Analysis

Winnipeg Free Press - PRINT EDITION

Courts don't yet get it

By: Christie Blatchford

Posted: 03/23/2012 3:17 AM | Comments: 0

As provincial court Judge Catherine Carlson said Tuesday as she passed sentence on former junior hockey coach Graham James for his prolonged sexual attacks on former National Hockey League star Theo Fleury and his cousin Todd Holt, "There is no sentence this court can impose that will give back to Mr. Holt and Mr. Fleury that which was taken by Mr. James."

True that, but wouldn't it be nice if just once in a while a judge gave it a whirl?

Carlson sent James back to jail for a whopping two years, but of course, like all inmates, he'll be eligible for passes and day parole after serving six months and full parole after eight months.

That's for hundreds of acts of sexual abuse over many years committed against two trusting young teens, as Fleury and Holt then were, who were first in James' thrall and then firmly under his control.

Much the same thing happened in 1997, when James pleaded guilty to sexually assaulting two other boys he was coaching, including former NHLer Sheldon Kennedy: Again, the offences ran into the hundreds, the days ran into years, the abuse was physical but also a grotesque betrayal of trust, and the sentence was three and a half years, of which James served about 18 months.

Carlson released her reasons -- chiefly, the principle of totality (which required her to take into account James' earlier sentence and the fact that the current assaults dated from the same time period) and all the decisions by other judges which came before hers.

Common sense is not so constrained or constipated, and it is that which can separate the law from public opinion.

There's a recent case from the Ontario Court of Appeal which nicely illustrates this chasm.

The case is known by its initials to protect the young victim, R versus P.M., a man who over the course of a year had forced anal and vaginal intercourse with his daughter, who was 13 and 14 at the time, and who also videotaped and photographed some of the assaults, keeping the images among his vast collection of child pornography.

During two of the videos, the appeal court noted, "the victim is heard to repeatedly beg her father, 'Daddy please stop!' "

He replied, "Shut up" and "Shut the f up."

Now at trial in the fall of 2010, Ontario court Judge Stephen Hunter imposed a sentence of five years for the various assaults (P.M. pleaded guilty to sexual assault, incest, sexual interference, making child porn and possession of child porn), a year consecutive for the child porn offences, and six months concurrent for firearms offences, adding up to a total sentence of six years (minus, of course, 22 months credit for 11 months of pretrial custody).

The Crown appealed, on two grounds -- one the lightness of the sentence itself, the other on the judge's failure to view a disk showing the commission of some of the sexual offences Daddy dearest had thoughtfully videotaped.

Hunter, unbelievably to my mind, refused to view the disk in part because the victim (who, with her mother, was supportive of P.M.) was in court. He sought her opinion of whether the disk should be played, and unsurprisingly, she didn't want it to be. Hunter said he'd been counsel previously for a children's aid society and had been on the bench for almost 20 years and had "viewed countless videos of a similar nature" and thus he didn't need to see this one to understand the impact of what the father did. He also said the prejudicial effect of the viewing to the victim far outweighed the probative value to the court.

Two judges of the appeal court, the author Marc Rosenberg and James MacPherson, found the sentence "was a lenient one and at the bottom end of the range," and the one-year sentence for the child pornography offences "standing on its own would have been inadequate." But apparently, added together, as a global sentence of six years, judicial math rendered it "lenient but it was not clearly inadequate."

One line in the 30-page decision stood out to me. It was about the deference appeal courts owe to trial judges and it went like this: "In my view, this functional justification applies as much to the conduct of the hearing, including the decision as to whether the prejudicial effect of the proposed evidence outweighs its probative value, as it does to the decision of quantum."

(This is just an aside, but is there anyone outside the courts who understands that? Who ever speaks like that?)

I prefer the dissenting judge, Gloria Epstein, who said Hunter should have watched the video ("the images do not only depict the crime -- they are the crime"), he could have cleared the public from the courtroom to spare the victim (she might have left herself) and without having seen it, he was in no position to assess its value.

Epstein would have imposed a nine-year sentence.

Only in the circles in which she moves would she be considered a hard-ass, but I bet she is, as Carlson would be deemed fair and reasonable, which means -- just like most of the rest of them -- curiously unwilling to acknowledge child sex abuse remains undervalued and under-punished, and unwilling, in one case, to even look at it.

"A national travesty," Todd Holt called it when he heard of the James decision. I think he's right on the money.

Christie Blatchford is a columnist

for Postmedia News.

cblatchford@postmedia.ca

Republished from the Winnipeg Free Press print edition March 23, 2012 A15

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