If you've never been in a Canadian courtroom, it's an experience well worth your time. One of the most striking things is the respect shown the most despicable of offenders. They are individuals. No matter what a person is charged with, they're Mr. and Mrs to the judge. Civility reigns. And, ideally, justice.
It might take some time, but eventually all circumstances are taken into account for sentencing: aggravating, mitigating and personal.
The system gives judges discretion to punish offenders based on those factors. But some in the legal community claim the federal Justice Department's so-called tough-on-crime agenda has strait-jacketed judges, replacing punishment tailored to individuals with one-size-fits-all-justice. An uneasy fit for many.
Robert Latimer, the Saskatchewan farmer convicted of second-degree murder in 1997 after killing his severely disabled daughter Tracy, is to appear in Federal Court in Vancouver on Wednesday to challenge a National Parole Board decision requiring the 60-year-old to obtain preapproval for international travel.
One of his most prominent allies in appealing a stringent parole system is a former high official in the government he's fighting.
In a letter to the Parole Board of Canada, Mary Campbell makes it clear she's backing Latimer as his "good friend" and not just as "one of the writers" of the legislation which governs the board.
The former director general of the Corrections and Criminal Justice Directorate for Public Safety Canada came to know Latimer after he was released on parole in 2008.
Campbell invited him to speak to one of her classes. Since then, their friendship has continued, though Campbell says she has been careful to keep the relationship and her public service work separate. She retired a month before writing the letter, calling Latimer "the most genuinely kind and caring person" she's ever known.
Regardless of your views on euthanasia, the Latimer case itself is a reminder of the unlikely relationships that exist between Canadians on both sides of the law: enforcers and offenders, prosecutors and defendants, lawmakers and law breakers. Simply put, even people within the justice system have friends well outside it, which makes it all the harder for them to embrace a tough-on-crime agenda that ignores the individuals at the heart of criminal cases.
To be clear, Campbell's issue here is with the parole board's application of the law she helped write. But since retiring, she has been vocal in her criticism of the Conservative government's agenda, describing it as "just nastiness towards a certain group of people for the sake of nastiness."
That's a point echoed by Latimer's lawyer, Jason Gratl: "The federal government executive is almost as a matter of policy trying to make life for inmates as difficult and as harsh as possible ... Although it's not strictly speaking part of Mr. Latimer's judicial review, I think the parole board's approach to refusing to lift his international travel restriction falls within that overall policy approach."
As with Campbell's letter, glimpses of the view from within the judicial system don't necessarily come in broad public statements; they're more often found in court filings, affidavits and decisions from judges grappling with rules replacing their discretion with mandatory minimum sentences.
- Ottawa defends mandatory minimum sentences
- B.C. judge strikes down mandatory minimum sentence for drug trafficking
Last year, Vancouver provincial court Judge Thomas Gove was essentially forced to give an impoverished offender two days in jail for defaulting on a mandatory $100 victim surcharge for theft. Dennis Bailey was convicted of stealing meat from Safeway. Gove made it clear he would have preferred to waive the fine.
An Ottawa judge has since ruled the surcharge unconstitutional, setting up one of many legal challenges to Harper's agenda that are likely to end in the Supreme Court of Canada.
Others include mandatory minimum sentences for gun crimes and for drug traffickers previously convicted of the same offence within the past 10 years. In that case, Judge Joseph Galati found the law cast too wide a net, subjecting chronic addicts and trivial offenders to the same jail time as serious thugs by ignoring the "personal circumstances" of offenders.
Ontario Justice Melvyn Green echoed the same theme last year in an essay written for the Criminal Lawyers Association. He rails against the removal of judicial discretion in sentencing as flying in the face of decades of sentencing reform.
"A policy of punishment, incapacitation and stigmatization has replaced on premised of the prospect of rehabilitation, restoration and reform," Green writes.
"Draconian penalties will never address the rewiring and therapy necessary to make damaged persons, if not whole then, at least productive and responsible participants in the communities we share."
The Canadian Bar Association has also consistently opposed legislative changes that make it hard for judges to tailor punishment to particular circumstances of offenders. That's not to say that longer, tougher sentences shouldn't be dished our where warranted.
"The judge has heard the particular circumstances of the offence and the offender and is best able to craft a sentence that will balance all the goals of sentencing," the CBA wrote in a 2010 submission to the standing Senate committee on legal and constitutional affairs.
"The judge is also best equipped to assess what will address the needs and circumstances of the community where the crime occurred."
Likewise, Campbell writes in support of her friend: "Mr. Latimer is the only person in Canada serving a life sentence for his behaviour.
"The same laws must govern all offenders, but their particular application must be individualized."
Perhaps that's what cuts against the grain for people like Campbell.
Our justice system is a reflection of what we consider right and wrong as Canadians, a chance to show the worst among us our better selves. Not to prejudge anything — including punishment. All crime is unique in its impact on victims. All criminals are individuals. And sometimes, they're people we know.