A Review of David M. Paciocco, Getting
Away With Murder: The Canadian
Criminal Justice System
David M. Paciocco, Getting Away With Murder: The Canadian Criminal Justice
System. Toronto: Irwin Law, 1999. Pp. 417.
[Hard cover $29.95 (Cdn.)].
Reviewed by Don Stuart
Introduction
Professor Paciocco explains in his Preface that he was asked to write a book for
the public on the Canadian criminal justice system which he saw as
an opportunity to help restore credibility to the criminal justice system by
trying to persuade those who administer the system of justice to change things
that anger the public but which are not indispensable to criminal justice, and by
explaining to those who are not in the system why people get away with
murder and other crimes.’
David Paciocco succeeds admirably in meeting his aims. He has produced a
sparkling book that has a number of thought-provoking ideas for reform of the
criminal justice system. He also offers a host of insights to the hostile, sceptic, or just
curious Canadian who would like to know how criminal lawyers justify the system in
which they work. This book should be prescribed reading for politicians of all stripes,
and Ministers of Justice and Attorneys-General in particular.
Paciocco is one of Canada’s very best criminal law scholars and writers, and he
has also gained respect in the courtroom both as Crown and as defence counsel. This
book, although long, is lively and entertaining. His humour is evident from the very
first page of the Preface He recounts telling his wife that he likely had a fine balance
Faculty of Law, Queen’s University, Kingston, Ontario.
McGill Law Journal 1999
Revue de droit de McGill 1999
To be cited as: (1999) 44 McGill L.J. 1049
Mode de rf&ence: (1999) 44 R.D. McGill 1049
D.M. Paciocco, Getting Away With Murder: The Canadian Criminal Justice System (Toronto:
Irwin Law, 1999) at ix.
2 Ibid.
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D. STUART – THE CANADIAN CRIMINAL JUSTICE SYSTEM
[Vol. 44
to examine the system since he was considered too liberal by prosecutors and too
conservative by his defence colleagues. He reports that his wife gently pointed out
that this might simply indicate that no one agreed with him! He ends the introductory
chapter by hoping that his book “may also help to move lawyers up a few notches on
the favourite species list, perhaps even past the common ground slug.” ‘
His language is crisp and often robust-sometimes too robust. Consider these
examples. In warning that “reconciliation” for serious crimes is a “rose-coloured
fantasy”, he adds, “[p]atting the likes of Clifford Olson on the head and saying
‘Rejoin the community, Cliff,’ is like trying to pet a frothing dog.”‘ In speaking of
legislation that died on a tie vote in the Senate he writes that “[h]ad one senator
forgotten to take his prunes that day, his cramps might have kept him from his vote
and we might today have legislation.”‘
I. The Crisis of Public Confidence
There are seventeen chapters loosely grouped around six major themes identified
with overly jazzy titles such as “Getting Off On Technicalities: The Rule of Law.’ His
central thesis is introduced in the first chapter on “The Credibility Crisis”, to which he
returns in the concluding Chapter 17. The main argument is that there is a pervasive
lack of public confidence in the criminal justice system because of widespread
perceptions that there are too many acquittals, that sentencing is too soft, and that the
system is not protecting citizens from crime.
Paciocco blames the news media for concentrating on the sensational stories.
However, he tempers his criticism based on the acknowledgement that the media are
in the news business and are not agents of the administration of justice.’ He also
singles out the police for some responsibility for the crisis in public confidence. While
his experience is that most police officers are honest and committed professionals, he
is of the view that there is a significant minority of officers whose lack of competence,
bad judgment, or deliberate disrespect for Charter? values results in acquittals.’ Much
of the crisis in confidence is seen to rest with politicians who too readily turn law-and-
order issues and public fear of crime to their own advantage or simply adopt the
expediency of silence Paciocco also identifies a major reason for the drop in
confidence to be the failure of lawyers and judges responsible for administering the
system to provide information to show that the system is not failing, and that it is one
which Canadians should be proud of.
‘Ibid. at 15.
‘ Ibid. at 39.
‘Ibid. at 101.
‘ ibid. at 6.
‘ Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B
to the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter Charter].
‘ Supra note 1 at 6-7.
‘Ibid. at 7-8.
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Although Paciocco sees misunderstanding as the major problem, he also finds a
significant contributing cause to the crisis to be that those within the system have been
making promises that cannot be kept. We need to be more honest about what can be
achieved. David Paciocco advocates three major sets of change:
(1) Criminals, particularly those committing crimes of violence, must be
to the harm done. It is not enough to try and
punished proportionate
rehabilitate or reconcile with them. We also have to stop letting prisoners out
on parole.'”
(2) We have to put a higher premium on rules of evidence that help discover the
truth. Reliable evidence should only be excluded where absolutely necessary,
in order to promote a higher public good.”
(3) We have to be cautious about the criminal conduct we choose to excuse. We
have to resist the temptation to define more and more crimes as pathological,
and be cautious, if not sceptical, about behavioural scientists wanting to
explain away crime as beyond the offender’s control. We have to be
particularly cautious not to sacrifice accountability on the “altar of diversity,
cultural sensitivity or sexual politics.””
I will now consider separately each set of ideas. In each case, I will provide
further details of Paciocco’s views as he develops them in subsequent chapters and
will offer critical assessments of my own.
A. Proportionate Punishment
On the issue of punishment, the author comes out swinging in favour of the need
to see the aim of punishment to be retribution. In Chapter 2, “In Defence of the Need
to Punish:’ one of the significant causes of the lack of public credibility in the system
is seen as our inability to admit that most crimes, particularly violent crimes, cannot
be reduced by sentencing. Paciocco reviews the empirical data on general and specific
deterrence and finds it wanting. The notion that sentencing can rehabilitate is seen as
largely a myth. What is needed is less false claims about protecting society, and more
honesty about the role of punishment as largely retribution for harm done:
We punish people who commit serious offences because they deserve it and
because we, as a society, need to know that there are consequences for criminal
behaviour. And we need the public to know that this punishment will be done
in an impartial, balanced way, with the needs of retribution and denunciation
being tempered, where appropriate, by pragmatism and compassion.”
‘0 Ibid. at 14, 390.
“Ibid.
2 Ibid. at 390.
“Ibid. at 46.
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Paciocco points out that the focus on retribution is also now the approach asserted
by the Supreme Court of Canada. What is striking about his position is that he is so
utterly dismissive of any goal other than retribution. This is startlingly apparent in
Chapter 4, “The Injustice of Parole.” He mounts a scathing attack on early release
through parole, as well as on statutory release. There is no real ability to predict
dangerousness and no resources for, or practical knowledge about, the control of
inmates once released. The public wants the sentence to mean what the judge says.
According to Paciocco, it is simply wrong to blunt the denunciatory and retributive
aspects of prison sentences, especially under the pretence of rehabilitation.” His
recommendation is to abolish both parole and statutory release, and impose shorter,
real-time sentences.”
I agree with much of this perspective but have some concerns. Retribution and
denunciation surely cannot entirely supplant other sentencing goals. It is not at all
clear why moving to definite sentencing would shorten sentences. That has not been
the experience in the United States. It may well be time to abolish the Parole Board
for the reasons the author provides. However, to abandon attempts to gradually
reintegrate inmates back to society seems counter-intuitive, potentially dangerous,
and, in any event, lacks any humanity. Paciocco really needs to share the experience
of what it is like for an inmate to be released cold turkey onto the street after years of
isolation in prison. The false promise may well be that social workers can control
inmates on release. Surely, though, there should be a variety of governmental and
non-governmental services available to assist inmates in the hope that they will not
return to crime.
When it comes to homicide, Paciocco’s position on sentencing is complex. On the
one hand, he is a hawk. With rare exceptions, intentional killers should be hit hard,
and there should also be long sentences for those committing manslaughter or driving
offences causing death.” On the other hand, with powerful discussions of the high
profile mercy-killing cases of R. v. Latiner” and R. v. Morrison,” he makes a strong
case to abolish the minimum life imprisonment sentence for murder.”
Although much of the author’s views are aimed at placating the public, it is hard
to see how his principled arguments for abolishing the minimum sentence for murder
will win over the public. The present sentence structure for murder, negotiated as the
“Ibid. at 86.
“Ibid. at 390.
“Ibid. at 15.
“(1995), 126 D.L.R. (4th) 203,41 C.R. (4th) I (Sask. C.A.), rev’d [1997] 1 S.C.R. 217, 142 D.L.R.
(4th) 577, re-trial (1997), 12 C.R. (5th) 112, 121 C.C.C. (3d) 326 (Sask. Q.B.). The subsequent case
law developed after the time of writing: (1998), 131 C.C.C. (3d) 191 (Sask. C.A.), online QL (SJ),
leave to appeal to S.C.C. granted [1999] S.C.C.A. No. 40, online: QL (SCCA).
‘S [1998] N.S.J. No. 75 (Prov. Ct.), online: QL (NSJ).
“Supra note 1 at 53-59.
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price for the abolition of the death penalty, is highly unlikely to get softer in the
foreseeable future.
Paciocco’s views on sentencing appear to lack a broader context. He is specific on
homicide but does not have a clear position on sentences of other violent offenders.
What does he recommend, for example, in the case of sentences for sexual assault?
What does he think of minimum sentences in general? It is one thing to focus on
violent offenders and call for retribution. That is not really controversial. The real
sentencing dilemmas occur in the sentencing of non-violent offenders. The author has
little concrete to offer here.”
B. The Search for Truth
On his second major theme that the criminal justice system should put a higher
value on truth, Paciocco is particularly provocative. Large parts of his book are
eloquent defences of the status quo. He provides a fine exploration of the history and
justification of the rule of law2′ and is at pains to justify the presumption of innocence
and standard of proof beyond a reasonable doubt, especially in the emotive context of
sexual assault.2
He is, however, inconsistent on the issue of exclusion of relevant evidence.
Chapter 9 justifies many common law rules of exclusion on the basis that there are
sometimes more compelling reasons of policy than getting at the truth or because
experience has shown that the particular kind of proof being offered is likely to stand
in the way of accurate decisions.’ This leads him to stout defences of the rule that
involuntary confessions should be excluded as “garbage” in order to guard against
unjust convictions. The same rule should apply with evidence of bad character and
similar-fact evidence showing that the accused is the sort of person likely to have
committed the crime charged. 4 However, when he comes to the exclusion of evidence
under the Charter in Chapter 10, “Abandoning the Search for the Truth” Paciocco
launches a blistering attack on the Supreme Court’s interpretation of section 24(2)
under which there is a virtually automatic case for the exclusion of evidence obtained
by a Charter violation where the accused is conscripted against himself by the State.”
He excoriates the Court for excluding such evidence in the high-profile murder
investigations in R. v. Feeney” and R. v. Burlingham.2 In Burlingham, where the
police interrogation was a major violation of the accused’s right to counsel, Paciocco
supports the automatic exclusion of the induced confession at common law but not
,Ibid. at 60-65.
22 Ibid. at c. 5.
22 Ibid. at c. 8.
“Ibid. at 203.
24 Ibid. at 203-204.
2i Ibid. at 229-94.
[ 1997] 2 S.C.R. 13, 146 D.L.R. (4th) 609. This case is discussed in c. 6.
22 [1995] 2 S.C.R. 206, 124 D.L.R. (4th) 7 [hereinafter Burlinghamn].
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the Court’s further ruling that the confession that lead to the finding of the gun by the
accused had also to be excluded under the Charter.
It seems ironic that the very David Paciocco who wrote a book on expanding self-
incriminating protections under the Charter ” would here take such a strong position
against such protections. Many writers-including this one-and many judges also
oppose an automatic exclusion interpretation under section 24(2). However, it is
surprising that Paciocco does not recognize the strength of the policy counter-
argument that if Charter rights are to be taken seriously, there must be a real risk of
exclusion of evidence obtained in violation of the Charter, even in serious cases and
even at the cost of determining the truth. Nowhere in this powerful part of the book is
there any comment on the strong trend toward the inclusion of non-conscripted
evidence obtained in violation of the Charter. This is a trend which certainly risks
reducing Charter standards to empty rhetoric, especially in drugs cases?’
C. Excusing Certain Conduct
The author’s third major theme, that we should be cautious about the criminal
conduct we choose to excuse, emerges from Chapters 11 to 15. These include detailed
explanations and discussions of the substantive defences of necessity, duress,
provocation as a partial defence to murder, insanity, intoxication, and automatism.
Although the detail and insights will be fascinating to writers on the positive law,
lawyers, and first-year law students alike, I wonder whether there may be here too much
to keep the attention of the general reader. Paciocco tends to take a rather conservative,
pro-Crown stance on many of these issues. This may well be because much of his
discussion occurs in the context of homicide. The reality of a death should and does
make triers of fact and lawmakers wary of outright acquittal. However, defences such as
necessity and automatism have roles to play in far less troubling contexts.
The most provocative theme to emerge from this lively account of defences is the
author’s strong pitch against what he sees as tendencies
to allow pathological
explanations and to rely on pseudo-scientific expertise. Nowhere is this more evident
than in Chapter 14, “The Abuse Excuse, ‘Psychobabble’ and the Protection of Basic
Values.” He sets out to “trash” the Supreme Court’s reliance on the “battered women’s
syndrome theory”
in the context of self-defence claims advanced by women in
abusive situations
because it is a prime illustration of what is known in the literature as “junk
science:’… In truth, it is little more than public interest advocacy dressed in the
imposing garb of “study,’ experimentation, and psychobabble. It is a pious fraud,
permitting “scientists” to come before courts as experts who claim the exclusive
ability to divine what battered women who kill are really thinking. It is a theory
D.M. Paciocco, Charter Principles and Proof in Criminal Cases (Scarborough: Carswell, 1987).
See further D. Stuart, “Eight Plus Twenty-Four Two Equals Zero” (1998), 13 C.R. (5th) 50.
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constructed on a flawed edifice, and continued resort to it in our courts is
imperilling justice.’
Paciocco sees the invocation of battered women’s syndrome as nothing more than
resort to an unreliable stereotype that may lead to defences where there was no true
act of self-defence, deny proper defences to women who do not fit that model of
battered women, and threaten the fairness of applying the law to men who kill their
partners.” Other writers, many of them women, have raised similar concerns about the
reliance on “battered woman’s syndrome”, as have L’Heureux-Dub6 and McLachlin
JJ. in their recent comments in R. v. Malott.’2 Few, if any, have been as trenchant or
blunt as Paciocco.
II. Victim’s Rights
Regrettably relegated to Chapter 16, “The Sad Truth about Victims’ Rights” is
one of the most important contributions in the book. There can be no doubt at all that
a dominant theme of the 1990s in public discourse about our criminal justice system
is that accused have too many rights at the expense of the rights of victims. Paciocco
confronts this concern in an absorbing and careful analysis.” He provides a most
careful assessment of the history of moving from a victim-based compensation
system to one of a state-based system of justice, and expresses grave concerns about
some of the claims for victims’ rights that would return us to the earlier model. He
warns that the role of the Crown Attorney must be kept separate from that of
representing victims because prosecution powers must be exercised in the interests of
justice rather than in the interests of trial tactics or the pleasing of victims. He sees no
role for allowing victims to participate at the guilt phase of the trial or in plea
bargaining, and he identifies risks in participation through written impact statements
at sentencing. Moves to compensation and dispute settlement may reduce the impetus
for just punishment. He worries about the uncertain move to constitutionalize rights
for victims at the expense of fundamental trial rights for accused. Finally, he points
out that a justice system cannot spare victims the indignity of being doubted since the
reality is that not all those who claim to be victims are actually victims.
Conclusion
This is a most stimulating and informative book. I highly recommend it to anyone
interested in the complex and controversial picture of the Canadian system of criminal
justice.
30Supra note I at 306.
‘ Ibid. at 308-10.
[1998] 1 S.C.R. 123 at 139-145, 155 D.L.R. (4th) 513.
33Supra note I at 353-82.
