Saturday, May 23, 2015


I was quoted in today's National Post Editorial by George Jonas.

May 22, 2015
George Jonas
Posted with permission from National Post

Judges should interpret and follow the law, not circumvent it. But I'm equally troubled by mandatory requirements of any kind.

In 2010 four young men robbed a bank in Toronto. They managed to gather up the loot and make it out of the building, only to crash their getaway car into an 18-wheeler within a block. Captured, charged, tried and convicted, they were sentenced to prison terms ranging from nine months to two years less a day.

The sentences may sound rather light for armed robbery, but if the trial judge found them appropriate for the circumstances, I wouldn't be prepared to second-guess him. He heard all the evidence; I didn't. All the same, I wouldn't have given much for the chances of Amijad Nassri when he sought relief from his 9-month sentence at the Ontario Court of Appeal.
The relatively longest sentence went to Abdirahman Diriye, an agile bandit who had vaulted a counter during the robbery and held a knife to a teller's neck. The lookout of the gang, Mohamed Noori, got 13 and a half months. The judge gave the shortest sentence to Amijad Nassri, 21 at the time, who was behind the wheel of the getaway car, albeit only for a short time.
"Amijad, son," I would have said, had he asked me, "you should thank your lucky stars. You were caught robbing a bank with your buddies, and all you got for it was nine months in the cooler. With mandatory remissions, if you begin serving your sentence when the groundhog starts looking for his shadow, you'll be out before the end of the black-fly season
"I suggest, instead of appellate counsel, you had better spend your money on driving lessons."
That's what I would have told the young man - and I would have been wrong. The Ontario Court of Appeal reduced Nassri's sentence from nine to less than six months.
What happened? Did the appellate judges credit Nasri's defence at his trial that he didn't know when he used his father's car to drive his friends to the bank that they intended to rob it? It was a good story, even if the trial judge didn't believe it, but the appellate judges didn't advert to it at all. Nasri was appealing only his sentence, not his conviction, and for reasons that had nothing to do with his lack of mens rea or guilty mind, which had been his defence at trial.
Nasri wasn't a Canadian, and it was too harsh a sentence for him
The young man's successful defense at appeal was unrelated, not only to his guilt or innocence, but even to the severity of his penalty in relation to his crime. Nasri didn't plead that nine months was too harsh a sentence for driving a getaway car during a bank robbery. For all he knew or cared, it might have been a perfectly proportionate sentence for a Canadian, maybe even lenient - but Nasri wasn't a Canadian, and it was too harsh a sentence for him.
The Ontario Court of Appeal agreed. Writing for the three-member panel, Justice Robert Sharpe expressed the view that the consequences of a nine-month sentence for the appellant before the court "would be grossly disproportionate to this offence."
Here's the reason. Only weeks before Nasri had been sentenced, the Harper-government enacted legislation that reduced the previous threshold of a two-year sentence for the mandatory deportation of foreign criminals to a six-month sentence. People could appeal, but their chances were slim. As Justice Sharpe put it, a nine-month sentence would in effect deprive "the appellant of the right to appeal deportation" to the country of his origin, which in Nasri's case happened to be Syria.
Considering that the consequences for Nasri would have been near-certain deportation to a country accurately described by Justice Sharpe as "one of the most dangerous places on Earth," it's difficult to disagree that for this young man the consequences would have been disproportionate to the offence. Still, the Ontario appellate court's reasoning would limit the punishment of non-Canadians from war-zones to less than six months for any but capital crimes.
Whether it troubles the Supreme Court or not, it troubles me, and ought to trouble all Canadians

Whether it troubles the Supreme Court or not, it troubles me, and ought to trouble all Canadians. Judges should interpret and follow the law, not circumvent it. But I'm equally troubled by mandatory requirements of any kind. Deportation shouldn't be rigidly tied to the disposition of other matters. We may want to see an immigrant embezzler spend a year in jail without necessarily wanting to see him deported to Idi Amin's Uganda. Judges may seem inexplicably lenient (or inexplicably harsh) at times to outside observers, myself included, but they are in a far better position to determine the outcome of particular cases than inflexible bureaucrats, self-serving politicians, or loudmouth journalists.
The former chair of the Ontario Bar Association's immigration section, Sergio Karas, was quoted as finding it "somewhat troubling that the court seems to be trying to fit the sentence to fall shy of the six months bar, which was intended by Parliament to expedite the removal of noncitizen criminals." I bet the government finds it somewhat troubling, too, and may turn to the Supreme Court to see if it may also be troubled by judges taking the bit between their teeth to the extent of judicial nullification of the law.
National Post

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