Great Moments in Canadian Sentencing 11.17.07

The weak link in the criminal justice system resides not with the police, nor the corrections apparatus, nor even, as might otherwise be surmised, the criminals.  It's the judges.

Cody Paul Lemay raped a baby.  Repeatedly.

To quote from the doctor's report:

"In my years of experience in care of the sexually assaulted patient, KN had the most severe genital injuries I have ever examined in a pediatric sexual assault case."

The physical violence was so great that the tear to the baby's anus was described as an “open, gaping laceration”.  The assaults occurred on "at least five, and perhaps as many 12 occasions".

The maximum punishment which can be meted out for a conviction of aggravated sexual assault is a term of life imprisonment (see section 273 of the Criminal Code of Canada).

Cody Paul Lemay received a sentence from the trial judge of five years in prison.

Now what's fascinating about that punishment is how it was arrived at.  It's an example of what I will dub the Moldaver Paradox (for reasons which will become apparent momentarily).  As the British Columbia Court of Appeal noted, when the trial judge was reviewing other court cases for guidance on what constituted an appropriate sentence,

"he had difficulty understanding why some of them had not attracted longer sentences"

With the story so far?  Confronted with a case of hideous violence (against a baby), the judge looks at what other judges are handing out as punishment - and he's bewildered to discover that the judgments he reads are lenient to the point of absurdity. 

So what does he do?

He hands out an even shorter sentence.  We can call it the Moldaver Paradox, because one of the cases which the trial judge relied on was R. v. B., J. [.pdf], a judgment of the Ontario Court of Appeal, involving a five-week old baby boy and six year-old girl being "horribly assaulted", by a "sexual sadist" prone to "extreme acts of violence".  In that decision, Justice Moldaver, reacting unfavourably to the "degrading", "dehumanizing" and "extreme acts of brutality" which the convicted had committed, imposed a sentence of ... wait for it ... six years (which was really only four years, after the convicted was given credit for pre-trial custody).  The trial judge in the Lemay case evidently figured he could pitch it a little lower, so he just went for five (with, of course, time off for pre-trial custody).  It's a paradox because these judges, by their own words, recognize that what they are dealing with are crimes of incredibly brutality - the worst, without engaging in hyperbole, of the worst.  They seem, again, from their own words, to want to levy stiff sanction.  And yet they seem incapable of rendering sentences which their own revulsion would warrant.  Perhaps the easiest way to cast the issue in relief is to pose the counterfactual: if the maximum sentence is life in prison, what exactly would it take for these judges to deliver that punishment?  What, in other words, is missing in these cases?  What accounts for the difference between "five years" and "life"?  What more could they possibly need in order to actually render the maximum punishment which our criminal law permits?

In the Lemay case, we see the Moldaver Paradox at work also at the level of the Court of Appeal.  The Crown appealed the ludicrous five year sentence.  The BC Court of Appeal, consisting of Justices Newbury, Low and Kirkpatrick, harrumphed at how low the sentence was, noting the extreme violence, the brutality of the assaults, the complete lack of remorse by the rapist, and increased it to ... seven years.

Our judiciary has the tools.  They consciously, deliberately, inexplicably and consistently refuse to use them.

Comments

[dmorris]

Perhaps, as Dr.Robert Hare suggested, it's because the judiciary of Canada has a high proportion of psychopaths in its ranks.

Google Dr.Hare,you'll find him very interesting.

[robert]

A few more brain dead sentences like this from the judicial " elites " and the poor kids families or their supporters will just have to mete out justice to these animals themselves.
These judges would happily hand down a life sentence to the so called " vigilante " who would dare to actualy dish out the swift and brutal punishment the vile baby rapists are begging for.
This country desperately needs judicial reform. I'd love to see how long these types of ridiculously lenient sentences would continue if the judges were held to account to the public by having to be elected to their post. Despicable dereliction of duty.

[spike]

we can only hope that that the prison culture will teach him a bit of justice that our elite judges seem to lack.

[terrence]

He will probably be put in protective custody, to protect his "rights"...

[terrence]

He will probably be put in protective custody, to protect his "rights"...

[Robert]

I remember a case some years ago (I believe it was in Alberta) where a boy told his father that a teacher was sexually abusing him. The father got into his car, went to the teacher's house, and asked the man if this was true, to which he replied "yes." The father than used a baseball bat to pulverize the teacher's legs to jell-o, then calmly got into his car, drove to the nearest police station, and turned himself in.

I certainly don't advocate the use of violence, but I do admire the man's restraint.

[Eric-Vancouver]

Dude, its just a baby. Its barely a human being, you know?

[Dannielle]

THis case was very close to home... Cody and I had been friends for many years. Cranbrook is also a very small community where everyone knows everyone. To find out that even with all the evidence given, and the brutality of the crime and lack of remorse, the most the crown could come up with was 7 years makes me sick.