Winnipeg Free Press - PRINT EDITION

Judge's ruling in child-porn case was correct

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In a rare bout of judicial candour, provincial court Judge Robert Heinrichs drew on his Mennonite background to give 58-year-old gay Winnipegger Ray Troughton a three-year suspended sentence, coupled with probation, for the crime of possession of child pornography.

He was charged after his former landlord discovered four pictures of naked young boys after Troughton moved out in 2010.

Because Troughton's charge arose before the Conservative government's 2012 amendments to the Criminal Code that prescribe minimum jail times for possession of child porn, the judge wasn't compelled to imprison him. (The Criminal Code now requires a judge to imprison a person convicted of possession of child pornography, at minimum, 90 days for a summary conviction offence, and six months where the Crown prosecutes it as a more serious indictable offence.)

So the judge was free to exercise his judicial discretion to craft a non-incarceratory sentence. This he did. But in doing so he, regrettably, tapped deep into his personal past.

In pronouncing sentence, the judge spoke of his own homophobic background and "really cruel" adolescent behaviour. "When I think back on it, I'm ashamed of some of the things that we did," he said. The judge's autobiographical pangs of conscience were apparently prompted by details of "the lonely difficult world" described in Troughton's pre-sentence report.

Troughton also reportedly has a prior conviction for indecent assault on a child. However, neither its vintage nor any details were disclosed in court.

Heinrichs' compassion is commendable. But his comments illustrate the risks of judicial compassion slipping into judicial confession.

And for that, he's legitimately taken some flak. Mostly along the lines that a judge's personal history shouldn't so transparently play into his judicial judgment.

However, by rendering a decision couched in such subjective terms, he also risks becoming a poster boy for the federal Conservative government's tough-on-crime agenda. The Conservatives legislated mandatory minimum sentences for child-porn offences, in part, because they believed judges' personal biases played too big a role in far too lenient criminal sentencing. Heinrichs' highly emotive language and confessional style exemplify, for federal Conservatives, why mandatory minimums are good law.

This is unfortunate. Because, once you look past the language the judge used, and his voicing lingering regrets about his own past bullying, based on the facts disclosed in court and the law applicable to Troughton's crime, the sentence was neither manifestly wrong nor inappropriate.

The Crown had sought a jail term of only two months, which, notably, is less than the current statutory minimum of 90 days. And even the prosecutor admitted the case was on the "low end" of the child-pornography scale, given the small number and type of images.

Judge Heinrichs' sentence also properly focused on both protection of the public and punishment. The probation order he made didn't contain just the run-of-the-mill condition to "keep the peace and be of good behaviour." He imposed conditions that included Troughton not be alone with anyone under the age of 16 years, he obtain sex-offender counselling, and he perform 100 hours of community service work. He'll also be placed on the national sex-offender registry for the next 10 years, branded as someone who collected images that fuel and foster a whole sick subculture-cum-industry of child abuse.

The Criminal Code of Canada's then-operative sentencing principles were also duly heeded.

The Code provides that a judge must consider all other penalties before ordering incarceration. Judges therefore, except for offences for which the Criminal Code prescribes a minimum sentence -- and again, this, back in 2010, was not a mandatory minimum offence -- have fairly broad discretion as to what penalty should be imposed. However, the Criminal Code also stipulates a judge must consider certain principles, including the penalty should be reduced to account for relevant "mitigating circumstances relating to the offence or offender."

In rough justice terms, this means the sentence should be proportional to the crime and the criminal before the court.

And in this case, in rough justice terms, it was.

 

Douglas J. Johnston is a Winnipeg lawyer.

Republished from the Winnipeg Free Press print edition August 13, 2014 A9

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