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| Norman Douglas |
Defence counsel insist their client is “truly remorseful.” Crown attorneys are quick to point out the evidence of “lack of remorse.” Judges consider “remorse” in every case before deciding on the proper sentence.
Canadians are renowned for saying “sorry,” but are they feeling remorse?
Is there a difference? Are there degrees of sorriness?
Without googling (those of you under 70) or the dictionary (the rest of you), how would you define the word “remorse”?
Regret? Feeling guilty? REALLY sorry? Contrite?
I guess all of the above would be correct — but what judges look for more than anything else is repentance.
As a parent, when you raise your voice and say, “Tell your brother you are sorry RIGHT NOW,” and the response is a surly “I’m sorry,” does that accomplish much?
When an alcoholic or drug addict admits they are wrong and wishes they could stop, our natural reaction is, “That’s a good start, now what are your plans to change?”
Most religions teach repentance. The two-step process is:
1) to say and feel you are sorry for your sin;
2) to take action to prevent it happening again.
It is a fundamental requirement of living your faith.
When I was in the student militia back in the ’60s, we were taught to march in step. The difficult part was when the bombardier (artillery regiment) yelled at us gunners: “ABOUT-FACE!”
We had to learn to turn abruptly and march the other way. That is one definition of repentance.
Some of the lessons I learned early in my career in criminal law (pardon me while I use the language we used in the ’70s and ’80s):
Husbands who bullied, denigrated and beat their wives often professed remorse when a neighbour or one of their children called the police (The “battered woman” rarely called for help herself).
So the accused would be arrested, charged and released on bail. He immediately embarked on a mission to get his wife to “drop” the charges. We referred to this as the “honeymoon” period. Flowers, promises to change, to go to counselling, to never hit her again, to stop drinking, etc., etc.
She would then show up at the police station or Crown attorney’s office and say she would not testify. Or if forced, she would say it was all a mistake — she lied to the police — and the bruises and blood were from falling down the stairs. She would therefore “drop the charges.”
And guess what? The honeymoon period ended, and the abuse continued — and this time she had no sympathy from law enforcement because she had squandered her credibility and wasted enough of our limited resources to deal with wife abusers.
As I look back on those days, I feel deep regret but helpless to do anything now for those victims.
But times changed and so did we in the judicial system. Today I am relieved that our system of criminal justice gradually but finally did an “about-face” and changed our behaviour.
We repented, by educating our law enforcement personnel, introducing legislation changing our laws of evidence, releasing the victim from the control (and pressure) of deciding to “drop” charges, providing support for victims’ rights, introducing victim impact statements, toughening up our bail laws (believe it or not, Premier Ford), and recognizing that “domestic” assaults are the most serious on the scale of all assaults — people who are abused in their own homes have nowhere to run, and no one to rescue them.
So is there a way to discern whether someone is genuinely remorseful?
On the bench, I have heard a thousand lawyers submit that their client “suffers” from his/her remorse.
Thousands of convicted people have said, “If I could go back and change what I did, I would.”
Did I believe them? Rarely.
I was trained to look for evidence, not just accept what someone says.
What did the accused do immediately after the crime? Did he help the victim, or at least confess his guilt right away? If the crime was a property crime, did he pay for the damages (restitution is another important legal term). Did he confess to the police? Has he voluntarily changed his behaviour, gone to counselling, sought professional help, etc., without being ordered to do so by a court?
Sometimes a guilty plea is evidence of remorse. I was one of the judges who did not accept that it always was.
Most times when an accused claimed he was sorry, it wasn’t for what he had done — it was because he was caught.
Of all the criminal cases I have dealt with either as a Crown attorney or judge, there are two that stand out on this issue.
1) The first is one of the most difficult decisions I ever had to make, but I have no regrets that I might have gotten it wrong. Even when there was a public outcry at the University of Guelph, where the crime happened. I’m told there was a petition by some of the students and staff to fire me.
Would you, the reader, like to play “You Be the Judge”?
For those of you who answered yes, please read on.
An exchange student from China had a scholarship at the University of Guelph. He sexually assaulted a young co-ed while she was sleeping.
What is so difficult about that? Well, like all cases, judges need to look beyond the headlines and not jump to conclusions.
The young woman and he had been in a romantic relationship. She broke it off, but they remained friends. The following comes from the statement he gave to police the next day:
She was having a small dinner party at her residence on campus, and he was one of the guests. Later, she was feeling tired and went to bed and everyone left except him. He went into her bedroom for two minutes while she was asleep and caressed her hair and her vagina. She never woke up.
He went home and felt terrible about what he had done. He could not sleep; he called her, crying, early that morning. He told her what he had done and begged forgiveness.
What happened next comes from her statement and the notes of the investigating police officer:
She was devastated, not knowing what to do. She called her closest girlfriend, who advised her to call the police. She agonized over that but called them a few hours later. They arrested the accused, and he gave them a full statement admitting his guilt. The officer noted he was distraught, co-operative and extremely remorseful.
He came before me and pleaded guilty. He wanted to be sentenced and punished that day. I ordered a pre-sentence report from the probation office and adjourned the sentencing for a month. At the sentencing, his lawyer and the pre-sentence report emphasized that this was a unique case where lenience was called for. He had been banned from the university, lost his scholarship and would be going back to his family in China disgraced.
His remorse was genuine. Had he not confessed, no one but him would ever have known what happened. The Crown attorney read into the record the victim’s impact statement of how she had been forever hurt by this breach of trust. The public interest required a denunciatory sentence to answer any crime of violence against women.
What would you do? Why?
You may not agree with what I did or understand my thinking. It’s the first case in my book. And remorse had a lot to do with it.
2) This case I had no trouble with. Remorse was claimed, but the evidence made it clear to me there was none.
A frail 83-year-old man, first offender, was charged with writing graffiti on the walls of public buildings and washrooms in downtown Guelph.
Both the Crown and defence lawyer agreed he should not be sentenced to jail. I sentenced him to six months in jail to be followed by a probation order, including community service by washing the weekend graffiti that occurs nearly every weekend somewhere in downtown Guelph.
Why?
It’s the fourth case in my book. Here’s a hint: I called this case “The Last Nazi.”
These days I am having fun disagreeing with Premier Doug Ford whenever he attacks our judicial system. Sometimes the editors or publishers of my columns use headlines I do not agree with. I understand why they want to catch the reader’s attention, but it can make me seem like I am mocking the premier.
If you read the content, I hope you can see that I am respectful to him. After nearly 50 years in a job where I was not allowed to voice my politics, I am enjoying my retirement by being able to publicly express my views, which, by the way, are mostly conservative.
So, whenever you come across the word “remorse,” I hope you will have learned something from this little time you have spent with me.
If you have, then I invite you to come sit beside me in the courtroom in the 24 cases I have chosen from my career in criminal justice in my book You Be the Judge. Or read my columns published over the past 18 months on Law360 Canada.
Even if you do not, I hope when you are remorseful for something, or someone says they are sorry to you, that there is evidence of repentance.
Norman Douglas is a retired criminal court judge with 27.5 years of experience on the bench. His book, You Be the Judge, was published in December 2023.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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