Wednesday, July 14, 2004
Commentary - sentence for child abuse
Is their any justice in a nine-month sentence for child abuse?
I was perplexed by the July 6, 2004 National Post story “Judge says abusers meant well: Outrage over light sentence for couple who caged and beat boys”
A subsequent examination of Judge D. J. Halikowski’s reasons for judgment dated February 9, 2004 convinced me that a nine-month sentence did not in any way reflect the aggravated circumstances of the indictable offences of forcible confinement and aggravated assault. These offences carry a maximum punishment of 10 years.
In characterizing 13 years of sadistic confinement and unimaginably sordid and disgusting acts by the boys’ parents, Judge Halikowski stated: “What may have started off as a well-intentioned form of discipline descended darkly into abusive behavior that crossed the threshold into torture.”
The crown proposed a sentence in the range of four to eight years. Counsel for the parents requested a non-custodial conditional sentence. The National Post stated that Halikowski rejected the submissions of crown and defence and concluded that the abuse was too severe to warrant conditional sentences and a “lack of intent prevented him from handing down harsher jail terms (than nine months).”
Judge Halikowski seems to have disregarded the fundamental purpose of our criminal law in the context of the mores of our Canadian society and our intense concern for the welfare of children. There is no indication he reacted to the fact that two young boys had been subjected to the very thing that could not be imposed on their parents: cruel and unusual punishment.
And the sentence of nine months appears to reflect empathy for the offending parents: their physical and mental handicaps being of such significance as extenuating circumstances to rule out a sentence on all fours with the facts of the case.
We have criminal law because criminals will always be among us. The criminal law and particularly the sentencing process must not focus on the predicament of offenders at the expense of their victims. That is what occurred in this case.
Judges are burdened with a duty to afford protection to that vast and overwhelming percentage of citizens living within the law; judges are trustees of the criminal law as it is expressed in the Criminal Code of Canada and other federal statutes. If sentences imposed on convicted criminals are not proportionate to harm done to victims and to society generally, then the criminal law fails its beneficiaries: law abiding persons.
Children are within the generality of ‘law-abiding persons.’
Judges must be ever-mindful of the words of Chief Justice Dickson in Ogg-Moss v The Queen, a 1984 decision of the Supreme Court of Canada:
One of the key rights in our society is the individual’s right to be free from unconsented invasions on his or her physical security or dignity and it is a central purpose of the criminal law to protect members of society from such invasions.
And I would add the following comments to the words of Dickson:
It is the duty of parents to fulfill the absolute trust that binds them to protect their children from violence. And once a parent pleads guilty to assault of a child, thereby admitting a breach of trust, it is wrong to consider as mitigation that the violence began and was inflicted by way of correction in the advancement of the education of the child.
Considering the span of the crime and its inhumanity and the conclusion of the judge that it ultimately amounted to torture, it is impossible to accept his equivocation that the crime was intrusive but not physically harming and that there were no long-term psychological effects for the victims.
The rule of law does not exist in a constitutional vacuum. It is our judges who are its keepers and when a citizen stands guilty before the court society expects a just sentence: one tempered with mercy but measured meaningfully to reflect the ferocity of the offence and the plight and quandary of the victim. It must resonate at the street level and give cause for people to consider the consequences of criminal behavior.
The facts and circumstances of this case warranted a sentence in the upper end of the four to eight-year range of sentence proposed by crown counsel. But that is only my opinion reflecting the hard-nosed attitudes of judges who grew up in the Depression and War.
Today we have a new generation of lawyers and judges, too many of whom, it seems to me, see no evil in criminal behavior and violence, extrapolating into the assessment of an offender and his criminal act the notion that deep down he is like the rest of us and that his redemption will be lost if he is punished by being sent to jail. There is a growing tendency to emphasize the predicament of the guilty, in some cases extending to the characterization of the criminal as a victim alongside his chosen victim.
When a sentence imposed on a convicted criminal appears to be nothing more than an indulgence, every Canadian has the absolute right to protest. Every citizen has a constitutional right to criticize a judge’s conduct in a particular case or to criticize any particular decision or series of decisions. Such criticism may be outspoken and even harsh, provided it does not impute impropriety on the part of the judge or the court.
Wallace Gilby Craig – www.realjustice.ca - July 8, 2004
I was perplexed by the July 6, 2004 National Post story “Judge says abusers meant well: Outrage over light sentence for couple who caged and beat boys”
A subsequent examination of Judge D. J. Halikowski’s reasons for judgment dated February 9, 2004 convinced me that a nine-month sentence did not in any way reflect the aggravated circumstances of the indictable offences of forcible confinement and aggravated assault. These offences carry a maximum punishment of 10 years.
In characterizing 13 years of sadistic confinement and unimaginably sordid and disgusting acts by the boys’ parents, Judge Halikowski stated: “What may have started off as a well-intentioned form of discipline descended darkly into abusive behavior that crossed the threshold into torture.”
The crown proposed a sentence in the range of four to eight years. Counsel for the parents requested a non-custodial conditional sentence. The National Post stated that Halikowski rejected the submissions of crown and defence and concluded that the abuse was too severe to warrant conditional sentences and a “lack of intent prevented him from handing down harsher jail terms (than nine months).”
Judge Halikowski seems to have disregarded the fundamental purpose of our criminal law in the context of the mores of our Canadian society and our intense concern for the welfare of children. There is no indication he reacted to the fact that two young boys had been subjected to the very thing that could not be imposed on their parents: cruel and unusual punishment.
And the sentence of nine months appears to reflect empathy for the offending parents: their physical and mental handicaps being of such significance as extenuating circumstances to rule out a sentence on all fours with the facts of the case.
We have criminal law because criminals will always be among us. The criminal law and particularly the sentencing process must not focus on the predicament of offenders at the expense of their victims. That is what occurred in this case.
Judges are burdened with a duty to afford protection to that vast and overwhelming percentage of citizens living within the law; judges are trustees of the criminal law as it is expressed in the Criminal Code of Canada and other federal statutes. If sentences imposed on convicted criminals are not proportionate to harm done to victims and to society generally, then the criminal law fails its beneficiaries: law abiding persons.
Children are within the generality of ‘law-abiding persons.’
Judges must be ever-mindful of the words of Chief Justice Dickson in Ogg-Moss v The Queen, a 1984 decision of the Supreme Court of Canada:
One of the key rights in our society is the individual’s right to be free from unconsented invasions on his or her physical security or dignity and it is a central purpose of the criminal law to protect members of society from such invasions.
And I would add the following comments to the words of Dickson:
It is the duty of parents to fulfill the absolute trust that binds them to protect their children from violence. And once a parent pleads guilty to assault of a child, thereby admitting a breach of trust, it is wrong to consider as mitigation that the violence began and was inflicted by way of correction in the advancement of the education of the child.
Considering the span of the crime and its inhumanity and the conclusion of the judge that it ultimately amounted to torture, it is impossible to accept his equivocation that the crime was intrusive but not physically harming and that there were no long-term psychological effects for the victims.
The rule of law does not exist in a constitutional vacuum. It is our judges who are its keepers and when a citizen stands guilty before the court society expects a just sentence: one tempered with mercy but measured meaningfully to reflect the ferocity of the offence and the plight and quandary of the victim. It must resonate at the street level and give cause for people to consider the consequences of criminal behavior.
The facts and circumstances of this case warranted a sentence in the upper end of the four to eight-year range of sentence proposed by crown counsel. But that is only my opinion reflecting the hard-nosed attitudes of judges who grew up in the Depression and War.
Today we have a new generation of lawyers and judges, too many of whom, it seems to me, see no evil in criminal behavior and violence, extrapolating into the assessment of an offender and his criminal act the notion that deep down he is like the rest of us and that his redemption will be lost if he is punished by being sent to jail. There is a growing tendency to emphasize the predicament of the guilty, in some cases extending to the characterization of the criminal as a victim alongside his chosen victim.
When a sentence imposed on a convicted criminal appears to be nothing more than an indulgence, every Canadian has the absolute right to protest. Every citizen has a constitutional right to criticize a judge’s conduct in a particular case or to criticize any particular decision or series of decisions. Such criticism may be outspoken and even harsh, provided it does not impute impropriety on the part of the judge or the court.
Wallace Gilby Craig – www.realjustice.ca - July 8, 2004
