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BLACK-SHEEP COMMENTARIES
THERE ARE NO MAXIMUM
SENTENCES WILLARD (Bud) Estey, a judge of the Supreme Court of Canada from 1977 to 1988, died in January 2002, at age 82. Estey’s obituary included a tribute by retired Chief Justice Antonio Lamer. “After leaving the high court following an 11-year stint, Estey was ‘not shy’ about speaking out on issues of the day, recalled Lamer . . . “Indeed, Estey once claimed in a newspaper interview that the death penalty was not too harsh for terrorists who had a callous disregard for human life. “[Estey] asserted that Canadians are becoming impatient with ‘gutless judges’ who refused to get tough with convicted criminals.” At long last we have an impatient government in Ottawa that is resonant with ordinary law-abiding Canadians; a government alive to its duty to keep thugs and thieves at bay; a government that is moving quickly, according to the National Post, to “toughen sentencing laws, vowing that the days of cushy house arrests and weak jail terms for criminals are over in Canada.” A range of mandatory minimum sentences will be included in pending legislation. Let there be no misunderstanding. Members of parliament have been forced to legislate sentencing minimums because too many of the current generation of boomer judges have mulishly refused to impose even modest penitentiary terms – a practice worsened by ecclesiastical dispensation of conditional sentences and rubber-stamping of plea bargains. If not plain mulish, then judges must be living and working in seclusion, sequestered from life in the raw and out of touch with the man on the street. Judges have become overly receptive to pleas of convicted criminals, not for mercy, but for renewal through the sterile logic of an otherworldly process labeled restorative justice. That’s not real justice – it’s chicken-and-feathers justice. Chicken for the laughing crook; a mouthful of feathers for his traumatized victim. By directing the office of Crown counsel to appeal the sentence in Regina vs Woloshyn, Attorney General Wally Oppal has taken a very important first step on behalf of victims of crime. Yet many more steps must follow. Mr. Attorney – the buck stops on your desk! Unleash your impatience; stop expedient plea-bargaining, and direct appeals of all sentences that fit the Woloshyn mold. Here’s a North Vancouver case in point: Regina vs David Brian Skidmore. As reported in the North Shore News, Skidmore pleaded guilty on April 28 to two charges of dangerous driving causing bodily harm – an indictable offence carrying a maximum jail sentence of 10 years. Associate Chief Justice Patrick Dohm sentenced Skidmore to 20 months of house arrest and prohibited him from driving for three years. On March 10, 2000, Skidmore ran a stop sign at 17th Street and St. Georges Avenue in North Vancouver and struck two young women – Jennifer Donahue and Jackie Brady – both 19 at the time. The young women were seriously injured. After recovering from surgery they endured short-term memory loss, dizziness and emotional problems of anger, depression and inability to concentrate. That ICBC paid Donahue $325,000 and Brady $1.4 million demonstrates the magnitude of their injuries. Skidmore, a moral coward, drove away without assisting two badly injured young women. Then, with the assistance of others, Skidmore did his utmost to evade detection including hiding his car in a barn on his parents’ property in Langley. It took the North Vancouver RCMP and a private investigator hired by the girls’ families several years to find Skidmore. Surely in all of this evasion there ought to have been charges of obstruction of justice against Skidmore and those who aided him. In spite of the horrific circumstances of this hit-and-run and callous abandonment of two badly-injured young women – characterized by Skidmore’s lawyer as “out of fear and self-interest and to some extent panic” – Judge Dohm said sending Skidmore to jail would “serve nobody’s real interests.” That is pure nonsense. This repugnant sentence of house arrest was cruel to Skidmore’s victims and must have shattered their expectation of justice; it offends the public interest by failing to uphold the absolute requirement that drivers involved in accidents must remain at the scene and assist anyone who has been injured; and of itself it was an injustice that breeds cynicism and lessens respect for the judiciary and the role of Crown counsel in the proceedings. After court, Donahue’s mother, Deborah, spoke for all of us when she said that what bothered her most of all was “this attitude that if you don’t own up and you turn your face away and you have enough money and lawyers you can get away with anything. It was very damaging for the girls – it was like they didn’t count.” Skidmore’s criminal behavior warranted a penitentiary sentence, not a muddle-headed conditional sentence of house arrest. The case cries out for action by the Attorney General – to intervene as he did in the Woloshyn case. In my March 8 column I applauded the attorney general for directing an appeal of a sentence of two years imposed by Judge Ellen Gordon on Jenny Arlene Woloshyn. Drunk and driving the wrong way on the Upper Levels Highway, Woloshyn crashed head-on into David Firenze and killed him. I said she was guilty of an act of moral turpitude that became a homicidal act for which she should have been punished, in the least, within shouting distance of the maximum sentence of fourteen years and certainly not a mere two years. On May 4 a panel of three appellate judges ruled that Woloshyn’s two-year sentence was too light and imposed a four-year sentence intended to send a message condemning impaired driving. When measured against a maximum 14 years, the court’s message is, in point of fact, a spent message. Justice Catherine Ryan asked, rhetorically, “What excuse can there be for driving drunk? …That is why the community is outraged.” Oppal’s reaction to the decision: “One of the challenges I see in this ministry is the lack of confidence people have in the justice system. I thought it was important to appeal this case. I thought the sentence was too low given the circumstances of the event” (Vancouver Sun – May 5). Only at first blush is the appellate sentence of four years appropriate. Pause for a moment. Remember that the maximum sentence is 14 years. Then consider this hypothetical: If Judge Gordon had imposed a sentence of four years, would it have been as inadequate on the facts and circumstances as two years and, equally, a case for appeal? Lurking behind the four-year sentence imposed by the court of appeal are sentencing guidelines – a careful judicial disavowal of maximum sentences in the Criminal Code. It is a neutering of maximum sentences – reducing them by half. In the offence for which Woloshyn was convicted the sentencing range was likely five to seven years. The appellate judges must have considered Woloshyn a worst case. Yet they imposed only four years, curiously close to their guidelines but a country mile from the maximum 14 years in the Criminal Code. Appellate guidelines that shrink the legislated range of jail sentences available to trial judges constitute a judicial fiat undermining the will of the people as expressed by parliament. As such they are illegitimate in a society that purports to be a democracy. Wallace G Craig – wallace-gilby-craig@realjustice.ca – NS News – May 10, 06 |
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