Tag Archives: conditional sentences

Why Do Convicted Cops Get Lighter Sentences Than the Rest of Us?

The Crown is appealing the sentences of the former Toronto police drug squad officers who were convicted of perjury and obstruction of justice and received 45 day conditional sentences (house arrest) on January 4th of this year.

 If some members of the public reacted to the sentences with incredulity and reproach, it is understandable.

 Incredulity because, after all, perjury and obstruction of justice convictions almost always result in a custodial sentence for most people.  Why not so when police officers, whose role is to uphold the law, are the ones who intentionally mislead or lie to the court and undermine the administration of justice?

 Reproach because the judge appeared to have treated the police officers more favourably than others who are convicted of the same offences.  The judge’s sentence may send a message that police officers, at least when it comes to sentencing, will be given preferential treatment and will receive lighter sentences.

 In fact, most cases of perjury or obstruction of justice which involve lay person accused do lead to long custodial sentences. 

 In R. v. Jackson, a B.C. case, the accused initially received 7 months jail for his perjury charge.  The Court of Appeal increased that sentence to 30 months, and stated that perjury is to be treated seriously because of “its corrosive effect on the proper administration of justice.”

 In an Alberta case involving a relatively less significant case of perjury, the accused, Spath, plead guilty and received a one year jail sentence.

In another Alberta case, R. v. Corbett, a young accused forged a letter of employment for his sentencing and was charged with perjury.  His sentence on the perjury was 12 months jail.  

In a 2000 Ontario Court of Appeal case, R. v. D.(C.)., the accused received a one year prison term for perjury.  The court reinforced that perjury must carry a term of jail, because perjury “strikes at the heart of the administration of justice.”  

 In another Ontario case (R. v. Robinson), this one from 2009, a 46-year-old mother and first-time offender received 8 months for her lie to the court.   

 In a Newfoundland case where an accused, Kendall, lied under oath, the 42-year-old offender, who had no criminal record and whose pre-sentence report said that he was a suitable candidate for a conditional sentence, nonetheless received a 3-month jail term because the judge said that it would be contrary to the fundamental principles of sentencing to give someone a sentence other than jail for perjury.

 Over and over, the courts have emphasized the importance of sending a message to the public that  lying to the court is a serious offence, and that incarceration is warranted in cases of perjury in order to deter the offender and others from lying to the courts, and to denounce the act.

So why did that principle not apply to Steven Correia, Ned Maodus, John Schertzer, Raymond Pollard, and Joseph Miched? 

These (mostly former) officers were convicted of perjury or obstruction of justice, but received a mere 45 day sentence, to be served in the community, which means that they will serve their time mostly at home, with certain restrictions, and a few hours a week allotted for errands.

There are, in fact, cases where a conditional sentence has been granted for perjury.  But such cases are extremely rare.  In the 2006 Ontario case of R. v. Graham, the accused lied at her son’s bail hearing about her address of residence to help him get bail.  When the truth was quickly discovered, she was charged with perjury.  No one was harmed.  This mother of 6 had no criminal record, did not hold a position of trust (as police officers do), was in charge of an 8-year-old who had Downs Syndrome, and herself suffered from some physical ailments.  She did receive a conditional sentence, but in order to ensure that the principle of deterrence was protected, the court gave her a 15 month conditional sentence, plus 100 hours of community service. 

No short 45 day sentence for this woman.

In fact, defence council in the drug squad officers’ case provided the court with several cases where, not surprisingly, police officers had been granted non-custodial sentences for perjury or obstruction of justice.

The Crown is now asking the Court of Appeal to reconsider those 45 day conditional sentences, and to hand down tougher sentences to the officers.  The question for the Court of Appeal will be whether or not the trial judge handed down inappropriate sentences.

If the court were to follow the principle of parity and stay in line with previous cases of perjury and obstruction, it would have to change the sentences to custodial ones.  If it does not do so, the Court will likely try to carve out a niche for very exceptional circumstances where a conditional sentence may be granted, or will simply defer to the trial judge.  Either way, if the Court of Appeal does not change the sentence to a custodial one, the message that officers can get away with lighter legal ramifications will be amplified.

In reality, the judge’s humane and considered approach to sentencing these officers is laudable.  She very carefully considered the police officers’ personal histories, the traumatic impact of the charges on their lives and their families’ lives, and their emotional and psychological states.

 The problem is that we don’t seem to take the same humane, empathetic approach to other offenders who are not officers.

 In a more equitable world, every accused, through his or her lawyer, would have the resources, the skill, and the ability to paint a sympathetic picture of the accused’s suffering in the criminal justice system and the negative and emotional impact of the charges on his life.  Every judge would be able to relate to the accused person, and, while condemning the accused’s actions, would take note of the traumatic effects of the being accused of a crime and the potentially dangerous and horrible effects of being jailed. 

 The result would be less jails and possibly a more effective and humane criminal justice system.

 Alas, we are not ready for that.

 

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The Conservatives’ Push to Incarcerate the “Mentally Ill”

Say one thing, do the opposite.  That sums up the Canadian government’s approach to the treatment of the mentally ill in the criminal justice system.

“(I)ndividuals with mental health issues do not belong in prisons but rather in professional health facilities.”  Those were the promising words of the Minister of Public Safety, Vic Toews, in the House of Commons on Thursday, November 8, 2012.  He made this sweeping and dramatic claim in the wake of the release of the Ashley Smith videos, which portrayed her horrendous and inhumane treatment while she was in custody.

Toews’s comments might give an observer hope – hope that soon we will stop putting people with mental health problems in jails.

But in reality, the actions of the federal government lead to a different, bleaker conclusion, because every new criminal law and bill that has been introduced by the current government increases both the number and the length of the stay of mentally ill people in our prisons.

The most recent venture was announced on November 22, 2012.  In the new year, the Conservatives intend to introduce a bill that will ensure that persons who suffered from a major mental disorder at the time of the commission of a crime stay in custody longer.

In our courts, a person who is found to have been suffering from a major mental disorder at the time of the commission of the crime may be declared to be to be “not criminally responsible,” or NCR, by the courts if this person was unable to “appreciate the nature and quality of his actions” at the time of the offence.

People who are found NCR receive an indefinite sentence.  Once a bed in a mental health institution becomes available, then that person is transferred from a jail to that institution to serve their sentence while receiving treatment.  A panel of experts then annually reviews the inmate’s progress to determine if her mental illness is under control, and if it is safe to release her.

The Conservative government proposes to both decrease the frequency of these reviews and to change the standards so that it is harder to release a person, even if they are deemed safe.  As a result, people who have been found NCR but do not pose a threat will spend more time in the already scarce spaces of our mental health institutions.   That will mean more people with mental health illnesses will spend a longer period of time in jails, awaiting access to an overburdened mental health facility.

This proposal is directly aimed at people with mental health problems.  Despite that, it will not be the worst offender for putting the mentally ill in jail.  A string of other laws previously enacted by the current government have already exacerbated the situation.

Take, for example, the supposed “Truth in Sentencing Act” of 2009, which restricted a judge’s ability to give more than 1:1 credit for pre-trial custody when counting how much time a person should spend in jail upon conviction.  Before this legislation, lack of mental health services and unacceptably restrictive conditions in pre-trial detention (such as lengthy solitary confinement, prolonged and ongoing lock-downs, unavailability of doctors, therapists, or medication, and toilets overflowing in overcrowded cells) could be considered by a judge to reduce the amount of time a person ultimately serves in prisons.  The law, however, radically removed this discretion from judges, effectively forcing longer sentences on all people, including the mentally ill who, in the well-informed opinion of the judge, would be better rehabilitated in the community.

Worst yet are the mandatory minimum sentences, which came into force earlier in November of this year.  Mandatory minimums force judges to impose a minimum jail term, even where they might believe that a jail term or a lengthy jail term would be detrimental to a person’s mental health, his rehabilitation or reintegration.

And yet another law, which came into force on November 20, 2012, eliminates conditional sentences (also known as house arrest) for a wide range of offences, including non-violent ones such as theft over $5000.00, motor vehicle theft, and breaking and entering.

Conditional sentences have traditionally been used not only to reduce the high cost of imprisonment, but also as a valuable tool for enabling rehabilitation and reintegration of offenders, and as a means of keeping families whole, ensuring that people can continue their employment and to receive the kind of support that will improve their mental health.  The elimination of conditional sentences means that more people with mental health problems will stay in jail longer.

At anytime, 25-40% of the incarcerated population suffers from a mental disorder.  These health problems cannot and will not be remedied in jail.  On the contrary, the mental health of these people will often be more acute than before they entered state custody.  But our government ignores the victimization of the mentally ill and the cost to society, and persistently makes laws that incarcerate more people with mental health problems for lengthier periods of time.

Ultimately, our government says one thing when the spotlight is on the suffering of people with mental illness, and does quite the opposite when it comes to legislative action.

In other words, people with mental health issues may not belong in jail, but that’s where they’re going.

There is little to no logical connection between the government’s words and their actions.

They do not seem to appreciate the nature and consequences of their actions.

It seems that our legislators could use a good dose of medication and therapy.

But I won’t recommend jail.

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November 30, 2012 · 10:04 pm