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BLACK-SHEEP COMMENTARIES MAKE THE PUNISHMENT FIT THE CRIME Oppal’s Activism Is Welcome* The Punishment Fitting The Crime Is Sublime*(* captions by the North Shore News) ON Jan. 20, 2005, after many hours on the road, 23-year-old North Vancouver resident David Firenze was almost home. With only a few kilometers to go, he drove westbound past the Mountain Highway exit and swung up “the cut,” a tree-lined arrow-straight stretch of the Upper Levels highway; three lanes to the top diminishing to two lanes as it swings northwest past the exit to Lynn Valley Road. As Firenze reached the top of the cut he was unaware that 26-year-old Jenny Arlene Woloshyn, a drunk, driving eastbound, was on the wrong side of the divided highway. Because of the snakelike path of the highway, Firenze would have had little forewarning that Woloshyn was coming at him head-on. In an act of slack-jawed senseless drunkenness – with a blood alcohol level almost twice the legal limit – Woloshyn drove her SUV into Firenze and killed him. It was impaired driving causing death and/or dangerous driving causing death: indictable offences so serious that they have a maximum punishment of fourteen years in jail. The Crown sought a jail sentence of six years. On Jan. 10, provincial court judge Ellen Gordon sentenced Woloshyn to two years in jail, two years probation, and prohibited her from driving for 10 years. Judge Gordon said Woloshyn made a “fundamental error in judgment,” that she was “extremely remorseful and has demonstrated an ability to rehabilitate herself. She is far from being beyond redemption.” In a most unusual turn of events, Attorney General Wally Oppal directed Crown counsel to appeal and held a press conference to explain his involvement. Oppal was quoted in the Vancouver Sun: “The facts in our view were egregious, in that she had a blood alcohol level of 0.15, the legal limit being 0.08, and she was proceeding the wrong way on the freeway and caused a death. She has two prior convictions for related offences, and she was convicted of impaired driving offences in the past.” He said the sentence seems “inordinately low,” that the criminal justice system can’t be out of touch with the “public pulse” and that “accountability” is important. He went on to say that the greatest violence in society takes place on highways; that the sentence was not appropriate, and our Court of Appeal will decide whether his assessment is correct. Our attorneys general rarely step away from partisan politics and the premier’s embrace to become directly involved in the administration of justice. If ever there was a time for hands-on involvement, it is now. I believe that Oppal is uniquely qualified to do the job: he has practiced criminal law, presided over trials in our Supreme Court, and rendered decisions as an appellate judge. His most singular qualification to be an activist attorney general may be his knowledge of the criminal justice system in BC. Between 1992 and 1994, Oppal conducted a commission of enquiry into policing. His report, Closing The Gap, though never substantially implemented, remains a valid blueprint for improving policing. Oppal has given us a glimmer of hope that he will be an activist in fulfilling his apolitical duty on behalf of all law-abiding British Columbians: to infuse energy and vigour into criminal justice. Personal initiatives such as the Woloshyn appeal together with plain speaking on property crime, public safety, and violence to women will raise the moral of police and prosecutors. And if he brings about a drastic reduction in plea-bargaining, then judges will return to their proper role in sentencing. Though not an instance of plea-bargaining, the Woloshyn’s case illustrates the degree to which minimizing punishment of a perpetrator of crime can become a pseudo-ecclesiastical process. Listen again to Gordon’s assessment of Woloshyn: “She is far from being beyond redemption.” In the context of her other remarks that smacks of a fixation with the well-being of a convicted criminal. Did the soft sentence imposed by Gordon serve as deliverance of Woloshyn from a lifetime of guilt and shame for killing an innocent man? It certainly didn’t square with the horrific circumstances of the crime. It is reasonable to infer that for some considerable time before the events of Jan. 20, 2005, Woloshyn had forsaken driving with due care and attention and, as a self-indulgent drinker, was concerned only over her next drink and unconcerned over the increasing likelihood she would injure or kill someone. When she got into her car with a blood alcohol level twice the legal limit and drove away, Woloshyn knew how wrong it was and that it put others at risk. It was not a fundamental error in judgment – it was an act of moral turpitude that became a homicidal act for which she should have been punished with a sentence measured against the facts of the case: in the least, within shouting distance of the maximum sentence of fourteen years and certainly not a mere two years. Gordon imposed a legal sentence that serves only the well-being of Woloshyn; a sentence that is no deterrent to her or other like-minded drinking drivers; a sentence that is cruel to the Firenze family. Let me give you the thinking of a judge from a forgotten generation. In 1963, M. L. Tyrwhitt-Drake, an erudite man, a veteran, newly appointed a judge of the county court, addressed a conference of magistrates, now our provincial court judges. “A magistrate is the person who actually deals with society in the raw, and he applies to it that body of rules which common consent has provided as the standard by which individual conduct in a society is to be regulated; in short, the criminal law. “The criminal law, as a body of rules of conduct, is not very much heard of these days. There is a lot of talk about social justice, an all-embracing term which is, as far as I can see, a semantic impossibility. There is justice, and there is not. The word needs no adjective. And it is with justice that we are all concerned. … “Times change, but I say, with the greatest respect for those who evidence a contrary opinion, that justice does not. It is an absolute virtue and consequently an extremely simple one. The achievement of it, though, is a very different matter, and that, of course, is our object all sublime, which we must all have.” Tyrwhitt-Drake’s use of the phrase “our object all sublime” was not accidental – it is from The Mikado by Gilbert and Sullivan. “My object all sublime I shall achieve in time – To let the punishment fit the crime – The punishment fit the crime.” It’s up to you Mr. Oppal – tuum est. * * * By way of postscript, I note another instance of ecclesiastical judging. On Feb. 24, Judge Baird Ellan reduced RCMP Const. Donovan Tait’s probation from 18 to 12 months. It is part of a dwindling down of a conviction for a May 2003 assault causing bodily harm to Asmeron Yohannes. For breaking the man’s jaw Tait received a suspended sentence and probation. Yet even before his sentence is over Tait wants to pursue other positions within the RCMP. Topping off the judicial kid-glove treatment, an RCMP internal disciplinary panel, after finding Tait had brought discredit to the force, administered a pro forma reprimand and docked him eight days’ pay. The RCMP is setting a terrible precedent: one free assault before you’re fired. The judgment of the court and the decision of the board reflect the diminishment of inhibition in our society: self-discipline and restraint, as absolute requisites for police, seem beyond the ken of both bodies. Wallace G Craig – wallace-gilby-craig@realjustice.ca – NS News – March 08, 2006 |
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