How the NWT’s judges arrive at their sentences

Last week, 19-year-old Elias Schiller received a four-year sentence for manslaughter in the killing of Ahmed Mahamud Ali – a taxi driver attacked after driving Schiller home.

Once the judge’s decision was made public, some residents questioned the length of the sentence and how its length might be interpreted, particularly by fellow cab drivers.

“I have never viewed my customers as a threat to me … now I fear everybody while working,” one driver had earlier told the court in a victim impact statement.

Judges do not, as a principle, grant interviews to discuss the verdicts they deliver, instead providing the reasons for their decisions in court.

Cabin Radio invited Peter Harte – an experienced, Yellowknife-based criminal defence counsel – to discuss how sentencing in the Northwest Territories works and the guidelines judges rely on to come up with sentences.

Harte sets out how judges reach sentences and analyzes how the justice system cares for, and communicates with, victims of crime and their families.

He then assesses whether sentences have the effect the justice system intends.

You can listen to that interview in the Lunchtime News podcast or read the full transcript below.

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This interview was recorded on January 29, 2020. The transcript has been lightly edited for clarity.

Ollie Williams: Appreciating you had no involvement in this case, how do you reach a sentence in a case of manslaughter like this? What are the factors taken into account to arrive at something like that four-year term?

Peter Harte: The fundamental principle in the sentencing process is that an offender should be sentenced in a way that reflects the seriousness of the crime and the level of moral culpability of the offender. So for example, as the crime gets more serious, in theory, the punishment is to get more serious. And as the moral culpability of the offender goes down, the punishment should be less serious. When we’re talking about moral culpability, we mean the extent to which somebody has actually chosen to become involved in criminal activity.

It’s frequently the case in the North that people find themselves in a situation that they respond poorly to, maybe because of intoxication, or drugs, or trauma history, and the court is imposing a sentence on individuals who’ve not actually chosen to become involved in criminal activity – it’s simply a collateral thing that has come up. In the normal course, the sentence imposed would be lesser than that imposed on somebody who made a deliberate choice to become involved in criminal activity. So that’s really the critical starting point for sentences.

There are other aspects to be taken into account: the principles and purpose of sentencing. The purposes in the Criminal Code are to denounce unlawful conduct, to deter the offender and other persons, to separate offenders from society where necessary to assist in rehabilitation, and to provide reparations for harm done to victims or the community. Finally, to promote a sense of responsibility in offenders and to acknowledge the harm that has been done to victims. So those are really the variables, broadly speaking, that need to be taken into account in that sentencing process.

You mention this sense of moral culpability. In a case like this, it sounds – from what we have heard in court – as though someone in an altercation made split-second decisions that ended up going very badly. What I take from what you said is that’s treated differently, when it comes to sentencing, to someone who may have planned several days or weeks in advance to do this.

Absolutely correct.

How does the justice system explain to families, in situations like this, why somebody gets four years in prison for what the family may consider to be a life sentence for their family member?

It’s a failing, I think, of the justice system that more is not offered by way of support. And it’s unfortunate because it almost always has collateral consequences. You see, again and again, traumatized victims traumatizing victims. Part of the problem is that when victims are dealt with by the criminal justice system, the consequences of what has taken place are not really very carefully dealt with.

One of the challenges is realizing the consequences of being a victim. It’s not always immediately clear exactly what kind of damage you’ve sustained as a victim in the criminal justice system. It’s difficult for the justice system to to properly account for itself – and what it’s done – to people who have sustained a loss, because their own situation is so complicated. We expect the justice system to kind-of act as a substitute for an extended counselling relationship just by saying, ‘Oh, OK, here’s the punishment, boom.’ Victim support is available and I know there are efforts to explain to people what has happened, but it’s a complex process. For the most part, the system expects that giving people an opportunity to read victim impact statements in court – or provide victim impact statements – and have an interaction with the Crown will give them the sense that justice has been done. As a result of the sentence being imposed, our expectation is that victims walk away and everything’s cool. But they end up with significant questions and uncertainties and doubts about what has happened.

The biggest problem is the justice system is never going to bring their loved one back. That vacancy ends up being there and criminal justice, unfortunately, does absolutely nothing to fill that hole.

Can you understand why some people would look at four years for a killing of this nature and feel it is nowhere near enough?

I can understand why people who have sustained catastrophic, horrific loss would feel that a particular time in jail is not enough. But honestly? I’ve been doing this for 32 years now and I’ve never heard somebody say, ‘That’s enough time in jail.’ I’ve never heard that comment made. So I’m not sure that dissatisfaction with the outcome is ultimately the measure of whether or not the justice system has worked.

It’s so frustrating. I’m concerned about the extent to which people need to understand what’s going on in the justice system. A judge is told their fundamental goal is to impose a sentence that meets what they, as a judge, consider to be appropriate in the circumstances, where they have to take the gravity of the offence and offender’s level of responsibility into account. Judges are struggling with that all the time and they have to deal with the factors that they consider will result in a just sentence, and impose that. They are keenly aware of the fact that people may disagree with their sentence and they try to explain how they’ve come to the result that they have. Judges almost always say, ‘I’m struggling with figuring out what to do. I am not happy about putting you in jail.’ Those are honest concerns that they have. No judge starts out with the proposition, ‘Oh, it’s going to be a great day, I can put somebody in jail.’ They struggle to figure out what they should do. It’s not an easy call to make.

Judges understand that it’s going to be a challenge for people, at times, to understand what’s going on. And I think I can say that they genuinely do their best to try to make sure that people do understand. I had a client, for instance, who challenged a mandatory minimum sentence in a firearm situation. He was in possession of a firearm in connection with robbing a convenience store. The judge gave two sets of reasons for their decision. The first set was intended to be tailored for him – he has fetal alcohol spectrum disorder and she knew that he had difficulties understanding what was going on. The second set of reasons was intended for justice system participants as an explanation for why she had reached the conclusion that she did. Judges, I think, universally try to explain what’s going on, but their job absolutely not to impose something that they think is going to satisfy a need for revenge.

There is a concept – retribution – often seen as closely related to revenge. However, retribution refers to just deserts, just meaning that it’s actually deserved. It’s not revenge. It’s the imposition of a penalty of some sort that the accused deserves to receive. And so revenge is never part of what the criminal justice system is supposed to be responding to.

If raw sentence length on its own is not an adequate measure of whether or not the justice system is functioning the way it should be, what are those measures? How do we know that our legal system in the North is getting it right in cases like this?

I guess the starting point is: when you say ‘getting it right,’ what does that mean?

An American study, now dated, looked at what people thought of sentences that were imposed in court – relative to a simple, bare description of what took place. In many instances, they thought the sentence was too light. And then they were given background information about the accused, more information about how the offence had taken place. They were given more information than they picked up just from media accounts.

I have pages of notes on an accused and extended submissions that are made in court and are not picked up in the reporting of it. And I’m not faulting the media – space is limited time is limited – but the result that was obtained in this study suggests that once people know all of the variables that go into making a judicial decision, they support the sentences that were imposed. In some cases, they thought the sentences were too harsh, although they had started out almost always with the position that the sentencing was too light. Because of the limitations on reporting, it may be that it just appears to be wrong.

Generally speaking in the NWT, for a manslaughter, you’re looking at somewhere between two to five years depending on the facts of the situation. There are cases that go above that, there are cases that are potentially below that – I don’t know offhand of any that exists, but I’m certain I could find one if I dug around. those are cases that I know of that I have on my laptop in front of me that I could could give you. Whether or not a sentence is right is going to depend on whether or not it falls within the range and then if, for some reason, it doesn’t fall within the range, a judge may have a perfectly good reason for going outside that range. In terms of getting it right, it’s something that gets painted with a very broad brush. The range of sentences for manslaughter is somewhere in the two to five-year range. And so getting it right falls within very broad parameters.

From your perspective, as someone who works within the northern legal system, do you feel as though – generally speaking – the system is delivering the right outcomes and helping the people that enter that system?

The short answer to that question is it depends on what you think the justice system is intended to do. Is it intended to deter crime, for example? That is one of the stated variables that needs to be addressed in the Criminal Code. With 32 years of experience in the criminal justice system, as a prosecutor, as defence counsel, as a small claims court judge, I think I’ve got a good set of statistics from which to make this statement: deterrence is nonsense.

People who commit crimes are simply not deterred by the punishment aspect of it. People are deterred from committing criminal offences by what people might think of them, by what their family might think of them. They’re deterred by social variables. But as an example, in the early 90s, the Criminal Code was amended to provide that judges were not permitted to give the accused exemptions in relation to driving prohibitions – which are associated with drinking and driving offences – for work purposes. So at one point, in the late 80s and early 90s, a judge could say, ‘Well, you’re prohibited from driving except for work purposes.’

Now – 30 years later – last week, a guy said to me, ‘But I can drive for work, right?’ So the message that deterrence requires, ‘This is what’s going to happen to you if you’re caught drinking and driving,’ is not being communicated. One of the challenges with deterrence is when serious crimes are committed in small communities, people don’t find out about it. There’s word of mouth but it doesn’t really communicate the message that deterrence requires. ‘If you do this, you’re going to jail for an extended period of time.’ I was dealing with a guy recently in an arson situation, and he was kind-of shocked at the penalty the Crown was looking for. It seemed obvious to me that arson is a potentially life-threatening crime, but he had no clue of the penalty he was looking at. Unless you have that knowledge, you’re not going to be deterred.

The other factor is many of the cases we’re dealing with in the North involve people who are under the influence of alcohol. In order for deterrence to operate when you’re intoxicated, you have to have the ability – when you’re having trouble thinking anyway – to know about the consequences of something you’re going to be responding to perhaps instinctively, without thinking at all. So deterrence very, very rarely, in my experience, has anything to do with stopping criminal activity. For the most part, people who would be deterred by a criminal penalty are already people who are embarrassed to be in court. However, those are the people who look at the Criminal Code and say, ‘Yeah, this is the way to stop people from ending up in trouble, crank up the penalties,’ because it would work for them.

I don’t know anything about the facts of Elias Schiller’s case, other than what you’ve just given me, but I can’t believe that anybody thought, ‘Oh, what sentence am I going to get if I get caught?’ I expect that once this happened they thought, ‘Oh my god, what do we do,’ and – operating from a sense of shock – tried to figure out what steps needed to be taken next.