Court of Appeal decries "personal diatribes" from the bench

Recent decisions of some Courts have focused on the political and social issues underlying the criminal justice system.  Readers may remember a recent case from Sudbury where the Court sought to encourage community discussion of justice issues relating to youth and First Nations concerns.

 

Today’s decision of the Court of Appeal in R. v. Song, 2009 ONCA 896 seems to suggest that sentencing courts should focus less on policy and more on a black letter approach to the law.  Of course, such an approach is, arguably, a political statement in itself.  One recalls the analysis of Stanley Fish at Yale suggesting that all judging is, in large part, personal and policy driven – the positivist view of law is an illusion.  I suppose that is a debate for others better placed than I to decide.

 

Regardless, the Court of Appeal’s comments are worth review:

 

[13]         Whether these views have merit is a debate for another forum – one in which judges do not participate.  Personal diatribes of the nature engaged in by the sentencing judge here are unhelpful, however, and demonstrate to us a lack of objectivity that undermines the deference generally afforded to judges.  The principle of deference is not a license for the sentencing judge to defy settled jurisprudence, ignore the principles of the Criminal Code, or use his or her dais as a political podium.