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Lousy Judgment

Bad politics, weird decisions: a system in need of reform.

By Rafe Mair 19 Mar 2007 | TheTyee.ca

Rafe Mair writes a Monday column for The Tyee. Mair's website is http://www.rafeonline.com. His latest book, Over the Mountains, is at your bookstore.

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Chief Justice McLachlin: one recent critic.

Usually when judges are criticized, I find this pat phrase on the tip of my tongue -- "Judges and courts around the country do, generally, a fine job of administering justice." Usually, I can spit that or something else like it out and feel that I've done my patriotic duty. Today, that pat phrase isn't anywhere to be seen or heard because the system of justice in this country is in horrendous shape and needs a major overhaul. The Tories have started this process, but achieving their goals will actually make matters worse.

In no particular order, we've seen some astonishing things take place in the past few weeks. We've seen the Harper bottom feeders stack the committees, which will recommend judgeships with Tories and policemen (who, no matter how they vote in elections, are sharp right on legal matters) in the pious hope that the present mollycoddling of criminals will end.

Unfortunately, events since have made it appear that the Tories have a point. They don't, of course, because to place highly biased people in charge of enforcing fair play is to erode our basic liberties that go back to a 1215 meeting Bad King John had with some troublesome barons. Moreover, if judges are too lenient, parliament can change the minimum sentences. However wrong the Tory solution may be, their current evidence is hard for us "liberals" to refute.

Jail bluffs

I barely mention the Kamloops provincial court judge, Balwinder William Sundhu, who resigned after being arrested for being intoxicated in public. What was of mild interest is that his conduct was investigated by one of his colleagues on the provincial court bench.

Then there was the skilful abuse of the courts by the provincial government in which the government got the courts in to enforce the government's decision on Eagleridge Bluff. The Campbell government, whose friends are about to make fortunes beyond their wildest imaginations when the new Sea-to-Sky Highway is finished (as they will when the RAV, oops, Canada Line is done), did not hold a fair environmental assessment, then sicced the "beak" on any who protested, thus sending two women to jail. One, a 71-year-old with asthma and flu, was jailed with violent offenders, and died shortly after her release. Another, 78-year-old Betty Krawczyk, was jailed for 10 months. The government was correctly seen as using the court as the enforcer of a decision that was badly flawed. The Campbell government and the developers got their way.

These two government-inspired jailings come hot on the heels of ex-teacher Tom Ellison, a serial sex offender who abused the trust of several female students, getting a little house arrest and a bit of community service. Reminds one of The Mikado and the humorous Gilbert and Sullivan song about "let(ting) the punishment fit the crime." There's a thought -- perhaps as we trace this path I'm on, we should consider that our judges are really all satirists and we should take their aberrant behaviour as acts of official merriment at which we should be amused, not angry. But, at any rate, let us proceed.

'Fraud factory'

A major league fraud by two men, what the highly respected Vancouver Sun securities writer, David Baines, called a "fraud factory," brings no punishment. One of these men, Doug Walls, is a relation by marriage to Premier Campbell. But far from quickly admitting responsibility, the accused forced the crown to investigate for over six years, and the cost of this investigation, including Special Crown Prosecutor Josiah Wood (a former Court of Appeal justice) was horrendous. The victim, the CIBC, (yes, banks can be victims) is left holding the bag for over a million bucks.

In fact, the judge praised these two fraudsters for putting the stolen money back into their car business and not into their own pockets! Wow! If they'd given the money to someone else, say the B.C. Liberal party, they'd probably have got an Order of B.C.! These criminals, serial fraudsters, got absolutely nothing from Associate Chief Justice Patrick Dohm, unless you consider a two-year conditional sentence punishment. With hesitation, I remind you that Betty Krawczyk got 10 months in the slammer for behaving contemptuously of the same court.

Then, a judge finds a biker, one of the naughty sort, not guilty of possession of cocaine found in his locker. The crown evidence was that Hehn [the accused] was arrested in July 2003, when police stopped a truck he was riding in with Ewan Lilford, a Coquitlam man associated with the motorcycle club. Investigators from the Organized Crime Agency of B.C. said that, minutes earlier, they had seen the men loading boxes into the truck from a storage unit, rented by Hehn. And those boxes contained a substantial quantity of cocaine. In acquitting Hehn, Mr. Justice Leask observed: "He'd have had to have been out of his fuckin' mind to store it in his own locker, all right?" That the stuff was in Hehn's locker and two policemen saw him take it from there was apparently insufficient evidence. Mr. Justice Leask used profanity at least four other times and in front of small schoolchildren at that. Apart from all else, if I'm ever caught in possession of bad things I hope I draw Leask, J. as my judge.

Middle class freeze

Moving right along, this news story last week. "Middle-class Canadians are increasingly frozen out by the cost and complexity of Canada's judicial processes," Beverley McLachlin, chief justice of the Supreme Court, said last week.

"Many Canadians would have to consider re-mortgaging their home, gambling their retirement savings or forsaking their child's college fund to pursue justice," Chief Justice McLachlin said.

"Access to justice is quite simply critical. Unfortunately, many Canadian men and women find themselves unable, mainly for financial reasons, to access the Canadian justice system. Some of them become their own lawyers, or try to," she said.

"Hard hit are average middle class Canadians." In fact, only the very rich, who can afford it, or the very poor who get legal aid dare get into the gigantic money-grabbing maw called the justice system. And if someone does venture into that money-sucking game, what sort of justice can that person expect given recent events, as I've laid before you, of how lawyers use the rules to run up the costs?

So, is there a problem with the justice system? Or are these examples simply rare, unfortunate happenings that, after the fuss dies down, we can safely ignore?

I think they're real. I have vigorously defended judges whose decisions have been taken out of context by the media and blown out of all proportion. This is not the case here, where we have a heavy-handed government that wants to stack the courts with amenable soul-mates, and summon up judicial acts that cry out for reform so loudly that Canadians may well overlook what the Harper government does, as long as it does something.

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