Part I – Crazy Little Thing Called Sentencing: R v Crazyboy
In the criminal justice system, where the rights and liberties of individuals are often at stake, sentencing is one of the most difficult tasks of a judge. It is the final step in a process that begins with the presumption of innocence of the accused, and ends with the jury being convinced of the accused’s lack thereof. The question of just how much punishment is appropriate then falls on the shoulders of judges— especially those in the lower courts, who must then tread the fine lines between public policy, precedent and (the accused’s) personal situation. While the end result is seldom happy (if that word can even be used in such circumstances), the underlying principles of sentencing theory are premised on preserving and upholding the fundamental purposes of the act of sentencing, which are outlined in s. 718 of the Criminal Code. No doubt, judges must try and do their best to stick as closely to these competing rationales as possible.
Every once in a while, though, a decision like R v Crazyboy, 2012 ABCA 228, (“Crazyboy”) comes along, highlighting just how precarious the sentencing process actually is; resting largely as it does on judicial discretion, it is subject to the vagaries and errors of judges themselves, who are, in fact, and as surprising as it may seem, human like the rest of us. The scathing critique by the Alberta Court of Appeal (ABCA) of the lower court judge’s reasoning highlights much larger underlying issues in the Canadian sentencing system, which I will examine in greater detail next week, in Part II of this commentary.
The accused, Mr. Earl Sheldon Crazyboy, was involved in a relationship with the complainant, his common law partner for five years. During that time, she was subject to physical abuse by Mr. Crazyboy, who was ultimately arrested and charged with assault in May 2010, subject to ten days of imprisonment and one year of probation. However, Mr. Crazyboy re-assaulted the complainant as soon as the probation period ended, and was detained again in June 2011 with a court order preventing him from contacting the complainant.
While awaiting trial, however, Mr. Crazyboy telephoned the complainant 13 times, in addition to writing her a letter attempting to persuade her to retract the charges. The complainant refused to do so, and ultimately testified against Mr. Crazyboy in court, where he was convicted on the three charges of criminal harassment, disobeying a court order and obstructing justice. However, the sentencing judge credited Mr. Crazyboy with predisposition time he spent in custody, which, when subtracted from the punishment meted out to him, resulted in the accused being asked to serve one day of jail time for his crimes.
Needless to say, the Crown appealed the case to the ABCA, where the court engaged in an analysis of the purpose of sentencing, while pointing out the fundamental errors made by the trial judge. In reversing the lower court’s decision, the ABCA was also quick to highlight the importance of proper sentencing procedure, coming down rather hard on the proposed arbitrariness of the lower court judge.
The justices of the ABCA took two approaches in reaching the same conclusion in the appeal, namely that Mr. Crazyboy’s sentence ought to be extended since “the circumstances call[ed] for a significant period of incarceration” (Crazyboy at para. 11) Martin J.A. and Hunt J.A. pointed out that the trial judge erred in his reasoning while incarcerating the accused, and that his leniency was in fact based on incorrect reasoning, rather than on sound principles of judicial reasoning. Justices Martin and Hunt both emphasized that certain factors, such as the lack of violence on Mr. Crazyboy’s part while trying to convince the complainant to withdraw the charges against him, were not to be seen as grounds for clemency, but rather as factors that did not aggravate the circumstances any further.
Even more importantly, the justices stressed that the accused’s Aboriginal ancestry could not be used to pardon his actions, and that proof of Aboriginal roots did not automatically become an excused for a mitigated sentence (Crazyboy at para. 10). In setting the accused’s sentence to seven months, after crediting him with predisposition time, Martin J.A. and Hunt J.A. once again recalled the accused’s record of repeated assaults, his breach of the no-contact order, and his attempts to obstruct justice as some more reasons to consider handing him a stronger sentence than the lower courts did.
Justice Watson, on the other hand, had considerably more to say, specifically on the “failure of the sentencing judge to adequately meet the functional requirements of reasons for judgment as to sentence.” (Crazyboy, at para. 12) While giving due credit to the lower court judge’s attempt to explain his thinking, Watson J.A. pointed out that the judgment did not live up the standards of the vigorous sentencing requirements outlined in s. 718 and s. 728 of the Criminal Code. Accordingly, there were, in his opinion, three fundamental aspects in which the trial judge erred, compromising the intelligibility, reviewability, and accountability of the judgment.
Beginning with a critique of the trial judge’s interpretation of the principles of sentencing, Justice Watson pointed out that the vague assertion that ‘“[i]individualized sentencing, as opposed to “tariff” sentencing has been endorsed by the Supreme Court of Canada….’ (Crazyboy at para. 22) had no authoritative backing. Criticizing the lack of a concrete reason as to why the trial judge calculated the terms of the sentence to be what it was, Justice Watson noted that the trial judge made no attempt to explain why the individualized sentence he applied to Mr. Crazyboy was justified. Rather, it seemed as though Mr. Crazyboy’s background, life experiences, and racial history were the determining criteria in the length of the sentence; this was a methodology to which Justice Watson was strongly opposed.
Whether the trial judge sufficiently considered the point of the sentence to be given was addressed next. In Justice Watson’s opinion, neither criteria of general deterrence, denunciation, or rehabilitation would have been sufficiently met with a one-day sentence. And so, the trial judge’s murky reasoning continued to botch the judgment further. A third and final error involved the consideration of Mr. Crazyboy’s Aboriginal ancestry as grounds for an automatic lenient sentence; using this factor as an excuse would amount to a justification of the accused’s conduct (Crazyboy, at paras. 33 and 34), according to Justice Watson.
In reversing the lower court’s decision, the ABCA made no secret of its displeasure with the methodology and reasoning of the trial judge. At heart was also the issue of justice for the complainant, and it is possible that her willingness to testify in court, in spite of efforts to the contrary from the accused, also played a role in the final decision of the ABCA. Crazyboy does call into consideration two things, however: 1) the role of and emphasis on judicial discretion in the sentencing process, and 2) the difficulty in adhering to the underlying principles of sentencing policy. Stay tuned for the second part of this analysis next week, which will address the tension between these two issues in the greater depth, while examining the lower court judgment, and the trial judge’s rationale in detail.