges I’ve worked in front of in the North, there is a moral message sent. Sometimes it’s sent directly in terms of the judge admonishes the person and tells them what they did was wrong and why. Other times the moral communication is sir, you are such a bad person and such a threat to the community, I must lock you up. There’s no other alternative. Gerald, likewise in reference to the northern communities in which he practices, also suggested that courts often recognize offenders’ interrelatedness with other people in addressing their conduct and punishment: particularly in this setting... [judges will imply] I’m discharging you because the community needs you.... In the same way they’re saying you’re receiving a penalty because this affects your family, your friends, the neighbours, your clan, the community in these kinds of ways and often there’s a very explicit coverage of that in sentencing in our courts here. He added that judges, like lawyers, do tend to ‘frontload’ their pedagogical efforts: for the first ten cases you see a person, it’s a long set of moral instructions from everybody including the court. At a particular point, those instructions tend to go down in frequency and duration but they’re never completely absent not matter how problematic the person’s understanding is because of course part of the court’s role is the provide instruction to the general community. It’s not just the person in front of them. Gerald concluded, however, that in his view defence counsel are more responsible than judges in ‘helping’ persons develop an understanding of their culpability, in legal if not moral terms, “because otherwise you’d never get to the guilty plea”. Patrick, for his part, pointed out the inherent diversity among judges, which affects their approach to the moral dynamics of a given case: Some judges... are much more open to factoring moral culpability.... what do they know about the individual? What does defence counsel present about the individual? What 125 is the individual willing to acknowledge and take responsibility for? That really does guide some judges. Other judges have a much more black and white moral view of it…. On the other hand, Hannah also suggested that it is easy for judges to neglect contextual moral discernment and expression, especially in ‘routine’ circumstances: You do get the feeling... that this is a bit of a mill pushing through, same people, same offences.... And sometimes I really do wish, even as defence counsel, that the court would just take a moment, say a few things... are we all that jaded? Let’s just stop for a second. This person stole. Is stealing really not that bad anymore? Say a few words. Show a little disgust. Mary offered a different angle on a similar assessment, suggesting that in her experience, courts leave it up to offenders to ‘open the doors’ to moral engagement: I’ve never heard a judge... ask the person how they feel… [but] if an accused apologizes for what happened then there is a dialogue about that they’re accepting blame for what occurred and the court views that as a good thing. And then if there is a situation that society would view as something not good, then the court will say that... [but] if someone drinks and breaches their probation order, I don’t usually hear much about whether that’s right or wrong. Mary also criticized the un-nuanced ‘rule bound’ nature of courts’ ability to respond to unlawful behaviour, which in her view obscures or oversimplifies the moral messages that it might seek to send. She used the example of an alcohol dependant offender who breaches his or her condition not to drink: I feel that the court has no option but to just make them follow more rules. And I think there’s... other ways to help these people than to say, well you’re not drinking so still don’t drink for six more months. Or you’re drinking so I’m going to send you to jail for seven days…. I would say there’s very few cases where what you’ve done is a bad thing. It’s more, this happened and therefore this happened. And that’s why [morality] is not discussed as much. … I feel that sometimes we’re making people feel that they’ve done something wrong but... what level of wrong they’ve done is not necessarily [talked about], like they’re not bad people, they’ve just made wrong choices. Rolf, speaking from his long experience as a Crown in northern B.C., explained why in his view courts don’t spend any more time engaging with or expressing moral values: it’s almost like there’s two types of offences. There are the ones that are just your mainstream criminal offences and then you have the ones that society just finds... something totally unacceptable… you’ve crossed the line and you’re not someone who’s done something, you’re a certain type of person… 126 While the former make up the bulk of provincial courts’ business, Rolf suggested, it is usually only in the latter that the moral issues at play are brought forth, and even then not always comprehensively. He added that most people don’t want to know about the background of the offender... you raise them with neglect, with physical and sexual abuse... you create that person.... I think what happens is, regardless of how they got there, eventually it’s a problem you have to deal with. You can’t undo what they are, and then you just have to sort of make sure they don’t do it again. So that’s the thing. I think with sentencing sometimes there’s this despair, you’ve run out of options. At that point you know, and maybe that’s a moral decision when you say I’m not going to be blinded by my compassion, because I have to think of others…. Although Mary and Hannah noted that the influence of ‘rules’ and ‘routine’ does have an impoverishing effect on the moral messages that sentencing courts seek to communicate, the prevailing view among northern-based participants was that judges endeavour, at least, to address offenders as members of discernable normative communities. As related below, this deliberate acknowledgement of the context from which individuals draw meaning (both good and bad) was somewhat less evident in the responses of participants who practiced in Vancouver courts. ii) Urban Practitioners Trent, a Crown in a busy plea court, illustrated how the heterogeneity of offences, offenders, and judges influences the complex, “intuitive” calculation of moral culpability: It's interesting how different people get punished... last week there was a guy who apparently is before the court all the time but he's a seriously addicted person with real mental health issues. And he's always in for a couple of days and he gets released... I think the theory behind it is that he's not really morally responsible for his acts…. And you get other people who have committed far fewer crimes and they're punished much more harshly because they do have the understanding of what they are doing is wrong.... it depends on the judge a lot of the time…. it depends on the offense. It also depends on how busy the court is that day…. From the defence bar, Bruno predicted that with “the movement towards... less discretion in sentencing”, individual judges will feel less and less empowered to discern and apply contextually calibrated moral messages. From his experience in Vancouver, there is already a paucity of explicitly moral references at sentencing hearings: 127 A court will... look at case law and analyze case law but very rarely will a judge say, this is wrong because as human beings... this offends not just the Criminal Code but our innate sense of decency. Very rarely will a judge say that... I think judges might be afraid of coming across as biased or too judgmental or too angry. It’s mostly pretty dry, clinical stuff… you hear very little about morality, it’s more about pragmatic considerations. Well I’m putting him away for six months he’s not going to steal anything for six months. Or, it’s mechanical.... if you’re a judge you do 30 guilty pleas in one day... you get a bit jaded, you’ve seen it all… part of it is just the volume of the case load... And I think to some extent there’s a feeling of futility... [A judge] could go on about morality but the guy just doesn’t get it. The above quotes, drawn from participants who practice in what is perhaps the busiest plea court in the province, illustrate both the acute challenges to expressive moral ordering encountered in these forums, and the underlying durability of sentencing’s normative basis. Judges in these settings, in comparison to less urban courts, may more strongly experience the ‘futility’ of actually communicating moral messages. Given caseload pressure and the unreceptive mien of certain offenders, many may have indeed, as Bruno noticed, given up trying. Trent’s observation that “different people get punished” in different ways, however, indicates that even the busiest of courts remain concerned with moral ordering, although not so much with its expression. Below, I consider participants’ reflections on how offenders themselves participate in sentencing courts’ discernment of a given case’s moral character. 22.214.171.124 Manifestation of offenders’ moral agency at sentencing To begin, Hannah noted that offenders she has dealt with do tend to understand and accept a court’s moral judgment: usually it’s just like a child and a parent, these clients know what they did was wrong… [and] there isn’t much variation at all between what the judge and the client feel. What I find more often is the problem is lawyers interjecting themselves. Gerald agreed that certainly there are those... folks who just don’t get it, who don’t have a moral sense or who say what everybody else says is irrelevant... but most... by the time they’ve concluded [the case], get it… Most offenders apologize in their submissions to the court. Some of them are quite lengthy and they lay out this is how it’s affected other people and I feel awful because. Other’s just say, I’m sorry. Stand up, sit down, that’s it. But most folks will make some effort towards apologizing for their actions in a sentencing hearing... 128 He tempered this generally positive view, however, with a ‘realistic’ assessment of the challenges that many individuals bring into sentencing courtrooms, explaining that “we have a high number of people in our area with... foetal alcohol and... other chemically related neurologic problems”. In his view, such conditions reduce the likelihood that people are able to self-identify and respond as moral actors, even when engaged as such by the most motivated of judges.32 Nita focused on the mixed feelings that many of her clients bring into sentencing hearings, in which the acceptance of responsibility is diluted by competing orientations, and, very often, obscured by addiction: I would have clients who were very remorseful for what they did but could still justify it to themselves... I suppose you need to justify it if you have any kind of conscience at all, you have to be able to live with yourself, and they’re drug addicts. And they really, really believe that at the end of the day, they needed that television more than you did… I asked Hannah if she noticed any difference between First Nations clients and others when it came to accepting the moral authority and intelligibility of the court process: most First Nations people I work with are... more scared of their community’s disapproval of them, more aware of the long-term ramifications of what’s they’ve done. Not financial. We’re just talking moral shame... usually the First Nations clients are more willing to just to give a real authentic, I messed up. And as much as I hate to say it, I think possibly it’s because they have been through more... more difficulty, and more poverty, and more being beaten down anyway by life, that what’s admitting another failure? Hannah’s response, like the question, implicates a complexity of presumption, observation, and interpretation. To my question regarding her Aboriginal clients’ acceptance of the court’s moral authority, Hannah responded with a reflection upon the effect of their community’s disapproval. As Chapter One of this thesis pointed out,33 courts and local communities do not, generally, exercise the same or co-extensive moral authority. Each does, however, influence how moral censure is expressed to, and accepted by, individuals. I explore the relationship between sentencing courts and their community contexts at greater length below, at §126.96.36.199, 32 Patrick, like Gerald a northern practitioner, concurred with this view. 33 Particularly at §1.3.5. 129 as well as in Chapter Four. Hannah’s response also relates an empirical observation of her Aboriginal clients’ greater willingness to accept responsibility for having committed a criminal wrong. This statement, which cannot easily be tested or proven, does not speak to whether admissions of responsibility are audibly conveyed in open court. Chapter Four’s observational study attempts, in part, to assess this speech, from Aboriginal as well as non-Aboriginal offenders. Gerald, who practices in the same northern region as Hannah, focused his response to this question more explicitly on the authority of courts. In his experience: we have folks who say, I don’t recognize the authority of the court, period. And I’ve got three cases like that right now. But that’s out of a very large caseload. Most people aren’t doing that kind of analysis on it. They say well okay, you’ve got the power and yeah it looks like what you’re doing is correct... Finally, Allison, the Crown Counsel who works at First Nations Court, traced the evolution that she perceives in many offenders’ moral orientation towards their conduct over the course of the sentencing process: there’s the automatic defence mechanism of trying to present yourself in the best possible light and maybe minimize behaviours. But I think as time goes on, usually when people enter a plea, and then there’s a report or there’s information that’s gathered and there’s more discussion to be had before getting to the actual talking about the offence and again, I think it’s that building that sort of rapport and trust... Most people have been pretty accepting of their behaviour, and acknowledging that because to be able to create a good plan and to work on your healing you have to do that. You have to really look at what created this situation and how did you get here in the first place. Responses, in general, identified offenders as persons both interested in, and, at base, accepting of, a court’s status as moral judge. As Nita and Gerald noted, however, some offenders may have perspectives on the relative or contextual moral wrongness of their conduct that do not mesh easily with the hermeneutics commonly employed by sentencing judges. Especially in settings where the sentencing hearing is conducted as a single, often perfunctory court appearance, these views may rarely be aired, much less considered. Allison, speaking from her experience in a court that takes a more drawn out, collaborative approach to sentencing, indicated that this style of deliberation and decision-making may allow offenders (and perhaps, in certain cases, the court) to develop their understandings of a given case’s 130 normative meaning and consequence. In this chapter’s final section, participants reflect upon ‘what works’ when it comes to the discernment and communication of moral values at sentencing. 188.8.131.52 The effectiveness of courts as forums for moral expression When I asked Hannah about what factors in her view were most apt to facilitate communicative moral engagement between judges and offenders, she offered an interesting response: [i]t’s not the judge. It’s not even the Crown. The first thing that came to my mind, and this is true because it affects my lawyering, is the physical environment…. when your client can see the eyes, the expression in the eyes of the judge, huge. A little smile, anger, curiosity, I think that’s a big thing. It helps us as advocates too. Mary and Nita both commented that the presence and involvement of a victim in court substantially contributes to meaningful moral engagement, at least between the individuals most intimately affected by the crime. Mary related one experience in particular: the complainant came to a guilty plea which almost never happens... my client stood up and started crying and apologizing to her and saying I’m sorry that this happened, and I felt that that was because she was there and he had that opportunity to say it to her... Mary, whose practice is based in northern courts, also suggested that the closer identification between courts and communities would enhance the former’s moral relevance and authority: I don’t know how we would do that but, I think it’s, I feel like [the court is] very isolated. That the only reason you’d go there is because you have to... the complainant won’t just come because they want to see what happens, they only come when they’re told to come.... I think if it was more a community saying what you’ve done is wrong, then there would be more of an understanding. Patrick concurred, saying that … I think both mainstream and First Nations peoples view the conduct the same way. That’s not good conduct. It’s how they [justice processes] treat them [wrongdoers]. Our system... the first time we give somebody the benefit of the doubt and say here, go get some counselling and don’t do it again. The First Nations approach is different. The First Nations approach is, it doesn’t stop with counselling. It involves them going and sitting with elders and to make an actual amends by hauling firewood, going out hunting and bringing meat into the village, participating in ceremonies as a volunteer, and that [imparts] a moral culpability that’s much higher... [If local courts] involved elders from the house of both the offender and the victim I think [that] would be incredibly beneficial... anything that’s going to help people relate their offence, their conduct, to 131 the consequences to the community and that they have to make restitution and compensate those that have been harmed by their behaviour... He stated that in his experience local courts are alive to the importance of reconciling the moral standards and approaches in a given community with those ‘imported’ by the justice system. This integration can be accomplished, he noted, when a court’s dispositions are imbued with information and guidance about the type and nature of sanction that the community considers appropriate. Mike, on the other hand, painted a much more fissured picture from his perspective as an indigenous person working in the mainstream justice system: With the existing court system as it is... it’s more about power and control of resources and control of people within the community... that comes from a perspective that is not traditionally aboriginal… in nature, form, or fashion. In many ways the aboriginal community denounces certain behaviours much more significantly and punitively than what the court system could even consider … but generally within the scope of things it’s much more restorative... it’s teaching moments, and those teaching moments begin early on, and it continues throughout a person’s life. So again I think it’s a cultural departure between the two, and that’s always led to a great deal of conflict... Rolf also spoke of the relationship between courts and communities, drawing forth both some of the advantages and challenges of intimacy: if a judge lives in a community, they have a better idea what needs to be done and what the problems are... they understand the community better... and they have a better idea about what’s available, what are the resources and also... unless you live within a community then it’s hard to say how the community is going to reflect on, on the moral authority of the court.... [But] you can be close to the community but you can be doing a poor job... [and] sometimes people respect authority when it’s distant... they’re more intimidated by authority when [it’s] distant... the other problem is when you live in the community it may be a bit more difficult to be objective about certain things. Nita, for her part, focused on the system within which particular judges work and are identified. In her view, this superstructure is far too compromised to allow courts to exercise real moral authority over their subjects, especially in contentious areas of the law: … anyone trying to exercise moral authority should be above reproach…. I say you leave jail for people that actually hurt someone... So I don’t think [courts] can exercise moral authority because they’re dealing with laws that in my view are not morally there. So how can you exercise moral authority when you get a judge who says well, and I’ve 132 heard it said many times, well if it were up to me... marijuana wouldn’t be illegal but I have to enforce the law... The most consequential factor that participants pointed to, however, was the pre-existing character and capacity of the person being sentenced. For Hannah, an offender’s sincere appreciation of the harm they have caused often does, in her view appropriately, result in a mitigated sentence, especially in regards to non-custodial punishments: … I’m not going to say it’s huge. The judge has got a job to do. But what I have noticed is... that the probation term... not the length of it, but the conditions are usually less restrictive when there’s been this utter and complete I’m sorry, right? And that’s appropriate.... It takes courage to do that... it shows that they’ve already begun to be punished within themselves and there is more of a chance of them making amends and being deterred from doing this in the future. Rolf supported this interpretation: [remorse] makes a difference. For the simple reason... there’s hope. If someone has remorse then, they’re not condoning what they’ve done. Also they can change... there can be no rehabilitation without remorse…. Trent, another Crown, spoke of how offenders’ expressions of remorse are commonly approached in his experience: they all say I feel really bad and want to change. Some judges, I think, take it at face value, and some of them take it with a grain of salt and understand that there are a lot of the people who are addicted in here, stealing to pay for their addiction. But generally, if they come up and say look um, I feel really bad I'm sorry, you don't try to crack it too much…. Generally remorse is a mitigating factor.... Rolf maintained, however, that it is not up to courts to nurture or facilitate the expression of this quality: You can’t. It’s a courtroom. There’s no way to do it... you’re in front of a crowd, and you’re in court. Most people just will keep their mouths shut and look down.... it’s not the format that’s going to encourage people to look inwards... you’re surrounded by all these angry people that you’ve hurt. I think it’s a very emotionally laden place... one of the more stressful forums you can have and it’s not going to encourage people to open up to anything… most people will just be very defensive. Speaking from their experience as practitioners, participants provided insight into what contributes to the mysterious alchemy of morally resonant sentencing hearings. Many spoke of the relationship between courts and communities as relevant to how sentencing hearings may 133 substantively ‘hear’, and be heard by, the individuals whose conduct is being evaluated therein. These communities are commonly conceived of as groupings of populations, but they are also constellations of meaning. Participants who work in First Nations communities were particularly attentive to the importance of courts understanding, and reflecting, local values. In this regard northern participants expressed qualified optimism that courts in that area, although based in pan-Canadian legal culture and doctrine, were able to sustain the moral intelligibility and authority necessary to be places where local individuals and communities can hear, speak, and experience ‘justice’, while participants from urban settings (Nita in particular) were more concerned with the moral authority that the overarching ‘system’ does or does not represent. Some responses indicated that the efforts that courts make to attend to communicative engagement within the sentencing process can make a difference to hearings’ effectiveness as venues of open, audible moral ordering. Allison spoke of the progression that she notices among offenders in First Nations Court, in terms of how they come to accept and contend with the causes and implications of their offences in the course of multiple appearances. Hannah spoke of the intimacy that some courts instil by their physical layout, and the presence and involvement of victims was also noted as an important marker of moral resonance. Ultimately, however, participants stressed the overriding importance of the personal qualities, characteristics, and experiences of given offenders; the implication was that while a sensitive judge might be apt to spend time and energy on fostering moral communication, the value of such forays is dependent upon the receptivity of offenders. This receptivity, as Hannah, Gerald, Patrick, Nita, and Trent noted, is itself dependent upon factors that are beyond a judge’s control, such as the offender’s pre-existing moral, intellectual, social, cultural, and even physical makeup. Mary, indeed, suggested that judges in her experience tend not to initiate explicit enquiries into a person’s moral responsibility for a given offence; if offenders themselves do not take active steps to engage with the process as moral actors, such issues, in her view, are rarely discussed. Finally, Rolf contended that courts should not try to facilitate offender engagement, as sentencing hearings themselves are fundamentally inhibitive of these dialogues. 134 This section identified some differences of opinion and evaluation with regards to the ability, interest, and effectiveness of sentencing courts as sites of expressive or dialogic moral ordering. Some of these differences manifest most strongly between those with experience in different courts, while others can be understood more as personal opinions. While the latter, particularly as they are held and expressed by practitioners who are among the most influential actors in sentencing hearings, are of course relevant to how those hearings practically progress, the former differences are more easily highlighted for occasioning further investigation. Below, I conclude this chapter with a discussion of how the Interview Study provides both substantive and justificatory material for the Observation Study that is presented in Chapter Four. 3.3 Conclusion Not surprisingly, eleven interviews with eleven different legal professionals, considering a broad variety of topics, results in a complex richness of responses and interpretations. Much of this material concerns inherently subjective perspectives upon the nature of morality itself, how it coincides or interfaces with criminal law, and how the law and legal practitioners ought to discharge the moral responsibilities given them by the nature of their work. The Interview Study, in this respect, was intended to provide a flavour of how these questions are contended with by some of the persons most closely connected to such subjects on a daily basis. I found that those working in criminal law do, in general, accept that there is a moral dimension to their field, and that courts bear some onus of evoking or engaging with the implications of this reality. My enquiries also revealed that, within this encompassing, unavoidably normative framework, both Crown and defence practitioners strive to maintain and uphold boundaries between personal moral values and their professional duties. This thesis is not meant to critique participants’ personal opinions upon these broad topics. This chapter has also canvassed topics of a more specific nature, including the capacity of guilty pleas as a morally communicative mechanism, the use and effectiveness of statutory tools for this purpose, and practitioner reflections upon how various sentencing courts actually function as forums for expressive moral ordering. This chapter’s Interview Study thus obtained insights that can be usefully harnessed to, and investigated by, the Observation Study that follows in 135 Chapter Four. I found that interview participants linked what they understood to be the most fruitful communicative engagements in sentencing proceedings to several factors: judges’ time and sensitivity, the composition of courtroom environments, the nature of particular offences, third party and community responsiveness, lawyers’ facilitation, and, most importantly, the interest and capacity of individual offenders to speak and listen to the moral themes that inhere in their cases. The responses of individual participants revealed some interesting differences between how urban, northern, orthodox and innovative sentencing courts engage in the work of moral ordering. I found, for example, that the lawyers who worked in Hazelton were much more likely to consider how the court, and the justice system generally, were perceived in the surrounding community, and how these perceptions in turn influenced judicial concern for the normative content and context of sentencing proceedings. I also heard participants who worked in what may be called the ‘problem solving’ (Community and First Nations’) courts to speak more purposefully, and with less despair or exasperation, about the manifold individual, social, and historical dysfunctions that contribute to criminal offending. These dysfunctions, of course, can be observed in virtually all criminal courts, but are perhaps less easily acknowledged or accommodated in more orthodox environments, such as Vancouver’s high- volume plea court (Court 102). These perspectives, and participants’ insights regarding the factors that influence the similarities and differences between courts, provide the impetus for my Observational Study. While not all of the findings canvassed in the Interview Study can be empirically explored through observation, others can be tested and enriched by this method. In particular, the following chapter undertakes an investigation of the incidence and quality of the moral speech that can be heard in the four Study Courts. 136 CHAPTER FOUR: The Audibility of Moral Ordering in Four Criminal Courts 4.1 Introduction to the Observation Study Expressive, communicative, engaged. Thus far, this thesis has employed a number of adjectives to convey the manner in which the criminal law’s concern for moral ordering ought to manifest in plea and sentencing proceedings. As other scholars1 as well as some of the Interview Study’s participants2 have recognized, however, the moral ordering that courts undertake at this stage is often not performed in such an open manner. Depending upon the acuity of this diagnosis, it is thus difficult, if not impossible, to comprehensively perceive how individual courts actually practice the moral ordering that this thesis has set about investigating. Notwithstanding this important limitation, however, this chapter presents an observation-based analysis of how four provincial courts in British Columbia audibly reflect a concern for moral ordering. I approach this inquiry in both a numerical and qualitative manner, by gauging the composition of in-court communications according to their focus on identifiably moral themes. I refer to these communications as “moral speech”. This criterion cannot capture all, or perhaps even most, of the normative understandings that participants bring to and draw from plea and sentencing proceedings. It is proffered, however, as the aspect of moral ordering that is most amenable to observational analysis, and that which relates most closely to the ‘expressive’ version thereof that this thesis privileges. Moral speech is more expansively defined in §4.1.3. First, I formally introduce the four courts whose proceedings I observed. 1 See, for example, Malcolm Feeley, The Process is the Punishment (New York: Sage Foundation, 1979) at 15. Feeley’s work on the normative ordering that courts conduct is discussed above in Chapter Two, at §2.2.1. 2 See, for example, Trent and Mary’s comments on the bases for judicial decision-making, discussed above in Chapter Three, at §184.108.40.206. 137 4.1.1 Study Courts The courts I selected for this empirical study (the “Observation Study”) are the provincial plea court at 222 Main Street, Vancouver (“Court 102”) the Downtown Community Court at 211 Gore Street, Vancouver (“Community Court”) First Nations Court in New Westminster (“First Nations Court”) and the circuit court sitting in Hazelton, B.C. (“Hazelton” or “Hazelton Court”). These four forums (collectively, the “Study Courts”) afford glimpses into a variety of approaches and contexts within which courts operate in B.C. Court 102 offers an urban, high-volume setting for observing the ‘orthodox’ performance of plea and sentencing proceedings. Community Court, located only steps away in the same downtown neighbourhood, handles similar crimes and clientele, but incorporates a more “collaborative… problem-solving” approach to its cases.3 First Nations Court, based in New Westminster, is a unique court for Aboriginal offenders in the Lower Mainland. It conducts the same proceedings as any criminal court, but operates with a much smaller caseload than the above two courts, and adopts an approach designed to redress the disadvantages experienced by Aboriginals in the mainstream justice system. First Nations Court can, in its design and approach, be seen as an attempt to substantively respond to the concerns articulated by the Supreme Court of Canada in R. v. Gladue.4 Finally, the Hazelton circuit court services a small community in the northwest of the province, located between the larger towns of Smithers and Terrace. Though not a reserve community itself, Hazelton is located in the heart of the Gitxsan and Wet’suwet’en First Nations’ territories, and much of the population of the area is Aboriginal. The provincial court travels from Smithers to Hazelton approximately once per month. The Study Courts share important common features. All are provincial courts in the Province of British Columbia, presided over by provincially appointed judges with identical powers, sworn mandates, and responsibilities. All, moreover, apply the 3 Downtown Community Court, “Information for Accused Persons: How Community Court Works”. (Vancouver: Provincial Court of British Columbia, 2008), online: Criminal Justice Reform Secretariat <http://www.criminaljusticereform.gov.B.C..ca/en/shared/downloads/information_for_accused.pdf>. 4  S.C.R. 688. This decision is discussed above, at §1.5. 138 provisions of the Criminal Code to similar crimes. As will be seen, while some differences were observed between the kind of offences that each court actually heard, each forum is prospectively open to the same range of subject matters that all provincial criminal courts are empowered to judge. This includes almost every offence in the Criminal Code.5 Finally, although not all of the Study Courts are exclusively ‘plea-based’ (Hazelton Court, alone among the four, conducts trials) 47 of the 48 sentencing hearings I observed across the courts were conducted following the offender’s entering of a plea of guilt. As introduced above, each Study Court is also distinct from the others, in terms of its workflow, approach, and geographical location. This combination of commonality and difference frames the underlying research questions that this chapter sets out to address. First, as will be seen, each Study Court manifested a different profile in terms of the moral ordering that it was heard to practice. These profiles are individually described and discussed, but, in a concluding assessment, also synoptically considered. This enables an explicit enquiry into possible reasons for observed differences between the four Study Courts. Second, I proceed to suggest some insights these findings might hold (for these forums as well as plea and sentencing courts more generally) for the realization of the law’s mandate of communicative moral ordering, with particular regard to the engagement of offenders. 4.1.2 Parameters and Methods This chapter presents findings from data gathered exclusively by this researcher, through direct observation of proceedings in the Study Courts. The data are insufficient to support any statistically significant conclusions. The Observation Study is designed to offer useful insights, comparative and otherwise, into the findings gathered and analyzed in the four courts. Below, I lay out the study’s parameters and methods in this regard. 5 A small number of the most serious offences, most notably murder, are outside a provincial court’s jurisdiction. These offences, which can only be tried by a superior court in a province, are listed at s. 469 of the Criminal Code. 139 220.127.116.11 Data Collection I personally observed 48 sentencing hearings6, in each instance by attending at court with no prior knowledge of that day’s cases, and simply watching proceedings from the public gallery.7 My observations formed the raw data for this study, and I tried to ensure that such collection was divided as equally as possible across the four courts. However, due to each court’s scheduling idiosyncrasies, geography, and the fact that some simply dealt with significantly heavier caseloads than others, the 48 hearings I observed were unevenly distributed across the Study Courts: I observed 22 conducted in Court 102, twelve at Community Court, ten at First Nations Court, and four in Hazelton. For these same reasons, the length of my observation of each court was also unevenly distributed: I spent seven hours across five visits in Court 102, eleven hours across seven visits at Community Court, 20 hours across six visits at First Nations Court, and four hours across a single two-day sitting of Hazelton’s circuit court. All observations were conducted between October, 2009 and April, 2010. I was unable to audio-record the hearings themselves,8 and obtaining transcripts of the court’s record of these proceedings was prohibitively expensive and time-consuming. Adopting the role of amateur stenographer, I made contemporaneous notes of what I considered to be presumptively moral speech, by any and all potential voices, in the sentencing hearings I observed. I also collected data on such criteria as an offender’s actual or apparent age, gender, Aboriginal status (when explicitly raised) custodial status, legal representation, plea, offence(s) charged, and the sentence each received. I took note of who attended at court, such as victims, friends or family of offenders, or other 6 While most of the hearings I observed also comprised the plea itself, in other cases there was an adjournment between plea and sentence. I included in my data set those proceedings where I observed the sentencing itself, but did not include occasions where I was only able to observe the entering of a plea. 7 As is further discussed below, some of the Study Courts dealt with other procedural and preliminary matters as well as sentencing hearings, with little or no notice of how a given court’s business would be scheduled or heard. I therefore sat through a considerable amount of court time that was not directly relevant to the Observation Study, but have excluded these observations from the findings I report here. 8 I did not seek or obtain leave from the Study Courts to record proceedings, due to my presumption that audio-recording was generally prohibited. Interestingly, I could not locate a specific statutory rule or direction that prohibits this practice in B.C. An emailed request to the Office of the Chief Judge of the Provincial Court for further information on this matter was not responded to. 140 community members, to the extent that this was apparent to me. Finally, I noted the approximate length of time of each hearing. After each observation session, I transcribed my handwritten notes, including the speech that I was able to record during the hearings, as well as adding and expanding contextual details from memory. 18.104.22.168 Data Analysis I conducted both qualitative and numerical assessments upon the data I collected. The former, which can be defined as simply “non-numerical” legal research,9 is intended to provide a narrative account of the proceedings I observed, as well as my perception of the depth, influence, and meaning of the expressions that I heard therein. The numerical data provide a ready sense of some key similarities and differences between the sentencing hearings conducted in each Study Court, and the moral speech I heard therein. Narrative and numerical data are presented in an integrated manner, with the intention that each will illuminate the other. This chapter’s qualitative assessment, however, is more important to the study’s usefulness and conclusions than a purely numerical analysis.10 4.1.3 Defining “Moral Speech” For this empirical study to usefully contribute to my overall investigation of criminal law’s concern for moral ordering, the concept of moral speech must be defined as clearly as possible. Returning to the proposition advanced in Chapter One, that a focus on moral questions is of central importance to the discernment of sentences, I break moral speech down into two distinct sub-categories. Both of these categories refer specifically back to the particular conduct for which an offender has been convicted. The first, incorporating what I call issues of “moral proportionality”, captures claims and comments directed to the gravity of the offence and/or the degree of responsibility of 9 Ian Dobinson and Francis Johns, “Qualitative Legal Research”, in Research Methods for Law, Mike McConville and Wing Hong Chui, eds. (Edinburgh: Edinburgh University Press, 2007) 16 at 17. 10 The tables of numerical data that I compiled in the course of my observations are reproduced in Appendix ‘E’. 141 the offender.11 Moral proportionality, according to s. 718.1 of the Criminal Code, is the fundamental principle driving the apportionment of ‘just’ criminal sentences in Canada. The second captures those representations relating to the offender’s avowed12 normative orientation towards the conduct for which they have been criminally convicted, or what I refer to as their “moral mind”. The moral mind is usually articulated as statements of remorse, but may also, at least in principle, include defiance, rejection, or indifference. I advance this definition of moral speech in sentencing hearings, not because it encompasses an exhaustive understanding of morality and its relationship with judicial decision-making, but because it focuses upon two specific, normatively significant areas of a criminal court’s function. One, which corresponds to the sub-category of moral proportionality, regards how the ‘wrongness’ of a particular offence is judicially discerned and communicated in open court. This is important, in my view, both to a court’s legal and expressive duties: as a fundamental principle, moral proportionality must be somehow reflected in the sentence itself. Further, as a publicly accessible and responsible forum, the establishment of this proportionality should be audible to this public constituency, as well as, of course, to a proceeding’s actual participants. In order to assess this quality’s audibility on these terms, I situated myself as a passive listener of moral proportionality, as it was expressed in a given hearing’s proceedings. The other aspect of moral speech, which corresponds to the sub-category of moral mind, is often conveyed in a more intimately expressive way than moral proportionality. It is also more ambiguously related to a court’s discernment of an appropriate sentence. 11 I use the term ‘offender’ throughout this chapter to refer to persons who are being sentenced, although I also follow the terminology employed in my study courts in sometimes referring to these persons as ‘client’, ‘defendant’, or ‘accused’. 12 Much like any sentencing judge, I was not able to conclusively determine if any expressed representation of an offender’s moral mind actually conveyed their ‘true’ orientation. As some of the participants of Chapter Three’s Interview Study aptly noted, a person’s normative r
UBC Theses and Dissertations
The ground beneath our speech : moral ordering in plea-based criminal justice Owen, Simon Matthew 2010
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