The courts are on a collision course with the federal government over its belief in minimum mandatory sentences that provide judges with no discretion.
A Victoria Provincial Court judge on Monday became the latest jurist to bristle at having his hands tied and his compassion stifled.
In a child pornography case, Judge Robert Higinbotham said he was convinced the defendant didn’t deserve 45 days in jail for possessing 25 sexually graphic images involving minors.
“In the circumstance of mandatory minimum sentences, I have no choice but to sentence [Edward] Grindlay to jail,” Higinbotham said.
“If I had a choice, I would not. I think this is one of those cases where taking discretion out of the hands of judges results in an unfit sentence.”
It seemed a pretty big hint to the former tow-truck driver in the prisoner’s dock that he launch an immediate appeal.
Grindlay pleaded that three years ago he was searching for sexually explicit adult material when he inadvertently downloaded the child porn.
“I accepted the argument that curiosity was at play here,” the judge emphasized — this was not sexual predatory behaviour.
But Grindlay was guilty and Higinbotham was forced to inflict the stipulated punishment.
This is the kind of injustice decried by those opposed to these legislated sentences, which ignore individual circumstances in favour of a severe, one-size-fits-all approach.
Judges in Ontario have already thrown down the gauntlet and challenged Ottawa over this facet of the Tory tough-on-crime strategy.
In February, an Ontario Superior Court judge refused to impose a mandatory three-year sentence on a man caught with a loaded handgun.
Justice Anne Molloy struck down the compulsory term as cruel and unusual punishment and instead sentenced the 30-year-old to a year of house arrest.
She concluded the Toronto man with no criminal record had merely been an idiot striking a “cool” pose for his Internet profile when police happened to burst into an apartment on March 9, 2009, in search of another man.
Earlier, that same bench ignored a similar mandatory provision.
Yet the federal Conservatives continue to insist the draconian laws are an essential policing tool.
The Tories maintain these sentencing provisions were necessary to restore the proper balance and public confidence given a too-lenient judiciary.
That, however, is right-wing mythology and has riled a lot of judges from coast to coast. They agree with the goal of deterrence but not at the cost of destroying deserving individuals over a lapse of judgment.
Especially when the evidence suggests the cost of these measures is exorbitant and the community is better served through education, social and health spending.
In the U.S. mandatory minimum sentences began to be adopted in the 1980s and the data show they were a recipe for exploding prison populations and skyrocketing corrections costs.
In 1986, when the controversial laws started to come into effect, about 36,000 people were locked up in U.S. federal prisons; now there are about 200,000.
Their effect on crime rates, which have been falling across the continent for more than a decade, is arguable.
Eric Sterling, one of the lawyers who helped draft the U.S. mandatory minimum laws a quarter century ago, says they didn’t work.
He and two dozen former judges and other American criminal justice professionals urged Canada to avoid making the same mistake while Parliament was debating the Safe Streets and Community Act.
But the federal government didn’t listen to the blue-ribbon group; it’s unlikely to give an ear to judges they consider soft on crime.
No, we’re headed for a collision — this is a slow moving ideological car crash headed for the Supreme Court of Canada.
Original Article
Source: vancouver sun
Author: Ian Mulgrew
A Victoria Provincial Court judge on Monday became the latest jurist to bristle at having his hands tied and his compassion stifled.
In a child pornography case, Judge Robert Higinbotham said he was convinced the defendant didn’t deserve 45 days in jail for possessing 25 sexually graphic images involving minors.
“In the circumstance of mandatory minimum sentences, I have no choice but to sentence [Edward] Grindlay to jail,” Higinbotham said.
“If I had a choice, I would not. I think this is one of those cases where taking discretion out of the hands of judges results in an unfit sentence.”
It seemed a pretty big hint to the former tow-truck driver in the prisoner’s dock that he launch an immediate appeal.
Grindlay pleaded that three years ago he was searching for sexually explicit adult material when he inadvertently downloaded the child porn.
“I accepted the argument that curiosity was at play here,” the judge emphasized — this was not sexual predatory behaviour.
But Grindlay was guilty and Higinbotham was forced to inflict the stipulated punishment.
This is the kind of injustice decried by those opposed to these legislated sentences, which ignore individual circumstances in favour of a severe, one-size-fits-all approach.
Judges in Ontario have already thrown down the gauntlet and challenged Ottawa over this facet of the Tory tough-on-crime strategy.
In February, an Ontario Superior Court judge refused to impose a mandatory three-year sentence on a man caught with a loaded handgun.
Justice Anne Molloy struck down the compulsory term as cruel and unusual punishment and instead sentenced the 30-year-old to a year of house arrest.
She concluded the Toronto man with no criminal record had merely been an idiot striking a “cool” pose for his Internet profile when police happened to burst into an apartment on March 9, 2009, in search of another man.
Earlier, that same bench ignored a similar mandatory provision.
Yet the federal Conservatives continue to insist the draconian laws are an essential policing tool.
The Tories maintain these sentencing provisions were necessary to restore the proper balance and public confidence given a too-lenient judiciary.
That, however, is right-wing mythology and has riled a lot of judges from coast to coast. They agree with the goal of deterrence but not at the cost of destroying deserving individuals over a lapse of judgment.
Especially when the evidence suggests the cost of these measures is exorbitant and the community is better served through education, social and health spending.
In the U.S. mandatory minimum sentences began to be adopted in the 1980s and the data show they were a recipe for exploding prison populations and skyrocketing corrections costs.
In 1986, when the controversial laws started to come into effect, about 36,000 people were locked up in U.S. federal prisons; now there are about 200,000.
Their effect on crime rates, which have been falling across the continent for more than a decade, is arguable.
Eric Sterling, one of the lawyers who helped draft the U.S. mandatory minimum laws a quarter century ago, says they didn’t work.
He and two dozen former judges and other American criminal justice professionals urged Canada to avoid making the same mistake while Parliament was debating the Safe Streets and Community Act.
But the federal government didn’t listen to the blue-ribbon group; it’s unlikely to give an ear to judges they consider soft on crime.
No, we’re headed for a collision — this is a slow moving ideological car crash headed for the Supreme Court of Canada.
Original Article
Source: vancouver sun
Author: Ian Mulgrew
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