While it may be a more common occurrence in the specialized courts, a request for judicial monitoring as part of a conditional sentence was recently brought before the Ontario Superior Court of Justice, for what may have been the first time.
The case involved a sentencing hearing in which the defence in R. v. Piamonte asked that the offender be required to appear before the judge periodically, to monitor his progress as part of his conditional sentence. Judicial monitoring was sought by the defence in this particular situation because of the unique nature of the case, as the accused was over 50, had pleaded guilty to “an abundance of criminal activity” over a short period of time, and had responded to treatment.
“All of the elements were there to highlight the benefits of a therapeutic resolution,” said Ottawa lawyer Michael Crystal, counsel for the accused. Crystal added that judicial monitoring is not for every case.
“As my understanding it is the first time it had been asked for as part of a conditional sentence, to be an actual condition,” said Crystal.
While the approach was described as novel, the request for judicial monitoring was declined in this case, on the basis of a lack of available resources.
“In a criminal justice system where there is an abundance of resources available for this kind of sentencing, I would have acceded to the request. But in all the circumstances I cannot,” noted Superior Court Justice Robert Maranger.
“I believe that given the correct circumstances, it could be extraordinarily beneficial,” he noted, adding he’d have done it if he had the time.
“We are at the bottom end of the scale of judicial resources available for something such as therapeutic sentencing,” said Maranger.
According to Maranger’s decision, barriers to imposing judicial monitoring include the shortage of judges in the Ottawa region and the fact that the number of judges in the province has remained statistically the same since 1990. The population of Ontario as well as the Ottawa region has been steadily growing over the last 15 years.
“We also raised the notion of judicial monitoring because there is an unexplored positive dynamic to a conditional sentence where in the right circumstances, judges can be alive to the successes of an individual who is on these conditions and can engage them,” says Crystal.
“Judicial monitoring in this type of case is important, because I think that it truly allows judges to do what they’re best at, which is craft sentences which really relate and are tailored for the specific offender as opposed to the offences.”
Last year, the National Judicial Institute produced a handbook on therapeutic jurisprudence, which described the practice as “law as a healing agent,” which focuses on the law’s impact on emotional and psychological wellbeing.
“Therapeutic jurisprudence asks all judges to recognize they can be important agents of change, and to acknowledge that their words, actions, and demeanour will invariably have an impact on the people who come before them in the courtroom,” said the handbook.
The document found that while therapeutic jurisprudence is more prevalent in dedicated courts, such as the drug courts, one of the most common barriers to using it in the general courts is limited resources.
Crystal agrees that judicial monitoring has already become more common in certain settings.
“The growth of specialized courts or drug treatment courts in Canada has within it an adoption of this approach and I think judges are encouraged by that and I think are open to it,” he says.
However, Cindy Wasser of Wasser McArthur LLP, chairwoman of the criminal justice section of the Ontario Bar Association, says she does not see judicial monitoring becoming more prevalent.
“I just don’t understand how it would actually occur. It’s a complicated procedure to ask judges to suddenly become involved in the day-to-day well being of people and sentences and making sure that they are doing well and staying out of trouble and that entails finding out why they are getting in trouble and having the kind of psychological training that they don’t have.”
Crystal says, “At this point in time, outside of a drug treatment court where these things are formalized, the idea of judicial monitoring is really completely dependent on the facts of the case and the personality of the judge, whether or not it is something that they feel they would be comfortable with.”
He says he thinks that judicial monitoring will likely become more common but he fears it may come up against certain proposed legislative changes.
“I think it is going to grow. Unfortunately, I think it is going to butt heads with changes in legislation. I think that you’re going to find that if [bill] C-9 becomes law, the conditional sentence may be relegated to more minor offences,” he says.
In this case, Robert Piamonte had pleaded guilty to serious charges including trafficking, extortion, forcible confinement, and possession of counterfeit money.