The Judge Superthread- Merged Topics

[zipperhead_cop]

You have some good ideas, but where they get gummed is when you hold people accountable for their actions.  Surely you realize that no one is accountable for FA anymore.  How many conservative law and order types did you see in your psychology classes?  Typically, bleeding hearts get into those areas just because of that.  They want to help people and "I won't give up on you when everyone else does".  That is the mentality that criminals count on.  So then you have to fire a guy because he loved too much?  Then you get people launching wrongful dismissal suits against the organization, and who gets to decide on that?  JUDGES!! WOO HOO!!  
And again, if a judge chooses to ignore a minimum sentencing guideline, what do we do?  It happens all the time.  You could put minimums on every charge in the entire code, with sliding scale charts and all kinds of micro managed crap, but ultimately the judge does what they want.  And don't expect the Crowns to be launching appeals either.  Most of them are on contracts, and at such time as they displease the wrong people, the don't get to play anymore.  Besides, their case loads are so ridiculous they can't get through the new crap.  Forget about bringing up old stuff.  Plus, the judges punish the Crowns for appeals, so even if they win one, they will lose ten after "just because".  
With the really dangerous types, life sentences do exist, and used to mean just that.  However, when you have 85% of murderers getting parole eligibility on the ironically called "faint hope clause" the whole "life" thing goes into the dumper.  
There is nothing wrong with the Criminal Code.  It doesn't need to be changed.  The way it is used needs to change, and that falls on the judges.

Now back on subject, the judge and the [cough] prosecutor both know this guy is living in a walk-out halfway house in less than one year and back home in less than two years  ...................thats what a life means to them, I guess.

Another brutal article in a sea of similar ones.  The Crowns agree to a lot of lame crap.  In this case, it was probably to spare the girl from having to get shredded on the stand.  However, a judge can choose to ignore a joint submission and levy their own penalty.  But like our resident justice-killer here said "a victim is only a witness who has a personal involvement in a case".

 

[Quag]

OK... A couple problems.

First I will just say that my major is in Law & Justice, therefore I am fairly well read on this subject.

The first problem is the suggestion of the election of judges.  The independence of judges (not elected, but appointed) helps maintain trust in our judicial system and is a cornerstone of our democracy. The principle exists to ensure that citizens know that when they go to court, the judge is not influenced by the government or other forces that might taint the process.

When a person goes before a judge they must know and understand that they are going to receive justice from a fair-minded, open individual who will adjudicate the case honestly and fairly. Judges must be independent, unbiased, impartial and neutral both in appearance and fact. This is the ultimate insurance that citizens will receive justice rendered according to the rule of law and their individual rights under the law.

One of the cornerstones of the Canadian legal system is the rule of law. This is the ideal that all people are equal before the law without discrimination. For example, the rich do not have more power than the poor and women have the same rights as men. The rule of law also means that no one is above the law. The Canadian Charter of Rights and Freedoms is also very important. This document enshrines the rule of law and protects individual rights and freedoms.

To accomplish the rule of law and protect the rights and freedoms set out in the Charter, we need a legal system in which judges are independent, accountable and impartial.

The second problem is your understanding of a judges role and what their job is.  A judge's job is to supervise the legal process and to interpret the laws that they are sworn  to uphold.  A judge is like an umpire at a baseball game. He or she is not on either side. The judge represents neither the state nor the defendant in a criminal case. The judge represents neither the plaintiff nor the defendant in a civil case. The judge's job is to remain neutral and let the parties present their cases to the jury, which resolves the ultimate issues (called issues of fact). The parties present their cases according to a fixed set of rules (called issues of law), which the judge enforces.  If the prosecutor does not push for a tougher sentence like in the Chestermere case, nothing can be done, and it is not, per se, the judges fault. 

Mr. Monkhouse, you highlighted the exact problem.  It was the prosecutor, Durant, who did the sentencing.  See where I am going here?

A judge does not create cases. He or she only deals with them as they are filed.

Zipperhead Cop, a judge cannot choose to ignore a minimum sentencing guideline. This cannot happen. As you are a police officer, you probably attend court quite frequently.  Pay attention to the crown prosecutor the next time.  There is always someone else suggesting a sentence. 

As I mentioned before, a judge is only an umpire. 

He/She cannot think for themselves, or add facts, sentences, time etc... to any case.  He is only privy to the information that is presented to him by the plaintiff and defendants respectable representatives.  EVEN if the judge knows more or something else.

Hope this can clear up a little bit of our judicial system in Canada.

*edited for spelling*
~Quag

 

[Bruce Monkhouse]

Everything you just said works great.....in your classroom.

Please don't even think about telling a cop to pay more attention in the courtroom. How much dead-time you spent sitting around them?

 

[Quag]

In my classroom it works great.

In court it also works great ( I have almost as many hours in court per week as class).

I'm not telling you how to do your job at all.  I was suggesting something for you to look at more carefully the next time you are in court, so that you will have a better understanding. 

No offence, but nowhere in police college do you get a thorough understanding of the mechanics of the judicial system.  I was merely trying to show you another side of the judiciary.

 

[Cdn Blackshirt]

Hope this can clear up a little bit of our judicial system in Canada.

You may not have intended it as such, but the above statement comes across as one of the most pretentious, sanctimonious statements I think I've seen on this board (and that's saying a lot) given it is directed at a police officer.


Matthew.

 

[Quag]

You may not have intended it as such, but the above statement comes across as one of the most pretentious, sanctimonious statements I think I've seen on this board (and that's saying a lot) given it is directed at a police officer.

You must have read it the wrong way. However, it is written the way it is intended.  I'm not trying to come off as a know it all in any way shape or form.  I was simply trying to correct some of the misguided knowlege in these posts, such as:

but ultimately the judge does what they want. 

Please do not think that any of my statements are directed at anyone specific, as you accuse me of. 

 

[Quag]

You know, now that I re-read my post, I can see Cdn Blackshirt's point.

This was not my intention at all. 

I see that perhaps I have stirred up a pot that was sensitive for some people, and I apologize.

~Quag

 

[zipperhead_cop]

OK... A couple problems.

And that is about the last time in this post we agree. 

First I will just say that my major is in Law & Justice, therefore I am fairly well read on this subject.
The first problem is the suggestion of the election of judges.  The independence of judges (not elected, but appointed) helps maintain trust in our judicial system and is a cornerstone of our democracy. The principle exists to ensure that citizens know that when they go to court, the judge is not influenced by the government or other forces that might taint the process.

Okay, two issues with this statement. 
One.  Most citizens who have contact with the legal system do not have confidence with it.  At best they see it as a waste of time, and at worst a complete donkey show that only serves the criminals.  Countless times I have tried to explain "what just happened" to a victim/witness who knows bloody well what happened, and still saw the bad guy get off.  Before that day, they probably did trust the "system". 
Two.  If you think the Liberals have not tainted the process by appointing their own pocket people you are nuts.  One of our local lawyers, who is widely recognized as being a total hammer head and can't win a case on a dismissal, was up for being nominated to the bench because they were common law married with a local Liberal MP.  When they broke up, the nomination went away (thank God).  No, there isn't any partisan influence going on there.  :

When a person goes before a judge they must know and understand that they are going to receive justice from a fair-minded, open individual who will adjudicate the case honestly and fairly. Judges must be independent, unbiased, impartial and neutral both in appearance and fact. This is the ultimate insurance that citizens will receive justice rendered according to the rule of law and their individual rights under the law.

:rofl:  OMG!!  I will exceed my character count if I pull apart each part of that.  What criminals know is that when they get to court, their lawyer will pull all the shifty crap they can to try to trip up the Crowns case.  Which is their job, and I totally agree with that.  However, it is the judges job to filter out the static and bullshit.  The concept of "reasonable doubt" has gone out the window.  I cannot think of one judge right now that thinks like "a reasonable man" would. 

One of the cornerstones of the Canadian legal system is the rule of law. This is the ideal that all people are equal before the law without discrimination. For example, the rich do not have more power than the poor and women have the same rights as men. The rule of law also means that no one is above the law. The Canadian Charter of Rights and Freedoms is also very important. This document enshrines the rule of law and protects individual rights and freedoms.

Oh, you are hitting them out of the ball park!  Rich people most certainly DO have a different system of law, because if you have enough money, you can beat just about anything, short of a murder on video.  Ask anyone who has been charged with drunk driving and they will tell you.  If you want to spend $10 000 on a defence, you will beat the charge.  Not on the merits, but because the defence will bring in all kinds of bogus "experts" and muddy up the case.  Poor people plead guilty.  Career criminals do whatever they want, because they get legal aid because they generally are collecting welfare. 
So far as the Charter, it has gone too far.  The rights of society are being steam rolled and criminals are having a free run. 

To accomplish the rule of law and protect the rights and freedoms set out in the Charter, we need a legal system in which judges are independent, accountable and impartial.

Independent--yes. 
Accountable--not in the least. 
Impartial--hardly.  There are at least three judges here that used to be local lawyers.  They now decide cases for the guys they golf with and even previous firm partners.  When we see certain combo's of judge/defence we start letting the witness/victim know so it stings less when it comes. 

The second problem is your understanding of a judges role and what their job is.  A judge's job is to supervise the legal process and to interpret the laws that they are sworn  to uphold.  A judge is like an umpire at a baseball game. He or she is not on either side. The judge represents neither the state nor the defendant in a criminal case. The judge represents neither the plaintiff nor the defendant in a civil case. The judge's job is to remain neutral and let the parties present their cases to the jury, which resolves the ultimate issues (called issues of fact). The parties present their cases according to a fixed set of rules (called issues of law), which the judge enforces.  If the prosecutor does not push for a tougher sentence like in the Chestermere case, nothing can be done, and it is not, per se, the judges fault. 

See, that is what your text book tells you.  But that is not the case in real life.  Just as the CCC has written laws, but ultimately case law often ends up having them applied very differently than the way they are written.
The way it works is that the judges are a second defense counsel, and all they really look for are any things that potentially are to the detriment of the accused.  Did you read my previous example of the judge offering a defense of provocation, where none was submitted by the defence counsel?  The defense lawyers don't even really need to make submissions.  The Crown makes their submission, and I see defense counsel saying "I've made my points, I've nothing further" then when the judge tosses the case, he is making reference to the ideas that the defense counsel floated, but never articulated!  Must be nice to have a judge finish your speeches for you. 

A judge does not create cases. He or she only deals with them as they are filed.

But the judge creates case LAW.  They set precedence that only ever seems to work in favor of the criminal.  Because god help the Crown that argues against the judge based on precedence, especially at sentencing time.  They can look forward to weeks of dismissals after that.  And don't even argue that.  I talk to heaps of Crowns and they all say without exception that judges will punish them for perceived slights of character. 

Zipperhead Cop, a judge cannot choose to ignore a minimum sentencing guideline. This cannot happen. As you are a police officer, you probably attend court quite frequently.  Pay attention to the crown prosecutor the next time.  There is always someone else suggesting a sentence. 

Wow, that's a great idea.  And all this time when I am in court I have my iPod plugged in and playing Mah Jongg.  Thanks for the big heads up. 
I have been going to court on average seven times a month for eight years.  So roughly 650 of MY cases have been to court.  But I will try to follow a bit closer. 

As I mentioned before, a judge is only an umpire. 
He/She cannot think for themselves, or add facts, sentences, time etc... to any case.  He is only privy to the information that is presented to him by the plaintiff and defendants respectable representatives.  EVEN if the judge knows more or something else.

Again, that is great in theory.  Until you see them agree to absolute discharges because the accused has no criminal record.  Except that information was not presented.  Oops.  Or the dismissal rate for the ex-firm chums is fantastically higher than the other lawyers.  Or any other of misconducts that go unanswered, like show up half hour late, take hour long recess, two hour lunch, 45 minute afternoon recess and shut down early because "we don't have enough time to get to a new case".  Court here is from 10 am to 1pm for the morning, and 2:30 pm until (technically) 5 pm.  Do the math.  Defense are allowed to subpoena every single person whose name even appears passingly in the report, knowing that they won't call them.  So when the judge sees a trial with 8 witnesses that is to start at 3:30 pm, they say "jeez, I'm not sticking around that long, we're done here".  Then the lawyer/buddy gets a new date, pleads institutional delay and the shitrat walks.  The flip side is that when a whole day is blocked for a trial with heaps of witnesses, the shitrat all of a sudden decided to change his plea to guilty.  That doesn't hurt my feelings, because I get paid a heap for court overtime.  But then you have Joe Citizen who had to take an unpaid day off from work, only to be told "we don't need you". 

Hope this can clear up a little bit of our judicial system in Canada.

No doubt Quag you will end up being some sort of lawyer eventually.  If you can lower yourself long enough perhaps try a tour as a Crown and see what it is like.  Just remember, the senior defense lawyers around our place think the system is a joke too, and laugh with us about it.  To be sure, it is some dark humour.  But it's the old saying about "I have to laugh or ...."

 

[couchcommander]

This is the ideal that all people are equal before the law without discrimination

No, as according to the charter this does "not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability".

In other words, unfortunately, we are far from equal before the law.

This leads to decisions such as:

"The very purpose of sentencing circles seems to be to fashion sentences that will differ in some mix or measure from those which the courts have up to now imposed in order to take into account Aboriginal culture and traditions....This fits very well into and complies with the sentencing principles developed by the courts....This leaves substantial room for the use of sentencing circles as has been shown by their extensive use by the Provincial Court and the very few appeals by the Crown from sentences imposed with their advice..." (R. v. Morin, 1995).

In other words, if you are Indian, you can expect a lesser setence.

Which translates into the fact that indian offenders "receive shorter sentences on average than non-[Indian] offenders in both federal and provincial institutions" - and despite this, they still occupy some 14% of the prison population, while only accounting for 4% of Canadians. (Criminology: A Canadian Perspective, 2004).

So no, we are not equal under the law. Nevermind "guilty by reason of an inferior bank balance"... (I think that's Kat Stevens).

Though, happily, you are right that electing judges is a bad idea. But no, our legal system is dumb.

 

[Quag]

I see your point Zipperhead, and I even had a good laugh at some of your points.

I knew that alot of my points were "textbook" answers and that they did not apply in real life.  The reason for me adding these to my post was to reinforce the rationale behind NOT electing judges.  If you want to see how rich people can have a different system of law, it would be in the election of judges.

I will agree with you that the legal system does have some major flaws.

However, I have seen 3 years of courts (about 20-25 hours per week), and have never seen any of the serious problems that you address.

Chalk it up to inexperience I guess.

Couchcommander,  again I have paid close to attention to, and even did a major study on discrimination in the judicial system, however I failed to notice the trend (in as severe as you describe it) you describe.

Just out of curiosity Zipperhead, what are your opinons of switching to a civil code law like Quebec instead of precedent based law.

This is getting interesting....I love law...

 

[zipperhead_cop]

I see your point Zipperhead, and I even had a good laugh at some of your points.

I knew that alot of my points were "textbook" answers and that they did not apply in real life.  The reason for me adding these to my post was to reinforce the rationale behind NOT electing judges.  If you want to see how rich people can have a different system of law, it would be in the election of judges.

I will agree with you that the legal system does have some major flaws.

However, I have seen 3 years of courts (about 20-25 hours per week), and have never seen any of the serious problems that you address.

Chalk it up to inexperience I guess.

Couchcommander,  again I have paid close to attention to, and even did a major study on discrimination in the judicial system, however I failed to notice the trend (in as severe as you describe it) you describe.

Just out of curiosity Zipperhead, what are your opinons of switching to a civil code law like Quebec instead of precedent based law.

This is getting interesting....I love law...

I don't think I quite get the idea of textbook answers reinforcing a practical problem, but fair enough.  I also fail to see how your income bracket would affect a judge?  I have already indicated that were there to be elected judges there would have to be extremely strict contribution criteria in order to prevent what I think you are alluding to.  However, as a generality rich people don't commit frequent crimes.  And when they do, usually it is something spectacular, like a murder or a major business fraud.  Worst case scenario the rich have "close ties to the community" and "pose no significant risk" and head off to Club Fed in BC.  And since having lots of money for a defence gets you off (generally) now, how could the situation be worse?  At least come election time you could have adds that said "Judge Twaddle allowed fifty drunk drivers off this year, and three of them were his campaign contributors".  As well, when a judges job is not carved in stone as it is now, if impropriety occurred it would be much easier to oust them.  To simply point at the American system which appears to have developed flaws over the decades is pedantic at best.  Presumably, if we were to make such a massive shift in the legal system, it would be hammered out in the best possible frame work.  Hell, have the SSC make the rules, and have them up for review the year before elections every cycle. 
As far as the Quebec system, anything that makes the rest of Canada more Quebec-ish is always going to be a bad idea.  The legal system there is even more lenient than here.  They actually complained that when the YCJA (Youth Criminal Justice Act) was introduced it was too HARSH.  It certainly is one big weird universe a distinct culture over there.

 

[couchcommander]

Couchcommander,  again I have paid close to attention to, and even did a major study on discrimination in the judicial system, however I failed to notice the trend (in as severe as you describe it) you describe.

Read Examining Aboriginal Corrections in Canada, C.P LePrairie, 1996.

 

[zipperhead_cop]

Read Examining Aboriginal Corrections in Canada, C.P LePrairie, 1996.

And then after that came out, someone in the GTA tried to argue that Jamaican females were being unfairly sentenced, because they made up an abnormal percentile of the female prison population based on the same pile of crap criteria.
It just never bloody ends.  Albeit, I never did hear if that got off the ground or not. 

 

[couchcommander]

Don't worry zipperhead... I'm arguing against special treatment. I find the idea that someones ethnic origin would play into their sentencing... well...offensive. Unfortunately, it's a stated and recognized policy that indians are supposed to be given special treatment, and this has translated into lesser sentences.

 

[zipperhead_cop]

Which we get to see in more native crime.  Yup.  Those judges are really serving the public interest there. 

 

[warspite]

I've heard do many stories about our legal system and the unbelievably ridiculous decisions that come out of it. :brickwall:
I'm wondering would it be possible to revive the idea of transportation?  The British shipped their convicts to Australia and America, why can't we ship ours to the arctic and Put them to work digging diamonds or mining copper or something useful rather than putting them back out into the street were they continue committing crime.  Put a bunch of houses in the middle of the tundra and surround them with a twenty foot fence.

 

[Fishbone Jones]

....or put them to work doing 'spellchecks' on your posts.

 

[warspite]

Now there's a fitting punishment... I can see it now, rob a little old Granny and your spellchecking my essay on THE LASTING EFFECTS OF THE BRITISH EMPIRE... mwhahahaha >

 

[Cloud Cover]

Here is a good example:

SUPERIOR COURT OF JUSTICE - ONTARIO


Sentencing – Nordheimer, J.

Thursday, December 1, 2005



R. v. Brown
THURSDAY, DECEMBER 1, 2005

NORDHEIMER, J, Sentencing:

            On October 27, 2005, I found Mr. Brown guilty of eight counts, namely: pointing a firearm, assault using a firearm in a careless manner, possession of a restricted firearm without a license, possession of a firearm without a license, possession of a firearm and possession of ammunition both while prohibited by an order under Section 109 of the Criminal Code, and escaping lawful custody. 

            I found Mr. Brown not guilty of three other charges.  These offences arise out of the events of August 24, 2004.  The basic facts are: on that evening three on-site security guards at a building located at 200 Sherbourne Street went to Apartment 306.  After hearing what appeared to be a cry for help the security guards entered the apartment.  One of the security guards approached Mr. Brown, who was lying on a mattress.  Believing that Mr. Brown was banned from the building another security guard ordered Mr. Brown to get up.  As Mr. Brown started to get up he drew a handgun from his waist area and pointed it at one of the guards.  That guard reacted by punching Mr. Brown a number of times.  Mr. Brown then dropped the gun and two security guards got into a scuffle with him as they tried to handcuff him.

            Eventually, Mr. Brown was handcuffed and taken out into the hallway.  In the hallway Mr. Brown ran from the guards, but was eventually caught again after he fled down some stairs and outside the building. 

            Mr. Brown admitted that he went to the apartment to smoke crack cocaine as he had done frequently in the past.  A female known to Mr. Brown came to the apartment with the gun in question that she had found in a park, and that she wanted Mr. Brown’s help in selling.  Both Mr. Brown, this female and others in the apartment were smoking crack cocaine when the security guards entered the apartment. 

            I concluded that Mr. Brown pulled the gun on the security guard in an effort not to be detained by them and searched, because Mr. Brown had a quantity of crack cocaine on him at the time. 

            The Crown submits that a total sentence of seven to ten years should be imposed before any credit is allowed for pre-sentence custody. 

            The defence submitted that a suspended sentence and probation was more appropriate in light of the time that Mr. Brown has spent in pre-sentence custody.   

            Mr. Brown is 36 years old.  He has five children, one of whom is a three-year-old daughter that he has with his current fiancée.  Mr. Brown also has a relatively lengthy criminal record dating back to 1984 as a youth. 

            Mr. Brown’s record includes prior convictions for theft and assault, including assault of police officers as well as numerous drug convictions.

            The maximum penalty imposed on Mr. Brown to date is three and a half years for criminal negligence causing death in 1994.  Mr. Brown was also subject to a weapons prohibition order under Section 109 of the Criminal Code at the time of these offences. 

            I have read the Victim Impact Statement filed by Malek Abdul, the security guard Mr. Brown pointed the firearm at.  It outlines the psychological trauma that Mr. Abdul suffered as a consequence of these events.  It is not difficult to understand and appreciate the emotional impact that would be suffered by a young man working as a security guard, who has a semi-automatic handgun pointed at him in the course of his duties. 

            The fundamental purpose of sentencing as set out in Section 718 of the Criminal Code is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by the imposition of just sanctions, that have one or more of the sentencing objectives referred to in that section.  Those objectives include denunciation, deterrence and the acknowledgement of the harm done to victims and to the community from the commission of criminal offences. 

            There are a number of aggravating factors in this case:  one aggravating factor is that Mr. Brown was in possession of a prohibited firearm when he had been subject to a prior order prohibiting him from the possession of weapons. 

            Another aggravating factor is that Mr. Brown was in possession of a prohibited firearm while he was on a recognizance or bail that prohibited him from the possession of weapons. 

            Put simply, when Mr. Brown was allowed to be out of custody on certain terms and conditions he not only breached those terms by indulging in illegal drugs, he further breached those terms by becoming involved with a firearm.  I note, however, that Mr. Brown was not charged with breaching his recognizance.

            Another aggravating factor is that the weapon that Mr. Brown possessed was a semi-automatic handgun that contained a clip with at least one bullet in it.

            The further aggravating factor is that Mr. Brown was under the influence of crack cocaine when he pointed the handgun at Mr. Abdul. 

            Lastly, of course, there is the aggravating factor of Mr. Brown’s criminal record. 

           Unfortunately there is not much to be found in terms of mitigating factors.  I would note, however, in terms of mitigating factors, that Mr. Brown did not originally acquire the firearm, nor did he bring it to the apartment.  Rather, he simply took the opportunity that the presence of the firearm provided to use it in an attempt to make his escape. 

            It was therefore more in the nature of a spontaneous act as opposed to one that was planned or thought out. 

            I would also note the obvious fact that Mr. Brown has a problem with an addiction to crack cocaine that underlies both his criminal record and his conduct in this case. 

            The circumstances of this case lead to the inescapable conclusion that the objectives of denunciation and deterrence are of primary importance. 

            I have recently had reason to make observations on the current concern in this community regarding the possession and prevalence of handguns in our community. 

            I refer to my decision in R. v. Grant [2005] O.J. No. 4599.  I do not need to repeat what I said in that case regarding this subject.  The danger that such weapons pose to others is self-evident.  The risk to the security guards in this case from the presence and use of the hand gun by Mr. Brown is also obvious. 

            While the possession by any person of a loaded handgun is a very serious concern, that concern is magnified when the person who is in possession of the handgun is already subject to an order of the court prohibiting him from the possession of weapons.  I repeat that weapons prohibition orders must have meaning if there is any hope of them having any positive effect.  One way to ensure that they have meaning is to make it clear to any person subject to such an order that if they choose to violate such an order, that choice will attract serious consequences. 

            I sentenced Mr. Grant to the equivalent of eight years and four months regarding his various offences including the weapons offences. 

            There are, however, some significant differences between this case and that of Mr. Grant.  First, Mr. Grant was subject to multiple prior weapons prohibition orders; second, Mr. Grant had prior convictions for possession of weapons and prior convictions for breaching those prohibition orders; third, Mr. Grant directly acquired the handgun in question. 

            In the end result I do not consider that Mr. Brown is in the same category of offender as Mr. Grant.  Having said that, the more disturbing factor here is that Mr. Brown actually used the firearm, that is, he pointed the firearm at Mr. Abdul.  The firearm was a loaded semi-automatic handgun with at least one bullet in the clip.  It is not clear whether the gun was immediately capable of being fired, as, fortunately for Mr. Abdul, Mr. Brown did not pull the trigger. The risk, however, was very much present.   

            Parliament has established a five-year maximum penalty for pointing a firearm; whereas, there is a ten year maximum penalty for possession of a firearm.  On the surface that would suggest that Parliament considers pointing a firearm to be a less serious offence than simple possession of a firearm, which would appear to be an odd result to say the least. 

            In this case the act of pointing the firearm was by far the most serious of the acts engaged in by Mr. Brown, when it is contrasted to the relatively brief possession of the gun by Mr. Brown and the fact that the presence of the gun resulted from the act of another.

            Nonetheless, it is an act that, when coupled with the conclusion that Mr. Brown was under the influence of crack cocaine at the time, was frightening in its potential consequences.

            It is also an act that when coupled with Mr. Brown’s prior record for assaults, warrants a significant penalty.  In my view, Mr. Brown’s possession of the gun in violation of the weapons prohibition order and the terms of his conditions of release at the time also calls for a significant penalty. 

            The Crown asks for consecutive sentences regarding the conviction for pointing a firearm and for escaping lawful custody.  Again, I do not intend to repeat what I said in Grant regarding the confusion of whether consecutive sentences are appropriate in such circumstances. 

            Once again, however, I conclude that the principle of totality precludes the imposition of consecutive sentences for these offences.  [note fromw601- the principle of totality is not act passed into law, but rather it is an invention created by judges]             A final point that must be addressed is the issue of pre-sentence custody.  Mr. Brown has been in custody since he was arrested on August 24th, 2004, a period of approximately fifteen months.  In terms of the sentences I am about to impose I have given Mr. Brown a credit for that period of pre-sentence custody of 30 months. 

             Mr. Brown, would you please stand. 

             On count number one, pointing a firearm, I sentence you to a term of imprisonment of eighteen months. 
            On count number three, assault, I sentence you to time served plus one day. 
            On count four, using a firearm in a careless manner, I sentence you to time served plus one day. 
            On count six, possession of a restricted firearm, I sentence you to a term of imprisonment of six months. 
            On count seven, possession of a firearm, I considered this count should be stayed under the principle against multiple convictions for the same act as set out in R. v. Kienapple [1974] 15 C.C.C. (2d) 524 (S.C.C.). 
            On count eight, possession of a firearm while prohibited by an order under Section 109 of the Criminal Code, I sentence you to a term of imprisonment of 18 months. 
            On count nine, possession of ammunition while prohibited by an order under Section 109 of the Criminal Code, I sentence you to time served plus one day. 
           On count eleven, escaping lawful custody, I sentence you to time served plus one day. 
            All of these sentences are to be served on a concurrent basis, one to the other. 
            On a global basis, that represents a sentence of four years, of which 18 months remain to be served after giving you a credit of 30 months for the pre-sentence custody. 
            I strongly recommend to the correctional officials that Mr. Brown serve his sentence at the Ontario Correctional Institute where he can receive treatment for his drug addiction. 
            The Criminal Code makes a further prohibition order mandatory:  There will therefore be an order under Section 109 prohibiting Mr. Brown from the possession of weapons for life. 

             The offence of assault is a secondary designated offence under the DNA provisions of the Criminal Code.  I consider it to be in the best interests of the administration of justice, given Mr. Brown’s prior record, that he be ordered to provide a DNA sample for the DNA Data Bank. 

            Finally, there will be an order directing the forfeiture of the handgun, the clip and the ammunition to the Toronto Police Service for destruction.   You may be seated, sir. 

--- ADJOURNED. 

 

[Bruce Monkhouse]

Quote,
I strongly recommend to the correctional officials that Mr. Brown serve his sentence at the Ontario Correctional Institute where he can receive treatment for his drug addiction. 


Oh, yay.....