Written by Jon Duncan, defence lawyer
Prince George
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Friday, 15 August 2008 |
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Our chief judge appears to say that the low number of appeals filed by Crown is a good indicator of the performance of our judges. This suggestion is overly simplistic and wholly misleading. If anything, the low number of appeals is an indicator not of the performance of judges but the rising cost of litigation.
The decision to appeal or not to appeal involves many factors. In my experience as a lawyer, the cost of an appeal is by far the most important factor in deciding whether or not to file. In most cases, although a client may not like the result, the cost is too great to merit further review.
The truth is that there is no easy way to determine whether judges of our courts are performing well. In fact, many of our judges deserve high praise for their work. There are decisions we may question. There are even decisions that are plainly wrong and cannot and should not be supported in principle or law. But this is simply a reminder of the human element involved in the exercise of judicial discretion when sentencing offenders.
Quite frankly, the fact that the public perceives that sentences are too low is an indication not of poor judicial performance, but poor public relations. Media reports of criminal sentencing decisions rarely explain accurately the difficult and careful consideration by sentencing judges and the lawyers of competing sentencing principles. Instead, the public receives a report which overemphasizes the "act" without any consideration of the "context." Factors that must be considered by judges include the impact of the act on the victim, the background of the offender including his or her criminal record, public perceptions, the desire for denunciation and the need for rehabilitation. The sentences which are given are an attempt to balance these and various other factors mandated by our governments.
It is no easy task for lawyers or judges to reach this required balance. In the vast majority of cases, however, if one takes the time to carefully examine all of the reasons behind a judge's decision, the result will be just in all the circumstances.
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Last Updated ( Friday, 15 August 2008 )
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