Kirk Makin
From Thursday's Globe and Mail Published on Wednesday, Dec. 02, 2009 8:40PM EST
Defying community anger and Canada's drift toward more punitive, U.S.-style sentencing laws, an Ontario judge has given two aboriginal youths a lenient punishment for burning down a venerable community building.
Mr. Justice John Keast of Superior Court in Sudbury, Ont., said that probation and a strong dose of rehabilitation is better than throwing the boys, aged 12 and 13, into secure custody.
His sweeping condemnation has trained a light on one of the most divisive issues in the Canadian judicial system: growing discontent over the federal Conservatives' harsh sentencing policies.
Judge Keast urged Canadians to wake up to the fact that stiff penalties brutalize society, do nothing to prevent crime and waste staggering amounts of money.
His ruling, which one law professor called “the most interesting and thoughtful sentencing decision in years,” follows an unusually tough speech this week by Ontario Court of Appeal Justice Marc Rosenberg.
Judge Rosenberg, one of the country's top criminal law minds, denounced the Americanization of sentencing policy in an address to a Criminal Lawyers Association conference in Toronto.
The Sudbury case involved two youths who used a can of gasoline to torch the 61-year-old Steelworkers Hall – a hallowed hub of community life, in September, 2008. It took 26 hours for firefighters to extinguish the $8-million blaze.
Judge Keast determined that locking up the arsonists would “satisfy a certain primal desire for punishment,” but create a pair of hardened criminals.
He then used their example to mount a pointed criticism of the Canadian justice system, noting that scant money is put into eliminating the roots of crime: poverty and mistreatment of the aboriginal population. “Canada lags behind most western democratic countries,” he said.
Prison populations are set to swell after federal legislation created new mandatory minimum sentences, restrictions on parole and the virtual elimination of conditional sentences.
He said the federal government is shirking its responsibility toward generations of aboriginals who have suffered because of the residential school system. “The federal government offered a profound apology last year, but that apology has not been backed up by proper funding and resources to target the devastating consequences of the residential school system,” he said.
Judge Keast noted that both offenders lived in homes marred by alcoholism and violence. One has been shuffled among foster homes for most of his life, while the other grew up on a reserve.
Kevin Conley, treasurer for the Sudbury Steelworkers local, said that many Sudbury residents appear to have accepted Judge Keast's reasoning despite their fury over the burning of the hall.
“I think that they got off lightly considering the effect this fire had on the whole community, but the judge was in a tough position,” Mr. Conley said, adding that the sentence would be easier to swallow if there were rehabilitation programs.
“These young fellows should have to see what fire does to people,” he said. “They should be exposed to a burn unit. They could listen to those people scream.”
Judge Keast said that Canada would do well to emulate Scandinavian countries, which pour money into social programs, rather than responding “with the mantra of jail.”
He said that most criminals are shaped by poverty and lack of opportunity: “Most of today's serious criminals were once victims.”