Strange Decisions in our Criminal Courts

Judges have difficult jobs and criminal judges, dealing with issues of personal liberty, may have even more pressure on them than others.

When I was in law school, we were taught that the purpose behind incarcerating wrongdoers had to do with rehabilitation and not revenge.  For at least that reason, in our society, decisions as to sentences are made by an impartial judge without formal input from the victim or the victim’s family.  This basic principle, with which many people seem rather unfamiliar, gives rise to outrage when sentences are passed that appear shocking. 

Still, there is a limit to everything.  The recent sentencing of Graham James, convicted pedophile, to incarceration for two years (with parole possible within a matter of months) is truly difficult to understand.

As anyone following this story will know, James sexually assaulted teenage hockey players including several who subsequently overcame the trauma to the extent that they became NHL players.

Notwithstanding the fact that he was a repeat offender, on March 20th, he was sentenced to two years in prison after having pleaded guilty to two such assaults.  The Crown had asked for a sentence of six years, and the Defence had asked for a conditional discharge.

Unfortunately, a brief review of other rather high profile cases of this nature indicates that a sentence in the vicinity of two years is not terribly unusual.  A number of years ago, when a former Maple Leaf Gardens employee was convicted of the same events, he received a sentence of almost 2 years, which the Court of Appeal subsequently increased to 5 years. 

The fact of the matter is that as a general rule, convictions for the sexual abuse of minors lead to sentences which most people of conscience would regard as entirely inadequate. 

Granted, in cases that inspire emotional outrage, it is hard to separate the public’s desire for revenge from the general principle of rehabilitation as the motive for incarceration but surely the lifelong debilitating impact of such horrendous conduct on victims and their families should be taken into account in a more serious manner – as well as the need to keep such offenders away from the rest of society for as long as reasonably possible. 

On a different point, the Court of Appeal issued a decision on March 13th in a case called R. v. Siciliano, rectifying another criminal judge’s decision which is difficult to understand. 

In that case, the accused plead guilty to charges that included possession of stolen property and uttering a threat. 

The trial judge adjourned sentencing to another day.

In the morning of that day, the judge took a 20-minute morning break, before hearing the matter.  When the judge returned, the Crown Prosecutor was not present.  The judge advised the clerk to notify the Prosecutor that if he did not appear in court within one minute, all remaining provincial criminal matters on the list for that day would be dismissed for want of prosecution.

The Prosecutor could not be found and true to his word, the judge dismissed all of the matters on the list including that of Mr. Siciliano – even though he had already pleaded guilty and was merely there to be sentenced.

The Crown returned to the courtroom eight minutes later, apologized and indicated that he had been in his office reading a pre-sentence report that he had only just received.  The judge was not inclined to accept the apology or do anything about it.

The Crown was forced to appeal to the Court of Appeal.  The Court of Appeal found that the trial judge did not have the power to make the Order that he did and called it “illegal and an abuse of judicial authority”.  The appeal court judges characterized the judge’s actions as “high handed and … a real disservice to the proper administration of justice”.  The Order was quashed in each case and convictions were substituted based on the guilty pleas and findings of guilt.  The case of Mr. Siciliano was scheduled for sentencing once again.

The good news is that trial judges who make glaring errors in criminal matters can, from time to time, have their wrists slapped.  The bad news is that this is unlikely to happen in the case of convicted pedophile Graham James.

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