FAQ

Answers to the Provincial Court's Most Frequently Asked Questions:
Can I pick the judge who will hear my trial or change the judge if I don't want him or her to hear my case?
Do I have to attend court if I am subject to a subpoena?
I want an adjournment. Should I wait until my next court date?
My friend had a hearing in his case within three months, but I just received a hearing date for my own case that is eight months from now. Why the discrepancy?
I am involved in a case as a litigant in Provincial Court. Do I have to retain a lawyer?
If I do not have a lawyer, can the judge help me out?
Can I sit in and observe any proceedings in Provincial Court?
How do I apply for a position within the Provincial Court?
Can a Judicial Justice perform marriage ceremonies?

The following FAQ's originated from inquiries from various members of the public:
Conditional Discharges
Sentences for Convicted Car Thieves
Sentencing on Marijuana Grow Operations and Conditional Sentence Orders
Sentencing
Minimum Sentences
Sentencing for Crimes Against the Person and Property Crimes
Consecutive and Concurrent Sentences
Measuring Sentencing Practices of Judges
Sentencing and Closures of Correctional Institutions
Length of Time for Presentations in Court
Victim Impact Statements
Publicizing Names of Convicted Offenders
Jurisdiction of British Columbia Courts
Prosecutors and Defence Counsel as Judges
Public Outreach by the Court
Social Context Education for Judges
Jurisdiction of Provincial Court and BC Supreme Court in Criminal Matters
Judges as Members of the Community
Mistrials
Credit for Pretrial Custody
Marijuana Laws
Parole Terms
DNA Databank and Mandatory Courses for Offenders
Function of the Chief Judge
Polygraph Tests
The Little Prince
Religion and the Courts

Q: Can I pick the judge who will hear my trial or change the judge if I don't want him or her to hear my case?

To ensure fairness in all trials, the Provincial Court exclusively controls the assignment of judges to cases. If a litigant genuinely believes that a particular judge assigned to hear his or her case would not be able to do so impartially, the litigant may apply to that judge for an order disqualifying that judge from hearing the case on the grounds of a reasonable apprehension of bias. These applications are made in open court, and are on the record. The litigant making the application must be prepared to provide reasons why the judge should not hear his or her case; the other party will have an opportunity to make submissions as well.

Q: Do I have to attend court if I am subject to a subpoena?

A subpoena is a court order compelling a person to attend court to give evidence. If you do not attend, you may be arrested. If you do not think that you have any material evidence to give, or believe that the issuance of the subpoena is an abuse of process, an application may be made to the court to set it aside.

Q: I want an adjournment. Should I wait until my next court date?

Adjournments are not automatic. You must apply for them, and the Court has authority to grant or deny your application. It is important not to wait until the last minute to apply for an adjournment. The longer you wait, the greater the likelihood that other parties or persons will be inconvenienced or put to extra expense, which is a factor weighing against your application.

Q: My friend had a hearing in his case within three months, but I just received a hearing date for my own case that is eight months from now. Why the discrepancy?

The time required to obtain a hearing in Provincial Court depends on a substantial number of factors, including: the anticipated length of the hearing; the volume of cases in a particular court location relative to the number of judges and courtrooms available to hear them; the nature of the matter; time-related legal requirements; and the availability of lawyers and witnesses. In scheduling cases, the Court recognizes that every case deserves to be heard in as timely a manner as possible, but the Court does give priority to urgent cases, such as child protection matters or serious criminal cases.

Q: I am involved in a case as a litigant in Provincial Court. Do I have to retain a lawyer?

You can act for yourself in any matter in Provincial Court; however, depending on the circumstances of your case, it may be a good idea to either have a lawyer represent you, or consult with a lawyer before you appear in court. This is especially important if your matter is very serious or complicated. Many litigants in Provincial Court do a good job on their own; people who are organized and have put a lot of work into researching and preparing their case do better than those who do not.

Q: If I do not have a lawyer, can the judge help me out?

Judges are not substitute lawyers. Judges are, however, responsible for ensuring that the proceedings are fair, and to that end, they may give an unrepresented person guidance or direction on procedural and other matters. This is a very limited kind of guidance because the judge must remain impartial and cannot favour one side over another. Judges cannot give you legal advice, present your case for you, or help you even the score with the other side.

Q: Can I sit in and observe any proceedings in Provincial Court?

Trials and most other hearings in Provincial Court are open and public proceedings, and you are welcome to respectfully observe and listen to court proceedings. In a few special circumstances, hearings in Provincial Court may be closed following a judge's order. Proceedings that focus on mediation and settlement, such as settlement conferences and family case conferences, are generally limited to the parties and their lawyers.

Q: How do I apply for a position within the Provincial Court?

If you are interested in applying for a staff position within the provincial court, please check the BC Government Job Postings. If you are applying to become a Judge or Judicial Justice, please refer to the Appointment Process described on our website.

Q: Can a Judicial Justice perform marriage ceremonies?

Judicial Justices in British Columbia do not have the authority to perform marriage ceremonies. You need to have a marriage commission to do that. For information on marriage commissions, please visit theDepartment of Vital Statistics website.

Q: Why do sentences for wealthy or influential persons seem less severe than those for others? Are conditional discharges appropriate for serious property crimes?

As you will be aware, the site provides general information about the Provincial Court and BC justice system, and it is not open to me to comment on individual cases. Any comments provided are for information only and cannot be used as legal advice or authority in court or other legal proceedings. I can provide some comments on sentencing in general, and will offer the initial opinion that a survey of the hundreds of sentencing cases dealt with in the courts every year would not likely disclose a tendency to sentence more leniently based upon offenders' status in life, but may reflect their previous contributions to the community and prior character.

I will outline some of the principles involved in the granting of conditional discharges, and in sentencing, for instance, in a case of theft over $5000. That offence is one that carries a maximum sentence of 10 years incarceration. (Maximum sentences are by law reserved for cases that are among the worst cases committed by offenders who are among the worst offenders).
In deciding the appropriate sentence, a Court would be guided by the sentencing principles in the Criminal Code and applicable case law. Those principles require the judge to consider the circumstances of the offence and the offender, any aggravating or mitigating circumstances, other similar cases, and to consider what sentence best achieves the objectives of denunciation, deterrence, protection of the public, rehabilitation, reparation, responsibility, and respect for the law.

The balancing of these factors means that a sentence is not dictated by any one of them at the expense of the others. For example, a judge must balance the need to rehabilitate an offender with the need to deter him or her, and others, from committing offences where appropriate. In every sentencing decision the Judge has a discretion, but that discretion may only be used within the limits set by Parliament. Parliament makes the law. Judges apply the law with all of the above factors in mind.

By law, conditional discharges may be granted on offences with a maximum penalty of 10 years imprisonment. It is not uncommon for a person to receive a discharge when they are previously of good character, have made a positive contribution to society, and where the offence is considered to be out of character for them. The law requires that it be in the best interests of the offender, and not contrary to the public interest, for the offender not to receive a criminal record. Many theft cases result in conditional discharges, even in cases of theft over $5000, particularly if there are compassionate circumstances or psychological factors.

The conditions on a conditional discharge may be identical to those on a suspended sentence or a conditional sentence of imprisonment. While a person who is granted a conditional discharge does not have a criminal conviction on their record, the existence of the discharge could be placed before the Court if there were future convictions. If people continue to commit criminal offences, they often receive successively longer jail sentences, within the limits that the law prescribes. The law also provides for indeterminate (indefinite) sentences for certain persons convicted of serious personal injury offences, in certain circumstances. There is also provision for minimum sentencing and long term supervision of long-term offenders.

Sentencing is an inexact process, but in our democratic society, we have adopted principles of fairness and balance in the treatment of offenders that may result in sentences less severe than would be the case if the sentence were dictated by only one factor.

It seems a common perception among members of the public that leniency is a sentencing principle, and that sentences in Canada are low compared to other countries. Leniency is not one of the principles outlined in the Criminal Code or case law. The process calls for balance and fairness. BC courts impose jail sentences as frequently as courts in other provinces, and Canada's rate of imprisonment and sentence lengths are similar to those in most other democratic countries. Canada's crime rate is also low compared to other countries, and is, for the most part, falling.

Countries with comparatively high rates of incarceration and longer sentences, like the U.S., do not have correspondingly low crime rates. In fact, countries in Europe with much lower imprisonment rates (per convicted offender) also have much lower crime rates. That suggests that those with higher crime rates and higher relative rates of imprisonment are not achieving crime deterrence. There are many studies and working groups currently looking at earlier and better solutions to the kinds of societal problems that result in higher crime rates. For instance, the Vancouver Street Crime Working Group is currently looking at the issue of repeat offenders who commit property and quality of life crimes in Vancouver. That group's website address is: www.bcjusticereview.org/working_groups/street_crime/street_crime.asp.

However, the issues of sentencing policy, minimum sentences, and overall imprisonment rates are not issues that judges struggle with on a daily basis. By law judges are to assess the case before them based upon the applicable law and the individual circumstances of the case and the offender, in a way consistent with the treatment of other similar cases. Judges engage in the balancing process described above, and sentences imposed all criminal cases are the result of that balancing process; i.e. the sentence the judge considers will best achieve the many goals listed above within the parameters of the applicable laws. Sentences which in the view of the Crown (who represents the public in the court process) do not adequately address the requisite factors may be appealed. It may interest you to know that very few sentencing cases are appealed, and even fewer are reversed on appeal.

It may also be of some interest that in the United Kingdom, where the law and range of sentences is similar to that in Canada, a public panel assists in an advisory capacity regarding sentencing http://sentencingcouncil.judiciary.gov.uk/. That site has examples of focus groups faced with fact patterns of actual cases. These groups tend to guess that the judge sentenced more leniently than actually occurred, and tend themselves to suggest sentences lower than those actually imposed. One could conclude from this that often the public perception of sentencing as "light" does not reflect the reality. One reason for this may be that media accounts of court proceedings cannot fully capture all of the factors that a court must consider in imposing sentence.

You have expressed concerns regarding the sentence imposed in a particular recent high-profile theft case. For your information, the reasons in the case you mention are available on the Provincial Court's website at this link.

As your email relates generally to issues of sentencing in the criminal justice system, you may also be interested to know that the BC Courts’ website contains a Legal Compendium providing general information about the legal system. The portion of the Compendium dealing with sentencing can be found at the following link: www.courts.gov.bc.ca/

Q: I am so appalled by the sentences which have been handed out to the top l0 car thieves [as reported on Global TV, January 24, 2005]. Why aren't the courts doing their job and putting these kinds of offenders in jail?

I cannot comment upon sentences imposed in individual cases; however, in reporting matters of this kind the media often do not make clear the actual sentence that was imposed or the nature of the offence that was involved. I can say through my experience as a sitting judge of the Court, the sentence most commonly imposed on an individual with a prior record convicted of car theft would be one of incarceration. Frequently, such individuals are jailed before they are convicted, and they may spend a significant period of time in pre-trial custody. Pre-trial custody is often overlooked by the media, who focus on the post-sentence period of incarceration. Television, radio and even print media do not make it clear that the pre-trial custody time is included in the jail sentence. Sometimes the sentence is “one day” or "time served," which reflects the fact that the offender has fully served the appropriate jail time before conviction. There is a more detailed explanation regarding the way in which pre-trial custody is accounted for in the sentencing process on the website at the following link: Credit for Pretrial Custody.

News reports also sometimes do not make it clear what offence the offender is convicted of. Although auto theft may have been the original charge, sometimes a conviction on another (lesser) charge is initiated or agreed to by the prosecutor, based upon issues with proof of the original charge. In those cases, the offender may be convicted of a lesser criminal offence or even a Motor Vehicle Act offence such as driving without due care and attention. In such circumstances, a fine may be imposed. Sometimes, a Motor Vehicle Act offence accompanies Criminal Code offences, and a minimum fine is imposed under the Motor Vehicle Act for that offence, along with a heavier sentence on other offences.

Of the hundreds of sentences imposed in the courts every day, each one is based upon the judge's full consideration of the relevant legal principles and an assessment of the appropriate range of sentence for the applicable offence. There are a number of items on the website dealing with how judges impose sentences and the legal principles that are involved , which you may peruse at: FAQ's.

As for whether the public may be confident that judges will do their jobs, every judge of the Provincial Court takes their duty to the public extremely seriously. The Court is concerned that some members of the public do not have confidence in the justice system. The judges are making an effort to provide more and better information about the Court and the justice system through their recent public outreach campaign, including the Ask the Chief Judge site to which you have written. I am confident myself that the more people know about what happens in the courts, the more confidence they will have in the system.

Many members of the public rely primarily on the media for their information about the court system. Years ago the courts in Britain relied upon newspapers to report cases for use as precedents. They used to publish the full judgment word for word, and lawyers and judges used those reports as legal authority. This was a completely different role for reporters than they play in current times. They felt a duty to the public to report cases fully and accurately.

Reporters today may tell you that their primary duty is now to the publisher. In today's times media coverage of court cases has been reduced to quick headlines or 10-second sound bites. It is less likely that you will hear a full account of the facts of the case and the principles and legal authorities that went into the decision. Cases do not seem to be covered unless there is some controversy, and even if there is none, it is sometimes made to sound as if there is.

"Justice occurred in 100’s of cases today" is not a story. You do not hear about the almost 100,000 unremarkable criminal cases dealt with annually by the courts. What you hear instead is that the system is broken and judges are letting all the criminals go. I have been involved in the criminal justice system for over 20 years, and I can tell you it is not broken. It is a system that works, and works well. The rule of law applies and is applied in the courts on a daily basis. Not only are disputes between citizens dealt with in a forum in which parties have equal rights to a fair trial, but those between the state and citizens have a forum as well, in which the accused has a right to fair trial and full answer and defence, and the state is put to the test of proof beyond a reasonable doubt. Cases are decided in a predictable fashion, based on the evidence and in accordance with cases that happened before, not the whim of the presiding judge, or the need to pander to votes or to the ebb and flow of public opinion based on 10-second sound bites.

I might just add that, for cases where the result is clearly wrong, there is an appeal system which entails scrutiny of the trial judge’s decision, in light of the appropriate legal principles, by an appellate judge or judges, in some cases at several levels. A wrongful acquittal or a sentencing decision that is considered too lenient may be appealed by the Crown (prosecutor), who represents the public in the court process, just as the accused may appeal conviction or sentence. The fact that only a miniscule number of the total criminal cases dealt with by the courts are appealed, and that an even smaller number are overturned on appeal, is indicative of the fact that, by far, most court decisions are accepted as appropriate and correct by the Crown (acting on behalf of the public) and by the appellate courts. Those are the thousands that you do not hear about in the media. You have also made the point that judges have in some cases "ignored" the provisions of the Criminal Code in failing to impose the statutory maximum (or significantly harsher) sentences. In fact, if judges were to base their sentencing decisions exclusively on the suggested maximum sentence in the Criminal Code, rather than the many factors outlined in my previous email to you and which you will now find fully explained on the Ask the Chief Judge website, their decisions would most certainly be reversed on appeal.

I often suggest to people that they stop by and watch the criminal courts in operation. The courts are almost always open to the public, and court watchers are most welcome to attend. A listing of the Provincial Court sites near you may be obtained from the Court’s website, at www.provincialcourt.bc.ca. There you will also find a database containing many of the Provincial Court's decisions, and links to the Supreme and Court of Appeal decisions. You might find a review of those decisions interesting, as it would provide a broader perspective of what courts do on a daily basis than what you read about or see on the news. There are also some posted questions and answers on the Ask the Chief Judge site that you may find informative.
After a review of these various sources of information you will be able to confidently conclude that the judges of BC courts conscientiously and competently "do their jobs" by upholding the law every day.

Q: A recent article in the Vancouver Sun noted that only one in seven persons sentenced on marijuana grow operations received a jail sentence and that in Vancouver, only one in 13 was jailed. Why don't more people convicted of marijuana grow operations go to jail? And why don't judges respond to the community's views on sentencing?

First of all, it should be noted that the statistics referred to in the newspaper article you read measured jail sentences separately from conditional sentence orders. As a matter of law, conditional sentence orders are considered by the Criminal Code to be sentences of imprisonment, although they are to be served in the community, i.e. at home, rather than behind bars. These sentences generally contain significant restrictions on the liberty of the offender, sometimes more restrictive or onerous than the offender might experience by simply doing a jail sentence. Conditional sentences tend to be longer than jail sentences for equivalent offences, and they frequently require the offender to do something to "put back" into the community, such as community work service, restitution, apologies, public speaking, and other kinds of reparation. The also frequently contain rehabilitative terms that require the offender to participate in programs he or she might not be required to do while in prison. The legal approach is that these sentences are considered to be penal in nature and to be a category of imprisonment. As I understand the statistics, when conditional sentences are included, the overall rate of imprisonment for marijuana grow operations is considerably higher than that reported in the newspaper, and there may be fewer inconsistencies between regions in the province.

In sentencing on any offence, a judge is bound by the principles set out in the Criminal Code and relevant case law. Parliament has dictated that imprisonment of any kind is a last resort, so there must be aggravating features or a criminal history before a sentence of imprisonment is even considered. It is up to the prosecutor to prove through evidence that there are aggravating factors in a given case, so in a grow-op case, things like links to organized crime, prevalence of the offence in the community, prior offences, profit, damage to property, must be proven in court by evidence. Judges cannot assume these factors exist.
If it is established to the Court by the Crown that the offence is one for which a sentence of imprisonment would be appropriate, the Court is then directed by law to consider whether the sentence may be served in the community, i.e. conditionally. The Criminal Code states that this may occur where doing so does not endanger the safety of the community, and is consistent with the fundamental principles of sentence set out in the Criminal Code. Those principles include the fundamental purpose of contributing, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions. More about the principles of sentencing may be found in the Question and Answer section of the website, under Sentencing.

What this means, essentially, is that for a person convicted of a marijuana grow operation who does not have prior offences and does not pose a risk of further offending, a conditional sentence order may well be the appropriate disposition in law. It is important to point out as well that, in imposing sentence, judges are required by law to be consistent with other decisions in similar cases. If the range of cases dealing with a particular offence sets a conditional sentence at the top end of the range, a judge would be wrong to decide that an offender who otherwise met the criteria for a conditional sentence should instead be incarcerated. Such a decision, if outside the range set by similar cases, would be reversed on appeal. Similarly a sentence that is below the range set by relevant cases could be appealed by the Crown and would likely be increased. Hence, as well, if sentences in a particular region were perceived by the Crown to be significantly different from those in other regions, and this difference was not justified by factors relevant to that community, such sentences could be appealed, and/or the Crown could seek to show in future cases, through a survey of relevant cases presented to the Court, that the range should be higher.

But what is to happen if the media, community or public are of the view that sentences are too lenient for a particular type of offence? Assuming those sentences are within the range dictated by the law and similar cases (and therefore not appealable), a change in sentencing practices would require legislative reform. It is important to remember as well that sometimes, public reaction or outcry is based upon media accounts of the case or of the factors that the media view as relevant to its outcome. These may or may not have been factors fully proven before the Court or legally relevant to the decision. We also know that the media are often unable to fully capture all of the facts of a case, legal principles or relevant factors that may go into the ultimate decision. Indeed, we would be naïve to assume that in the space of a column or length of a news broadcast they would ever be able to do so.

Reporting the type of charge and sentence alone do not tell you about any of the aggravating or mitigating factors, the background of the offender, the legal principles that apply, or indeed, the sentencing guidelines that may have been applicable. And few of us would want to see ourselves tried in the media and sentenced based upon public opinion (as reported in the media) rather than based upon the full range of factors the Court is required to consider. It is very important to our fair and independent system of justice that courts be permitted to operate fully, and that those charged not be judged by others who might care to do so, based only upon a few sensational facts or inflammatory statements by observers, without the dispassionate eye of an independent state-appointed jurist schooled in the applicable laws and legal principles. And it is equally important that outcomes be predictable, based on the evidence and on prior cases, not dependent upon the demands of the public in a particular high profile case or category of cases.

Q: One writer indicated he had contempt for the judicial system in this Province which he believes favours the criminal over the victim. As examples of injustices he refers to a sentence in a particular case which he thought was a "slap on the wrist". He also suggested police are exhausted from "the limitations to [their] job". He suggested there was a link between the country's immigration policies and crime. He wishes to know where he can "lodge [his] concern and contempt". Other writers have also raised questions concerning the sentencing process and expressing concern that judges are too lenient, or not upholding the law in specific cases.

I acknowledge receipt of your email to "Ask the Chief Judge" in which you have expressed concerns about the justice system. Specifically, you have raised the issues of sentencing, policing, and immigration. You also asked where else you can direct your concerns. I can tell you about the sentencing process undertaken by judges and the laws applicable to that process.

Concerns about government policies and legislation might be directed to the Minister of Justice. Concerns or questions about policing might be directed to the B.C. Solicitor General. Questions regarding immigration may be directed to Citizenship and Immigration Canada.

While I cannot comment on any specific cases, I can provide you with some information about sentencing principles. I would first like to point out that judges are members of society and generally live in the communities in which they preside. Many of them have also been victims of crime along with their neighbours. In this sense it cannot be assumed that judges are somehow removed from the experiences and concerns of our society, nor that they have any inherent motivation that is somehow different from or at odds with those of other members of the community. Judges not only want to see justice done, they are required to impose it and to be governed by the rule of law. They also care passionately about justice and about performing their duties conscientiously, fairly and responsibly.

I will outline some of the principles applicable to sentencing of persons convicted of criminal offences. The Criminal Code of Canada and other criminal legislation provides for maximum sentences ranging from six months to life imprisonment depending upon the nature of the offence. Many charges proceed "summarily," based upon a decision by the Crown (prosecutor), which means the maximum jail sentence would be 6 months, or in some cases, 18 months in jail. Conditional sentence orders of imprisonment, fines, suspended sentences, conditional and absolute discharges are also available sentencing options. On many of these, conditions may be imposed, including community work service, restitution, counseling and other measures designed to achieve the goals of sentencing.

In deciding the appropriate sentence, a Court is governed by the sentencing principles set out in Part XXIII of the Criminal Code, and by applicable case law. Those principles require the judge to consider the circumstances of the offence and the offender, any aggravating or mitigating circumstances, other similar previous cases, and to decide what sentence best achieves the objectives of denunciation, deterrence, protection of the public, rehabilitation, reparation, responsibility, and respect for the law. There is also a provision that jail is a last resort. The balancing of these factors means that a sentence is not dictated by any one of them at the expense of the others. For example, a judge must balance the need to rehabilitate an offender with the need to deter him and others from committing offences where appropriate. In every sentencing decision the Judge has a discretion, but that discretion may only be used within the limits set by Parliament. Parliament makes the law. Judges apply the law with all of the above factors in mind.

The law says maximum sentences must be reserved for among the worst cases and among the worst offenders. If people continue to commit criminal offences, they often receive successively longer jail sentences, within the limits that the law prescribes. The law also provides for indeterminate (indefinite) sentences for certain persons convicted of serious personal injury offences, in certain circumstances. There is also provision for minimum sentencing and long term supervision of long-term offenders. (see Part XXIV of the Criminal Code).

Countries with comparatively high rates of incarceration and longer sentences, like the U.S., do not have correspondingly low crime rates. In fact, countries in Europe with much lower imprisonment rates (per convicted offender) also have much lower crime rates. That suggests that those with higher crime rates and higher relative rates of imprisonment are not achieving crime deterrence. There are many studies and working groups currently looking at earlier and better solutions to the kinds of societal problems that result in higher crime rates. For instance, the Vancouver Street Crime Working Group is currently looking at the issue of repeat offenders who commit property and quality of life crimes in Vancouver. That group's website address is:www.bcjusticereview.org/working_groups/street_crime/street_crime.asp.

However, the issues of sentencing policy, minimum sentences, and overall imprisonment rates are not issues that judges struggle with on a daily basis. By law, judges are to assess the case before them based upon the applicable law and the individual circumstances of the case and the offender, in a way consistent with the treatment of other similar cases. Judges engage in the balancing process described above, and sentences imposed all criminal cases are the result of that balancing process; i.e. the sentence the judge considers will best achieve the many goals listed above within the parameters of the applicable laws. Sentences which in the view of the Crown (who represents the public in the court process) do not adequately address the requisite factors may be appealed. It may interest you to know that very few sentencing cases are appealed, and even fewer are reversed on appeal.

It may also be of some interest that in the United Kingdom, where the law and range of sentences is similar to that in Canada, a public panel assists in an advisory capacity regarding sentencing www.sentencing-guidelines.gov.uk/saphome.htm. That site has examples of focus groups faced with fact patterns of actual cases. These groups tend to guess that the judge sentenced more leniently than actually occurred, and tend themselves to suggest sentences lower than those actually imposed. One could conclude from this that often the public perception of sentencing as "light" does not reflect the reality. One reason for this may be that media accounts of court proceedings cannot fully capture all of the factors that a court must consider in imposing sentence.

If you wish to obtain more information about the justice system, the BC Courts' website contains a Legal Compendium at: Legal Compendium. The portion dealing with sentencing can be found at:www.courts.gov.bc.ca.

Q: What might be some of the problems with a system that offered minimum sentences for criminal activities? I feel this might bring some national consistency to the system. Also, why not adopt the american system where the judge gives a very limited address to the jury and leaves the jury to make a judgment?

Yours is an interesting inquiry. We did receive a number of questions about the sentencing process, and there is now an item posted on the site which deals with some commonly asked questions about sentencing, which you may find interesting.

You have asked specifically about what problems might be posed by minimum sentences. The Criminal Code does have a number of prescribed minimum sentences which include, for instance, minimum fines for impaired driving offences and minimum terms of imprisonment for repeat impaired driving offences, minimum jail sentences for the use of firearms in the commission of offences, minimum periods of parole ineligibility for convicted murderers, etc.

As for what problems might be caused if there were more, some commentators hold the opinion that minimum sentences impose potential hardships on offenders who would not otherwise be subject to imprisonment and for whom there are extenuating circumstances in the commission of the offence. Years ago there was a 7-year minimum sentence in Canada for importing narcotics. It was ruled unconstitutional by the Supreme Court of Canada. In R. v. Smith, [1987] 1 S.C.R 1045, the former Chief Justice, A. Lamer, commented:

Those who import and market hard drugs for lucre are responsible for the gradual but inexorable degeneration of many of their fellow human beings as a result of their becoming drug addicts. The direct cause of the hardship cast upon their victims and their families, these importers must also be made to bear their fair share of the guilt for the innumerable serious crimes of all sorts committed by addicts in order to feed their demand for drugs. Such persons, with few exceptions (as an example, the guilt of addicts who import not only to meet but also to finance their needs is not necessarily the same in degree as that of cold-blooded non-users), should, upon conviction, in my respectful view, be sentenced to and actually serve long periods of penal servitude. However, a judge who would sentence to seven years in a penitentiary a young person who, while driving back into Canada from a winter break in the U.S.A., is caught with only one, indeed, let's postulate, his or her first "joint of grass", would certainly be considered by most Canadians to be a cruel and, all would hope, a very unusual judge.

Yet, there is a law in Canada, s. 5(2) of the Narcotic Control Act, R.S.C. 1970, c. N-1, that gives no judge in the land any other choice.

Canada's legal system generally leaves to the Courts the task of balancing the many factors involved in arriving at an appropriate sentence for an individual offender. The question of whether there should be more minimum sentences is a matter of law reform. Making laws is a function of the legislature, and suggestions for law reform may be directed to Members of Parliament. Judges apply the laws that are created by legislation and by prior cases, they do not make or change laws. Indeed they are governed by the rule of law, and they function separately from the other two branches of government, the legislative and the executive. This separation, or independence, is one of the true strengths of our democratic system of government. Judges may be trusted to apply the laws fairly and without bias to each party before them, even when one of those parties is another branch of government, as in criminal cases where the Crown counsel represents the Attorney General or Minister of Justice. For this reason it is not for judges to be political activists or law reformists, or indeed to comment upon the state of the law, except through their decisions.

I cannot respond to your question about the jury system as the Provincial Court does not conduct jury trials, and again this is really a matter of law reform as well. There was recently an interesting article in the Vancouver Sun comparing the Canadian system with that in the US, in which was discussed the value of standard jury charges and some of the perceived flaws in the Canadian system; however, it would not be for me or other judges to comment. If you believe the jury system should be changed, this is again a matter that you could address to your MP.

Q: Why are sentences for property crimes harsher than those for crimes against the person?

You have asked a question about sentencing; specifically, why sentences for property crimes are harsher than those for crimes against the person. While it is not open to me as Chief Judge to comment on specific cases or express an opinion on the state of the law, I can tell you about some of the principles involved in sentencing and how judges apply them. The Criminal Code, Part VIII, provides for maximum sentences ranging from six months to life imprisonment for offences against the person. Part IX deals with Offences against Rights of Property (and includes robbery) and has a similar range of maximum sentences. Many charges are proceeded with "summarily" by the Crown, which means the maximum sentence would be 6 months, or in some cases, 18 months in jail. There is an array of available sentences including discharges, suspended sentences, fines, probation, conditional sentence orders, and of course, jail.

In deciding the appropriate sentence, a Court would be governed by sentencing principles set out in Part XXIII of the Criminal Code and by applicable case law. Those principles require the judge to consider the circumstances of the offence and the offender, any aggravating or mitigating circumstances, other similar previous cases, and to decide what sentence best achieves the objectives of denunciation, deterrence, protection of the public, rehabilitation, reparation, responsibility, and respect for the law. There is also a provision that jail is a last resort.

The balancing of those factors means that a sentence is not dictated by any one of them at the expense of the others. For example, a judge must balance the need to rehabilitate an offender with the need to deter him and others from committing offences where appropriate. The law says maximum sentences must be reserved for cases that are among the worst cases and for offenders that are among the worst offenders. If people continue to commit criminal offences, they often receive successively longer jail sentences, within the limits that the law prescribes. The law also provides for indeterminate (indefinite) sentences for certain persons convicted of serious personal injury offences in certain circumstances (see Part XXIV of the Criminal Code).

Sentencing is an inexact process, but in our democratic society, we have adopted principles of fairness and balance in the treatment of offenders that may result in sentences different than would be the case if the sentence were dictated by only one factor.

The BC Courts’ website contains a Legal Compendium providing more information about sentencing at the following link:www.courts.gov.bc.ca

As for your specific question, whether on balance property offences are dealt with more harshly than offences of violence, it would not be for me to venture an opinion, except to say that the use of violence in any offence is an aggravating factor that could result in a higher sentence than would otherwise be the case. I would suggest, however, that you may wish to view a selection of decided cases either through the BC Courts or Provincial Court judgment databases, or through the public source, CanLii, and decide for yourself.

Q: My question has to do with sentencing in a case of multiple criminal charges. Who decides whether sentences are to be served consecutively or concurrently?

You have asked about the imposition of consecutive and concurrent sentences. Consecutive sentences may be imposed in certain circumstances outlined in the Criminal Code, section 718.3(4). Generally the judge decides on whether a sentence will be consecutive or concurrent, though there are some situations where consecutive sentencing is mandatory. That decision is made based the application of the principle of totality; that the total of the sentences imposed must not exceed the overall culpability of the offender.

Further information on sentencing may be found on the BC Courts website at: www.courts.gov.bc.ca/ in the section on sentencing. There will also be some sample Qs & As on the Provincial Court website shortly.

Q: I am enquiring about protocols regarding judges' abilities to defend sentencing- other than contained in their Reasons for Judgement for specific cases. In the media, there are often complaints that a particular judge may be 'soft on crime'.

Are there options to explain sentencing guidelines, and to counter what can become common (mis)perception? In more general terms, what measures are taken to evaluate judges' sentencing records, to determine if there is in fact a pattern of sentencing which would correctly earn a particular judge a reputation for being 'tough' or 'soft'? If so, is this analysis public, and what remedial measures do you take to get judges to conform to norms.
I guess one measure is the Appellate Court record of sentencing changes, but I am wondering whether there are internal procedures.

You have correctly surmised that one aspect of "measuring" judges' adherence to sentencing principles is the appeal process. I can tell you that there is no ongoing tally of individual judges' sentencing practices other than what might be disclosed by a survey of their reported cases on a Court's website, or through CanLii.

While media watchdogs or special interest groups may take an interest in trends disclosed by a particular judge's decisions, the range of factors that go into the process of sentencing and the individual nature of each case should mean that most judges sentence within the framework set out in the law as dictated by the facts of a case. I would like to think that in this sense the system is somewhat self-regulating, and that through the appeal process, significant or dramatic variation from acceptable norms and principles would be addressed.

To keep a tally in any other fashion would mean that a system other than the legal system would be involved in assessing the adequacy of sentences imposed by a particular judge. The legal system requires an appellate court to compare similar cases dealing with similar offenders in similar circumstances, to assess whether a sentence is fit or not. To create an assessment of performance outside the appellate regime or justice system in order to put pressure on a judge for his or her "tendencies" as perceived by those who assessed them would in my view interfere with the judge's independence, as the assessment process might be subject to the whim of the group that created it, who may well be unaware of the framework dictated by the law and the applicable prior cases.

Judges whose decisions appear to be outside accepted legal principles will likely experience reversals on appeal. Judges do make mistakes; some may appear more flagrant than others. The appeal process in Canada is designed to catch those mistakes. Of course, if a judge were to continually defy the rule of law, ignore repeated appeals, or refuse to adhere to applicable legal principles, the issue could be one of competence or fitness for office, and in an extreme case could be grounds for removal. In my experience this kind of situation is virtually unheard of. The complaints and disciplinary process for Provincial Court Judges is set out on the website at www.provincialcourt.bc.ca/complaints-and-appeals/complaint-process.

One other question arises from your inquiry, and that is the extent to which public furor or outcry ought to dictate a judge's response in a particular case. Again, the issue of judicial independence arises in relation to this question. Often, public reaction or outcry is based upon media accounts of the case or of the factors that the media view as relevant to its outcome. We know that the media are often unable to fully capture all of the facts of a case or the legal principles or relevant factors that may go into the ultimate decision. Indeed, we would be naïve to assume that in the space of a column or length of a news broadcast they would ever be able to do so.

Reporting the type of charge and sentence alone do not tell you about any of the mitigating factors, the background of the offender, the legal principles that apply, or indeed, the sentencing guidelines that may have been applicable. And few of us would want to see ourselves tried in the media without the benefit of the full trial process, with the presumption of innocence, and then the benefit of sentencing with the full range of factors being considered by the court. It is very important to our fair and independent system of justice that courts be permitted to operate fully, and that those charged not be judged by others who might care to do so, based only upon a few sensational facts or inflammatory statements by observers, without the dispassionate eye of an independent state-appointed jurist schooled in the applicable laws and legal principles.

Q: The writer asked whether judges are collectively influenced in sentencing a person by government decisions to close correctional institutions. Are people thus sentenced more to non-incarcerated supervision?

I acknowledge receipt of your email to "Ask the Chief Judge" inquiring about whether recent historical events have influenced judges' sentencing. I understand your question to be, specifically, whether judges refrain from imprisoning offenders based upon a reduction in the number of penal institutions. The simple answer is no. Judges do not consider the availability of facilities as a factor in sentencing, nor, in my experience, has it figured in the submissions of the Crown (prosecution) in sentencing submissions. I will outline for you the principles that govern sentencing in criminal matters.

The Criminal Code of Canada and other criminal legislation provides for maximum sentences ranging from six months to life imprisonment depending upon the nature of the offence. Many charges proceed "summarily," based upon a decision by the Crown (prosecutor), which means the maximum jail sentence would be 6 months, or in some cases, 18 months in jail. Conditional sentence orders of imprisonment, fines, suspended sentences, conditional and absolute discharges are also available sentencing options. On many of these, conditions may be imposed, including community work service, restitution, counselling and other measures designed to achieve the goals of sentencing.

The law says maximum sentences must generally be reserved for among the worst of cases and among the worst of offenders. If people continue to commit criminal offences, they often receive successively longer jail sentences, within the limits that the law prescribes. The law also provides for indeterminate (indefinite) sentences for certain persons convicted of serious personal injury offences, in certain circumstances. There is also provision for minimum sentencing and long term supervision of long-term offenders. (see Part XXIV of the Criminal Code).

It may also be of some interest that in the United Kingdom, where the law and range of sentences is similar to that in Canada, a public panel assists in an advisory capacity regarding sentencing http://sentencingcouncil.judiciary.gov.uk. That site has examples of focus groups faced with fact patterns of actual cases. These groups tend to guess that the judge sentenced more leniently than actually occurred, and tend themselves to suggest sentences lower than those actually imposed. One could conclude from this that often the public perception of sentencing as "light" does not reflect the reality. One reason for this may be that media accounts of court proceedings cannot fully capture all of the factors that a court must consider in imposing sentence.

If you wish more information about the justice system, the BC Courts’ website contains a Legal Compendium. The portion dealing with sentencing can be found at: www.courts.gov.bc.ca/.

Q: When I read or hear of the amount of time it seems to take to interview a witness, present an argument or sum up the Crown's case and/or the case for the defence, I find it incredible. So my question is, why does it take so long to deliver these key elements of justice in court?

Your question is a good one. The Provincial Court is sometimes described as a court of summary jurisdiction, and most of the matters we hear are dealt with in less than a day. Though this Court deals with 98% of the criminal cases in the province, very few of the cases take more than a week, and cases of a month or longer are quite rare, though it does seem that case lengths and complexity are increasing.

As a member of the Justice Review Task Force, which considers improvements for both of BC's trial courts, I can tell you that there has been a subcommittee struck to consider the issue of what we call "mega trials": trials that take an inordinate amount of court time to complete. It is a national problem that is also being considered by a committee struck recently by the Department of Justice. I suggest you write to either the BC Attorney General or the federal Minister of Justice to make further inquiries about these initiatives. You may also make inquiries about the activities of the Justice Review Force through their website. You may rest assured, however, that the concerns you have voiced are shared by those in charge of the administration of justice and are being looked at with a view to making improvements.

Q: I am puzzled about the growing popularity of victim impact statements before sentencing. Does the victim impact have any effect on sentencing? Does the process mean that if someone who has no friends or family is killed, the killer gets off lightly because there is less victim impact? I am concerned that this is a sign of a trend toward revenge rather than justice. The punishment should be the same for comparable offences regardless of the consequences if the acts. Please help me understand the rationale.

Your inquiry was a most thoughtful and interesting one. I should advise you that the comments I provide in response to inquiries on this site are simply my opinions, based on a review of the relevant law, and would not serve as authority for the purpose of any Court proceedings.

You ask about the use of victim impact statements in sentencing proceedings and whether victim impact may affect the severity of a sentence. The notion that the impact of crime upon the victim may be a factor in the sentencing process is not new. It is in fact a well-established idea, and is part of the principle that justice is best served if the individual sentence fits the specific circumstances of the case as closely as possible.

In deciding the appropriate sentence, a Court is governed by the sentencing principles set out in Part XXIII of the Criminal Code, and by applicable case law. Those principles require the judge to consider the circumstances of the offence and the offender, any aggravating or mitigating circumstances, other similar previous cases, and to decide what sentence best achieves the objectives of denunciation, deterrence, protection of the public, rehabilitation, reparation, responsibility, and respect for the law. The objective of reparation, which addresses the harm done to the victim or the community, means that the degree of harm has relevance to the sentence. The Criminal Code specifically provides that the Court shall consider a victim impact statement describing the harm done to or suffered by the victim.

The law also specifically requires that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender and that sentences be similar for similar offenders who commit similar offences in similar circumstances.

The balancing of these factors means that a sentence is not dictated by any one of them at the expense of the others. For example, a judge must balance the need to rehabilitate an offender with the need to deter him or her and others from committing offences, where appropriate.
The fairly new Criminal Code provisions requiring presentation of written victim impact statements to the court are merely the formalization of a long-established practice of outlining the circumstances and effect of the crime.

Victim impact statements do not generally offer suggestions to the Court as to the sentence to be imposed, nor would such suggestions be considered appropriate. The better view is that these statements merely provide context and evidence regarding the effects of the crime that may be relevant to the objectives of sentencing, as discussed above.

You are quite correct, however, to question whether a sentence should be increased because one victim, or the family of a particular victim, may be more devastated than another victim or family, in a similar case. Though the law is unsettled as to whether victim impact operates as an aggravating factor in the sentencing process, there is case law suggesting that varying degrees of victim impact should not dictate different sentences in otherwise similar cases.
I trust this is informative. If you wish more information on sentencing, you may wish to view the Legal Compendium on the BC Courts website.

For further comment on Victim Impact Statements, see the section on the Department of Justice (Canada) website on Victim Participation in the Plea Negotiation Process.

Q: Why are names of convicted people and their sentences not made public more often? The absence of their sentences gives the impression that somenthing is being hidden from the public.

You have asked about the publication of the names of convicted offenders and sentences received. Reported decisions on criminal cases may be found through the BC Courts website. Public access to reported decisions in Canada is also provided by CanLii.

Most cases are in fact reported these days, at least through the above sites. Whether the press or other media report them is another matter, and may be dependent upon their availability, access to or awareness of the court proceedings, or interest in reviewing the reported decisions.

Q: What is the difference between the cases that are tried in Supreme Court of BC and Provincial courts? What types of cases are tried in Municipal Courts?

Thank you for your question about the difference between the BC courts. As a starting point, you will find a description of the Provincial Court's jurisdiction on the website and in the Court's Annual Reports .

To provide a very general response to your question, there are two trial courts in BC, the Provincial and the Supreme Court. The Provincial Court has jurisdiction to hear most adult and youth criminal matters, except adult murder cases and criminal jury trials, but in some other cases the defendant has a choice between Provincial or Supreme Court. Provincial Court hears civil cases (disputes between two parties) with a value up to $10,000, and family matters except divorce, adoption and division of property. There are some other areas in which the Provincial Court does not have jurisdiction, like real property, estates, and residential tenancy disputes. Otherwise, the two trial courts deal with the same kinds of cases, the real differences tending to be the value of the claim or in relation to jury trials, which are not held in Provincial Court. That is a simplified answer and there are other variations in jurisdiction not mentioned. There are no Municipal Courts in BC, though there is a Traffic Division in the Provincial Court in which judicial justices preside over ticket offences. There is also talk of a type of municipal court process run by municipalities for municipal ticket offences, but it has not yet been fully implemented.

Q:Can you please give me an idea as to the ratio of defence lawyers to prosecutors,if it is a high ratio say 10 to 1, is this the reason that most judges are lenient towards the defendant because most of their experience has been spent defending clients?

You have asked about the proportion of prosecutors to defence counsel. It appears you are asking about the appointment ratios for Provincial Court. Statistics about appointments may be found in the Judicial Council of British Columbia Annual Reports, posted on the Provincial Court's website. While we have not done a recent tally of judges' backgrounds, I can tell you from my own knowledge and experience that there is not a predominance of judges from one particular field, and in approving applicants the Judicial Council looks for a range of experience and a balanced approach. The criteria used by the Council for approval of candidates may be accessed from the above site as well. Appointments are made by the Lieutenant Governor in Council on the recommendation of the Judicial Council.

You have suggested that most "judges are lenient toward the defendant." You will now find in the FAQ's page, a sample response to a question on sentencing, dealing in part with the public's perception of leniency.

As for leniency in decision making, our system of justice requires that a defendant be presumed innocent and receive the benefit of any reasonable doubt. However, it may surprise you to learn that a majority of cases result in a guilty verdict. Statistics on case results and sentencing may be viewed on the Statistics Canada website.

Q: Some time ago I watched an interview with several judges who were guests on T.V. The subject was about public concern re-our justice system. Since the interview, I've been scanning newspapers, radio, t.v hoping to hear about forums or public hearings regarding the justice system whereby the public can participate. Have I missed something?

I've not seen or heard anything. Because,as you know, Canadians are angry and frustrated about the system and have lost faith and respect. Because of leniency shown for the hardened criminal, we the public feel betrayed and hold judges responsible for increase in crime.

I believe the TV interview you are referring to is the March 2004 Global TV interview by Harvey Oberfeld, in the series, "Contempt for Court." In that interview, Judges Godfrey, Gove, and I talked about the justice system, the public information initiatives of the Provincial Court, and some of the programs and working groups that are currently looking at changes to the justice system. The "Ask the Chief Judge" site to which you have written is part of the Court's public outreach initiative. We have also struck a Public Information Committee which is looking at ways to make judges more accessible to the public and their communities, for dialogues or public forums on justice. After the Global piece, I participated in a public forum on street crime in Vancouver televised on CBC, and spoke to the Downtown Vancouver Business Improvement Association, which was covered in the newspapers. Other judges have recently participated in public forums and discussions on justice, most recently, Judge Gove (who was in the Global interview) has participated in a conference on youth custody, and a panel on safe streets at the Board of Trade's Greater Vancouver Leadership Summit (which I believe was open to the public and covered in the press), and another Vancouver judge attended the forum on victim's rights this week in Vancouver, which was mentioned on CKNW.

The judges of the Provincial Court are very enthusiastic about public outreach and we recognize that we have a way to go in providing this kind of access to people like yourself. I do expect you will hear more about public forums in the next year or so. In the meantime, you might find the question and answer section on the website of some interest, and if you have any specific questions about the Court or the BC justice system that are not answered there, I would be pleased to respond.

Q: Please allow me to congratulate you on your courage and leadership for such a wonderful initiative that will make the courts more accessible. Please rest assured you have my unequivocal support in this matter. I am writing to you with a specific concern. I am a graduate student researching family violence. My research allows me to combine my passion for the law, philosophy and education. My inspiration comes, in part, from the Supreme Court who argued in Butler that education was an under utilized response for combating the harm of violence against women, then, in Lavallée, where the Court once again implicitly recognized the need for education when they concluded that a battering relationship was subject to a great deal of myths and stereotypes.

However I am having a great deal of difficulty in understanding the context in which the Court framed ‘education’. Consequently, I have not been able to get any clarification or direction in understanding their concept of ‘education’ nor have i been able to understand just who ‘education’ is intended for in the first place.

You have asked about the meaning of the term "education" in the Supreme Court of Canada's decisions in two particular cases. The interpretation of a given case is a legal question, and not one that this site is designed to address. Legal interpretations, other than those performed by academics, usually take place in the context of legal advice provided by a lawyer in assisting a client to decide how to proceed with their own case; or in the context of a decision in a particular case in which a party seeks to rely upon the case, and the issue of its interpretation arises. As I expect you are aware, the "Ask the Chief Judge" site does not comment on specific cases, or provide legal advice. If you wish to seek legal advice on the interpretation of those cases, the website of the British Columbia Courts contains information at the following link on how to obtain legal advice in British Columbia: www.courts.gov.bc.ca. The following site provides public access to Court decisions, if you wish to do some research on the question yourself: www.canlii.org/index_en.html.

I can add that, perhaps as a result of those cases or others like them, judges at various levels of court have for many years received ongoing training and education on social context. Among many other things this may include education on the specific myths and stereotypes dealt with in those cases. This type of continuing education may also include education in racial , cultural and socio-economic diversity, equality issues, and other topics that deal with changing social values, norms and mores.

The other manner in which social context education may arise is when an expert is called in a particular case to inform the court on certain aspects of the evidence that might be interpreted differently, given a knowledge base that a court might not be expected to have. Years ago, for instance, this kind of expert evidence was led in child abuse cases, where a psychologist or psychiatrist might be called upon to inform the court about common or expected behaviours among abused children that might not be commonly understood by a judge or jury. In these situations, the court must be careful not to accept evidence that presumes the outcome of the case, i.e. that the child was abused, if that is the ultimate issue to be decided; however, it may be helpful to the court to hear evidence explaining behaviour that might otherwise be viewed as inconsistent (or indeed, consistent) with the allegations in the case. While this use of evidence may not technically be considered "education,"it would be used to assist a court in understanding or interpreting evidence, where the social context in which it occurs is not in the realm of common societal experience.

Q: I was wondering what determines if a criminal offense will be dealt with at the Provincial Court level rather than the Supreme Court?

You have asked about the criminal jurisdiction of the Provincial Court as compared to that of the Supreme Court. Almost all criminal offences may proceed to trial in Provincial Court; the exceptions being murder (for adults), treason, and a few other obscure offences that rarely proceed. Offences like robbery, attempted murder, home invasions, drug trafficking and drug importing, for instance, are all offences for which the defendant has a choice as to whether to take a trial in Provincial Court, or to take a trial in Supreme Court (with or without a jury). In some other (less serious) cases, like impaired driving, and some assaults, the Crown (prosecutor) has a choice as to how to proceed, which may determine whether the matter goes to Supreme Court or not. Over 95% of all criminal offences in BC are dealt with in Provincial Court.

Further information about the jurisdiction of the Provincial Court may be found on the Court's website.

Q: When was the last time that most of the judges took the time to see what's really going on in our society, such as walking the streets of low income areas, riding around for a shift with a front-line police officer or really looking inside our prisons. Far too often the judges live in the wealthy parts of the city, drive their expense cars and avoid the things that affect the majority of people.

I acknowledge receipt of your email to "Ask the Chief Judge" in which you have asked about judges' connection with the neighbourhoods in which crimes occur. Judges of the Provincial Court are generally residents of the communities in which they preside. Those who sit at the Main Street courthouse, at 222 Main St., are very familiar with life on the downtown eastside. Some live there, and all of them spend time on the streets around the courthouse. The same applies to judges in each of the many locations in which Provincial Court presides. Many of them have the daily scrutiny of local media or of their neighbours who read or view accounts of their decisions in the media. Many judges have also been victims of crime, along with their neighbours, and all of them are familiar with the challenges faced by their neighbourhoods and communities.

You question whether judges spend time on the streets or on ride-alongs with police officers. Many of the judges of Provincial Court have indeed participated in ride-alongs or other police or community orientation and outreach programs. Some judges are former police officers, and others have worked as summer students with police departments.

Elsewhere at this website you will find my responses regarding sentencing. The response relating to sentencing explains that process and how judges weigh the relevant factors in attempting to arrive at a just result in each individual case. It would be wrong to assume that judges are somehow removed from the experiences and concerns of our society, or that they have any inherent motivation that is different from or at odds with that of other members of the community. Judges not only want to see justice done, they are required to dispense it and to be governed by the rule of law. They also care passionately about justice and about performing their duties conscientiously, fairly and responsibly.

Q: When is a mistrial declared?

You have asked when a mistrial is declared.

The short answer is that a mistrial is declared when the way in which a case has proceeded results in the judge or jury being unable to render a decision. The declaring of a mistrial is a discretionary decision on the part of the presiding judge based upon what the interests of justice may require. It can occur when a significant conflict for one of the parties or the judge comes to light late in the proceedings, or where for some reason there is irreparable prejudice to the interests of one of the parties or to the fairness of the trial. It also occurs as a matter of law when a jury is unable to decide the case, or is "hung."

In any case where a mistrial has been declared, the trial may commence again. In a criminal matter the question of whether there will be another trial will be decided by the Crown or prosecutor.

Q: I was wondering why, or if, an accused's time spent in pretrial should count as double time towards his sentence, especially if the accused is the one who is causing the delays?

Your question is a good one, and one which judges consider on daily basis. The kind of case you refer to, where an offender has spent three years in custody prior to a murder conviction, would be one more commonly dealt with in the Supreme Court than by Provincial Court judges. The Provincial Court only hears murder trials on young persons, where there is usually a lower range of sentence. Given that Provincial Court is the court of first instance and that most cases are dealt with within less than a year of their first appearance, especially if the defendant is in custody, it is rare for Provincial Court judges to deal with persons who have had such a length of time in custody.

However, it is a daily occurrence that a person will plead guilty to an offence while in custody, and the question arises of how much time they should be credited for. There is case authority to the effect that it is appropriate to credit pre-trial custody, which is often done on a two-for-one basis, on the theory that time spent in custody is generally harder and less productive in terms of rehabilitation and programs available to the offender than is time in jail in an institution after conviction. It is also not eligible for remission (parole). There is no hard and fast two-for-one rule, though it is treated as a rule of thumb. The most prominent case dealing with this issue is that of R. v. Wust, 2000, Supreme Court of Canada. You might also have a look at R. v. Mills, 1999, BC Court of Appeal. The site I have referred you to is CanLii, a public site for accessing Canadian court decisions.

This principle of credit for pre-trial custody is one of the legal principles that has been adopted by the courts after due consideration of the conditions of incarceration pre-and post-conviction. As with other legal principles, judges and courts are required to follow them, unless they are overturned by the courts or overruled by the legislature through legislation, so where the principles in the Wust case are met, in most cases, pre-trial custody would result in a credit higher than the amount of time actually spent, though it may be less, or in some rare cases, more than double.

As I have stated, the two-for-one principle is just a guideline, and each judge must assess the amount of credit that is appropriate for a pre-trial period of custody in a particular case, including the reasons for the delay. If, as you have postulated, a judge was satisfied that an accused was causing delay solely for the purpose of avoiding post-sentence rehabilitation programs or that his only motive was to build up two-for-one credit prior to sentence, he or she might be given less credit.

It would be open to Parliament to make a law negating the rule that pre-trial custody should be credited at a greater rate than post-sentence custody, or at all. If such a legislative change were to occur, arguably it should be accompanied by changes to the pre-trial custody system so that the time spent in it was more comparable to that in a correctional institution, such as by providing more or better rehabilitative programs in pre-trial custody, and including it in sentence calculation for parole purposes. In the absence of a change in the law, the principle of increased credit for pre-trial custody stands as one that judges generally follow. It may therefore be taken that a sentence of time served (pre-trial) is the same as a sentence of approximately double that period in a post-conviction institution (where credit has been given on a two-for-one basis). The media do not always report cases in a fashion which discloses the amount of time that the offender has been credited. This may be understandable, since to a member of the public, it may seem like a bit of an artifice to say that a person has spent more time in jail than he or she really has, though as I have endeavoured to explain, there is legal authority and logic behind it.

Q: Why is possession of marijuana still a criminal offence?

Your comment relates to whether there is a need for law reform in a particular area of the law. This website deals with the role of judges in upholding existing laws. Making laws is a function of the legislature, and suggestions for law reform should be directed to Members of Parliament. Judges apply the laws that are created by legislation and by prior cases; they do not make or change laws. Indeed they are governed by the rule of law, and they function separately from the other two branches of government, the legislative and the executive. This separation, or independence, is one of the true strengths of our democratic system of government.

Judges may be trusted to apply the laws fairly and without bias to each party before them, even when one of those parties is another branch of government, as in criminal cases where the Crown counsel represents the Attorney General or Minister of Justice. For this reason it is not for judges to be political activists or law reformists, or indeed to comment upon the state of the law, except through their decisions.

Q: I would just like to know how someone can be convicted of First Degree Murder and only get a sentence of 10 years or less. Someone that kills a person should spend their life in jail with no possibility of parole. Parole is also something I think is offered too soon. A person should have to serve AT LEAST 75% of their sentence before being eligible. Even better, parole shouldn't exist at all. If someone is sentenced to 25 years in prison, then he or she should serve 25 years.

Eligibility for parole on a life sentence for murder is determined within the dictates of the Criminal Code, which sets the period of eligibility and criteria for deciding on the applicable period. It is not correct to say that the sentence is "10 years or less", as the period set is that of parole ineligibility, or the minimum sentence, not the maximum. An offender sentenced on a murder charge receives a life sentence and may be released on parole only after the minimum period is served. The issue of release is determined by the Parole Board.

The Provincial Court does not deal with murder other than for youths, for whom there is a separate sentencing regime under the Youth Criminal Justice Act. Otherwise, these sentences are imposed by the Supreme Court.

Further information regarding sentencing in general may be found at www.courts.gov.bc.ca.

Your suggestions for changes to the system of parole eligibility would require reform of the existing Criminal Code provisions, or perhaps of Parole Board practices or policies, and are not areas on which I as a judge may properly comment.

Judges apply the laws that are created by legislation and by prior cases; they do not make or change laws. Indeed they are governed by the rule of law, and they function separately from the other two branches of government, the legislative and the executive. This separation, or independence, is one of the true strengths of our democratic system of government. Judges may be trusted to apply the laws fairly and without bias to each party before them, even when one of those parties is another branch of government, as in criminal cases where the Crown counsel represents the Attorney General or Minister of Justice.

For these reasons it is not for judges to be political activists or law reformists, or indeed to comment upon the state of the law, except through their decisions. You might address further inquiry regarding reform of the parole system to your Member of Parliament.

Q: What laws need to be changed in order that felons would have to take mandatory courses to change their behavior before being released back into society? Also, what laws would need to be enforced in order that all criminals who are changed with a crime must have their DNA entered into a databank, something like the system they have in Florida?

You have asked about mandatory courses for “felons” and the DNA databank.

Courses and other resources offered to (or required of) persons who are in jail under sentence by the Courts are under the authority of the relevant Corrections Branches and Parole Board, and I am not able to comment knowledgeably about what their current policies or programs might be. You might wish to inquire through the Department of Justice website or the BC Corrections Branch.

For offenders who are subject to non-custodial court orders, including probation orders and conditional sentences of imprisonment to be served in the community, courts do often order that a course of treatment, counseling or life skills training be completed before the end of the sentence. Failure to complete these courses without a lawful excuse would amount to a breach of the order and could result in a new charge of breach of probation, or the serving of some time in jail on a conditional sentence.

There is legislation in Canada requiring that offenders convicted of certain offences provide DNA samples for a federal databank. The Court also has a discretion to require this for other offences. The offences for which DNA must be collected (except in certain circumstances) include murder, sexual offences, serious assaults, kidnapping, and other serious offences against persons. Offences where DNA collection may be ordered by the Court include child pornography, criminal negligence causing death, assault, breaking and entering and other less serious offences. These offences and the DNA legislation may be found in the Criminal Code, at laws.justice.gc.ca/en/C-46/text.html.

Q: I am researching for a school project on Chief Justices, preferably in the Provincial Court. I would appreciate any information.

what are the educational requirements to becoming a chief justice?
what are the other qualifications to becoming one?
what are the responsibilities of this position?
what special skills are needed or obtained?
and what is the work environment like for such a position?

For your information, judges in the B.C. Provincial Court are called "judges", and those in the B.C. Supreme Court, Court of Appeal and the Supreme Court of Canada are called "justices", so the chief of the Provincial Court is called "Chief Judge", rather than "Chief Justice". The chiefs of the other courts are called "Chief Justice".

What are the educational requirements to becoming a chief judge?
In order to become a chief judge one must be a judge of the Provincial Court. The educational requirement to become a judge is that an individual must have a law degree. Usually, before entering law school, people first take an undergraduate university program. In my case, I took Commerce at UBC before going into law, but most undergraduate programs would qualify for entrance to Law School. Entrance requirements for law schools and undergraduate programs can be obtained from the schools themselves.

What are the other qualifications to becoming one?
The Provincial Court Act requires that a person must have practiced for at least 5 years as a lawyer, or have similar experience, in order to be appointed as a judge. Recommendations for appointment are made by the Judicial Council of BC, and the Council has published criteria for applicants. The Council specifies that normally a person must have been a practicing lawyer for at least 10 years. In my case, I was a lawyer for 13 years and then a judge for 7, before I was appointed Chief Judge. The appointment of a chief judge is made by the Lieutenant Governor in Council. The only statutory requirement is that the person appointed must be a judge. In the past, chief judges have had administrative experience, leadership qualities, and usually, but not always, experience as a sitting judge.

What are the responsibilities of this position?
The chief judge supervises the other judges and the judicial justices of the Court, which involves scheduling and assignment of judges and JPs by location and subject matter, liaising with the Attorney General and other government representatives about matters affecting the Court, representing the Court at official functions, and responding to complaints about judicial conduct (see the website for more information about complaints). The Court has a staff of about two dozen people at the Office of the Chief Judge at Pacific Centre who provide administrative services to the judges and JPs. As well there are about 60 secretarial and trial scheduling staff throughout the province. Along with the Administrative Judges in the Administrative Districts of the Court, the chief judge supervises these staff and oversees a budget of about $38 million. The chief judge also is the chair of the Judicial Council, which makes recommendations for judicial appointments to the Lieutenant Governor in Council (also on the website).

What special skills are needed or obtained?
The skills for a chief judge are quite different than those for a sitting judge. There are a lot of administrative duties, such as staffing issues, applying expense policies, assigning judges and JPs, liaising with government representatives, writing business reports, and analyzing statistics, that sitting judges do not normally perform. The skills required include diplomacy, public speaking, organization, report writing, and efficiency. Chief judges also often sit in court, so the usual skills for sitting judges would also apply (see criteria for appointment under Judicial Council on the website.)

What is the work environment like for such a position?
For the Provincial Court, the environment is an office at Pacific Centre, staffed by about two dozen people, where the chief judge works when not out attending meetings or Court functions at other places in the Province. There is a lot of travel to things like judges' swearing in ceremonies, courthouse openings, meetings and other functions that the chief judge is expected to attend, so the environment includes most of the province. The chief judge sometimes sits in Court at various places in the province as well. One of the advantages of being chief judge is getting to know BC a lot better and visiting most of the places in the province that have courthouses.

Q:I have a general question on lie-detector tests. How much credibility does a judge give to this? Is it admissible in court? The police routinely use this as part of their investigative arsenal. I would assume that the reliability of such a test would depend on the person who administers the test. . . . I was curious about your opinion on this.

I acknowledge receipt of your email inquiry to "Ask the Chief Judge". You have asked about polygraph tests and whether they are admissible in court. You have also asked about their reliability. I will first point out that as a general rule, lie detector test are not admissible in court proceedings, on the basis that evidence of this type may not supersede the role of the court to decide the credibility of a witness: Regina v. Beland & Phillips.

While police officers may rely upon such tools to assist them in an investigation, lie detectors operate on the basis that the person is conscious about what is true and what is not, and that a person will react differently when telling a lie than when telling the truth. Testimony in court is often not so simple as the truth or a lie. The ability to observe, record, retain, recall and articulate [that is, put the recollection into words] may intervene to colour or taint a person's testimony. There is sometimes a tendency to "fill in the gaps" in the memory, often without being conscious of doing this. In such a case, the witness would give a sincere, but inaccurate, description of what happened.

Also witnesses may "see" an event differently. For example, a Canucks fan may tend to "see" the calls made against the other team more than the calls made against the Canucks. A fan of the other side would have a different point of view and might have a different recollection of fairness or competence of the officiating.
The lie detector presumes that a person who is lying will have an elevated level of anxiety and exhibit physical symptoms like sweating, increased blood pressure or breathing or heart rates. A sincere but inaccurate or unreliable witness would not believe that what he or she was saying was false so would not react like a person who was intentionally and consciously deceiving. A psychopath, having no conscience, might not be anxious and might appear to be truthful to the lie detector. In each case, the lie detector operator would report that the witness was truthful. As you suggest, the reliability and accuracy of a polygraph may also be dependent on the expertise of the person administering the test.

In court an expert might testify as to the scientific basis of the lie detector and to its validity in detecting liars. Once science has pronounced a witness to be truthful then the judge or jury may tend to accept that witness's testimony without considering whether, in spite of the sincerity of the witness and the expert testimony, there are other factors that may affect the witness's reliability or accuracy.

In this way the lie detector may introduce into the trial an unquantifiable potential for prejudice which would outweigh its value in assisting the judge or jury to come to a just conclusion. In short, polygraphs speak not so much to guilt or innocence but rather to the veracity of the witness.
For more information on the law relating to the credibility of witnesses, you may refer to Chapter 10 of the Legal Compendium on the BC Courts website.

Q: I am a 4th year Criminology student. As part of one of my assignments, we have been asked to read the Little Prince storybook and to write an assignment based on the following question:

As a newly appointed Provincial Court Judge, the Chief Justice has requested to you that you must read this book. Why do you think the Chief Justice has asked this of the newly appointed judge?

I realize you are extremely busy, however just a short response would be greatly appreciated provided you have read the book.
Thank you for your time, and especially for being a strong role model for other females (such as myself) to admire.

You have asked for my comments on an intriguing question posed to you in your Criminology class. You may have already found yourself an answer to this question as I suspect your deadline may have passed.

I must confess that if I did read The Little Prince, it was quite some time ago. I tried to enlist some assistance from the members of my Public Information Committee, but it seems few of them remember the book, either. My first comment would therefore be that perhaps it was suggested as curriculum because whatever lessons are offered in it have long been forgotten by judges. The book is not a part of the current continuing education programs for judges, and perhaps after this interesting discussion, we should consider making it one.

One of the judges has a daughter who is an English major, who was able to advise us that the book's themes of discipline, tending the planet, taking the time to weed the bad out from the good, listening, seeing true meaning beyond appearances, as well as the concept that authority is based upon reason, may all have application to the work of judges. She suggested that the overall point might be that the justice system could use a little idealism to raise it out of inaction or apathy. (She also said she wished that she got assignments like this!)

I am sorry we could not have been of more assistance, but perhaps for us the lesson was learned through the asking of the question. And of course, for you, the task was to provide your own views on the meaning of the book and how you believed it might be relevant to the dispensation of justice.
I wish you well in the completion of your Criminology Course.

Q: Have you ever felt God's presence, or seen Him while on the Bench?

While there may be some interplay between the legal system and individual spiritual beliefs, the justice system and the court process are designed to uphold the laws of society as defined by that society, which may be quite different from religious laws, in some cases. That is not to say that religion plays no role in the court process; persons who testify in court have the option of swearing an oath on a Bible or other holy book; and religion may play a significant role for individuals involved in the court system who adhere to a faith, whatever that faith may be.

Because there are so many different faiths in our Canadian culture, and in the world, however, our secular system of justice cannot incorporate features of any one faith to the exclusion of others. We in Canada adhere to the principle that church and state must be separate. While a legal system is designed to instill respect for the rule of law and to foster civil obedience, it is designed by the community it serves, and must be non-denominational. We jurists are content to leave questions of religion out of the mix and to strive only to uphold the law of the land we have sworn to serve.

Search form

You are here