EDITORIALS, LOCAL NEWS

THE LAW IS AN ASS – Manitoba Judge Clueless

Jackie the Donkey

Another Manitoba Judge has joined the list of recent contributors to the ridiculously soft Canadian Justice experience.

Provincial Court Judge Mary Kate Harvie, a former defense attorney,  joined fellow Judges Colleen Suche and John Menzies in their apparent quest to undermine Parliament and the safety and security of our law-abiding citizens.

Suche & Menzies joined the elitist club after they disregarded mandatory minimum sentences for offenders who were convicted of serious firearm offences.

Harvie joined the club after she made a ruling that an habitual serial property offender could argue for “enhanced credit” for a part of the eighteen (18) months he’s spent in pre-trial custody.  Her ruling undermines Federal Legislation that abolished the discretionary practise of giving criminal offenders generous credit for pre-trial custody.

Under the new law offenders are to receive 1-1 credit for pretrial custody but may receive 1.5 – 1 credit if some form of exceptional circumstances are present.

Do some form of exceptional circumstances exist in this case?

The case involves an habitual serial property offender named Gordon Kovich (23) who plead guilty to fifteen (15) break & enter offences where property in the neighborhood of $100,000 was stolen.

In her ruling Harvie suggests the Federal Law is a serious affront to convicted offenders, “Fundamental right to life, liberty and security of the person.”

For those of you who may not be aware, the controversial application of the 2-1 pre-trial credit was killed by the Conservative Government in February 2010 when the Truth in Sentencing Act or Bill C-25, came into effect.  Prior to the law coming into effect, some Judges applied as much as 3-1 credit for some offenders.

The liberal application of pre-trial credit had serious implications for the Justice System.  Many offenders who were denied bail simply languished in the Provincial Remand Center racking up pre-trial credit taking advantage of an extremely flawed Justice System.  Remand populations were bloating and the back log of cases proved to put increasing pressure on a Court system that was already overburdened.

The 2-1 discounts on Justice drew outrage from the Police and Public when several of the thirty-five (35) Manitoba Warrior gang members arrested during “Operation Northern Snow,” (1988) simply walked out of jail after doing two (2) years of dead time.  The four (4) year sentences they received were essentially de-boned when the Courts credited the gangsters with the generous 2-1 pre-trial credit.

The Justice System had become a sad joke and something had to be done to restore some semblance of respect for the administration of Justice.  The Truth in Sentencing Act was supposed to be the cure that would ensure our Justice System regained some of that lost respect.

Not according to Judge Mary Kate Harvie.

Judge Harvie suggests the new law creates “gross disproportionality” between individual offenders at sentencing because “those denied bail” can spend significantly more time in jail than others…..and that’s contrary to fundamental justice, or so she writes in her twenty-four page decision.

Does any of this make sense?

“Those denied bail,” lose their liberty for any number of reasons that all fall back on their own criminal behaviour.

As a Sergeant in charge of Uniform Operations it was my duty to review each arrest and make a determination regarding a suspects release or detention.  Bail is denied for the following reasons;

  • To protect the victim (s) of crime
  • To protect the Public
  • To prevent a continuation of the crime or the commission of another offence
  • To ensure court attendance

Other factors include;

  • The seriousness of the offence (s)
  • The strength of the case against the offender
  • The offenders criminal record
  • Is the offender currently on charge for another crime
  • Does the offender have a fixed address
  • Does the offender have a record for failing to appear in Court or failing to follow conditions of release, bail or probation
  • Did the offender threaten to kill a victim or witness or obstruct justice by intimidating witnesses
  • Is the offender likely to receive a lengthy period of incarceration for the crime

Yet despite the fact offenders are denied bail because of reasons directly related to their own criminal behaviour, Judge Harvie believes the law is sacrificing the right to “life, liberty and security of the person,” of unrepentant repeat offenders like Kovich.

Even more disturbing is the fact Judge Harvie, and others like her, are willing to champion the “rights” of criminals who have been denied bail.  The offenders in this select class are denied bail primarily because of their continuous criminal record.  A criminal record is an accumulation of all historical convictions registered against an individual.  A criminal record is a history lesson.  Like any record, certain assumptions can and should be made regarding past criminal behaviour.  If you read the “Complete Idiot’s Guide to Psychology,” (2003) you would learn, “When it comes to human beings, the best predictor of future behaviour is past behaviour.”

During my career as a criminal investigator I often conducted informal polls with the serial property offenders I encountered.  Every time I interrogated a serial property offender I would ask them questions regarding their arrest to offence ratio.  After interviewing dozens of these dedicated criminals I concluded most prolific serial property offenders suffer arrest in only 1 out of every 50 crimes they commit.

Judges like Mary Kate Harvie should be alert to this kind of institutional knowledge when they deliberate on sentencing decisions for serial property offenders.  Rather than worrying about “gross disproportionality,” Judge Harvie should be targeting committed criminals like Kovich for greater punishment.

In a balanced Justice system, Judges like Harvie would be more focused on the rights of the property owners victimized by Kovichs’ crimes.  Do business owners not have a fundamental right to, “life, liberty and security of the person.”  How about the right to run a business without having shit rats like Kovich breaking into their property and stealing thousands of dollars of their merchandise.

Judge Harvie clearly fails to recognize the implications of her participation in the revolving doors of Justice.  Habitual serial offenders like Kovich place a tremendous strain on over stretched Police resources as patrol unit after patrol unit responds to the trail of destruction left in the aftermath of their crime sprees.  Offenders like Kovich are a big part of the disease that infects our City.  He is one of the elite, committed criminals who occupies a place in the top 5% of offenders who perpetrate the vast majority of crime in Winnipeg.  His criminal record is long, continuous and unenviable.

The Crown, recognizing these factors, is seeking a sentence of seven (7) years incarceration.  The Defense, of course, is seeking a grossly disproportionate sentence of four (4) years with a further reduction of twenty-six (26) months for time served and enhanced credit.

While Gordon Kovich may be an extraordinarily prolific serial offender, his case certainly fails to meet any threshold that would place it in the “exceptional” circumstance category.

Unfortunately, Judge Harvie has opened that door for Kovich and many other offenders like him.

Much like Justice Suche & Menzies, it appears as though Judge Harvie has confused her role on the bench with that of defense lawyer and champion for offender rights.

It’s all just another unfortunate kick in the groin for Justice in Manitoba.

RELATED LINKS:

Winnipeg Free Press – James Turner “Manitoba Judge Defies Feds Sentencing Law”

The Police Insider – Manitoba Justice to Challenge Rogue QB Judges”

10 Comments

  1. Karl…

    Thank you for weighing in and providing your insights.

    I never mentioned parole because I didn’t want to unnecessarily complicate the issue or prolong the story.

    As far as being incorrect regarding the use of the word exceptional circumstance would it surprise you if a defense lawyer and former Police Officer disagreed on the issue. You are correct that the term “exceptional” does not appear in the law as it is written but surely you would agree that some form of “out of the ordinary” or “exceptional circumstance” must be present to meet the criteria of “when circumstances justify it.” I think the intent of Parliament was pretty clear on the issue.

    When it comes to dead time credit I am very much opposed to offenders receiving anything but 1-1 credit. The saw off on the Truth in Sentencing Act saw them use a conciliatory approach that made it possible for 1.5 – 1 credit when “circumstances justified it.”

    I see it as a common sense argument, why should offenders get rewarded with extra time when the reasons they are denied bail falls squarely on their own shoulders due to their criminal history. Shouldn’t dedicated criminals have to suffer some form of consequence for participating in a life of crime? The inability to secure bail is a consequence of their criminal conduct.

    It seems to me that common sense principals need to be injected into our Justice system. I’ve witnessed dozens of sentencing hearings and watched as Judges, Crown Attorneys and Defense lawyers participated in endless arguments regarding the amount of credit offenders should get for pre-trial custody. I’ve seen it all, fuzzy math, complex formulas, confusing arguments, outrageous theories and pleadings for extraordinary leniency. It shouldn’t have to be so complicated.

    So yes, I agree that Kovich should not be punished for asking the court to go to a treatment centre.

    I just don’t believe he, or any other habitual criminal should have the right to be rewarded with more than 1-1 dead time credit.

    Regardless, I respect your opinion and appreciate your contribution to the story.

  2. James, as the lawyer who argues the case, I would like to make two points you omit from your article, which are fundamental to understanding the case and the ruling the judge made:

    1. You never mention earned remission or parole. The vast majority of offenders never serve their full sentences. If they are doing provincial time (<2 yrs) they are almost all released at 2/3 of their sentence, and almost none serve their entire sentence. If they are doing federal time, they can apply for parole at 1/3 of their sentence and most get stat release at 2/3. When calculating eared remission and parole, pre-sentence custody is not taken into account.

    2. You are incorrect that Truth in Sentencing requires "exceptional circumstances" in order to award 1.5 credit. The law, as written, says 1.5 credit can be awarded "when circumstances justify it." There is nothing in the law about exceptional circumstances. And the law has been interpreted that lost of earned remission or parole is one of those circumstances. HOWEVER, an accused must convince they court that they would got earned remission or parole based on their conduct while on per-sentence custody. The ruling simply said Kovich should have the right to do so as well.

    You must also take into account that a bail hearing is decided on allegations with loose rules of evidence, and a lower standard of proof. Under our system, when someone is sentenced it is only on proven or admitted facts. And how pre-sentence custody is awarded is part of sentencing.

    It is very important to understand that had Kovich not made a bail application he would have been eligible to apply for 1.5 under the existing law. Kovich made a bail application to a residential treatment centre to address the underlying cause of his offending behaviour. Because of that, he was ineligible to apply for 1.5. And while there may have been very good reasons why his bail was denied, do you really think he should be punished for just asking the court to let him go to a treatment centre?

    At the end of the day, this ruling has nothing to do with deciding what is the appropriate sentence for this particular repeat property offender. That is a separate question, and one in which his criminal record will most certainly play a central role. This is about basic fairness and the principle that how much time someone spends in jail should be based on what they have done and their personal circumstances and record – not on whether they made a bail application or not. Wasn't that the problem with 2 for 1 in the first place? All the possibility of 1.5 for 1 does is allow courts to maintain parity between pre and post-sentence custody by taking into account the loss of earned remission.

  3. We wouldn’t have these issues with sentencing or bad case law if judges were elected and held accountable for their decisions.

  4. Thanks you so much for your kind words and generous support.

    As a recent retiree I am only starting on my literary journey.

    I’ve written a true crime (short) story regarding the tragic murder of Elizabeth Lafantaisie, a wonderful woman who was killed by a habitual offender named Thomas Brine in the spring of 2011. I was charged with running the investigation.

    The case is currently before the courts and goes to trial in Sept of 2014.

    Once the case is concluded in the Law Courts I intend to publish the story….

    I have plans to continue writing on a variety of other cases and truly appreciate your interest.

    Thanks again.

  5. Hi James from Nola. I truly enjoy reading your articles, and keep wondering…with all your years of experience, and what to me is a wonderful style of writing…have you every thought of writing books..for both paper and electronic (kobo) publishing. True crime…truth is stranger than fiction? It is possible, you already have done this, and if so, please tell me how I find the material published.

    I truly value your experience, your viewpoints and your style of presentation.

    Respectfully, Nola

  6. Hi James. I totally agree with your reasons for concern, but am also well aware that they begin young, and often become repeat offenders. Perhaps this is where we should begin. I was a Toronto Grade 6 teacher for 36 years…Grade 6 is the year the police have involvement in teaching our classes throughout the year, culminating in all day in court. In 1984, when the Young Offenders Act came in force, shortly afterwards, I was travelling to Scarborough Town Centre,and came across a police block of flashing cars which had closed off a huge section..and continued for many hours. At the time, I had several friends who were police, including Toronto Mounted. We discussed this new law because I was responsible for teaching this to my students.

    Immediately after the closing of the streets, television revealed a triple murder…husband wife and young girl around 6, shot with rifle…but what I noticed is that they never revealed the names of the murder victims. It was also revealed that an 11 year old boy had been arrested, and of course, remained unnamed. At that time, the sentence was 3 years for murder. The boy had murdered 3, and served 3 years,..one for each destruction of life. Like you say…the law..perhaps has always been an ass. At the same time, we also heard of the tiny two year old abducted by two young offenders, caught on video escorting him out between them, holding his hands. He was also murdered, but we know both his name, and that of his murderers, while ours remained protected from knowledge. http://en.wikipedia.org/wiki/Murder_of_James_Bulger

    In wisdom, such young offenders should never be placed with older offenders, and the efforts to protect them from public awareness is in hopes that..maybe they will change if their identity is not revealed, and give them a chance without PREJUDGING. England did reveal.”Thompson and Venables were charged on 20 February 1993 with Bulger’s abduction and murder.

    The pair were found guilty on 24 November 1993, making them the youngest convicted murderers in modern English history. They were sentenced to custody until they reached adulthood, initially until the age of 18, and were released on a lifelong licence in June 2001. In 2010, Venables was returned to prison for violating the terms of his licence of release.

    The case has prompted widespread debate on the issue of how to handle young offenders when they are sentenced or released from custody.[4][5]”

  7. I appreciate your articulate comment and might even agree with you if the elimination of the 2-1 credit hadn’t been one of the greatest advancements in criminal Justice in the last decade or so.

    The other issue is that the Judiciary is often completely out of touch with the populace while Parliament is, in theory, alert to the will of the people…

    I don’t think we should have to move to a Police state in a third world Country because we long for a Justice system that places more emphasis on the rights of victims over those of offenders.

    Just my opinion.

    Thank you for sharing your thoughts.

  8. Parliaments in Canada is not perfect and at times they enact legislation that is contrary to the Constitution. It is the role of the judicial branch of government to ensure that constitutional rights are upheld. So, despite the fact that a law was enacted does not mean that it is fair or right. It is cases like this that push the law. If J. Harvie made a poor decision, it will be appealed and a higher level court will have its own day. Otherwise, it is a valid decision that creates a precedent for others. Defence lawyers fight these cases for their clients but they pave the way to protect the rights of all citizens. If you want to live in a police state where might makes right and the end justifies the means, many African countries are looking for people. If you want to be in a free and democratic society, you’re stuck here. But I think that’s a good thing.

  9. I don’t apologize for being concerned about soft justice issues…

    I understand what the ruling allows….

    I just don’t agree that the Courts should be wasting our time allowing serial offenders like Kovich to have the ability to make the argument when the will of Parliament was pretty clear on the issue.

    I also realize Judges can’t sentence based on bias of law enforcement but in the case of serial offenders I think they should be alert to the broad based impacts of their crimes and their arrest / offence apprehension ratio. It might be time for a “formal” study on serial property offenders so these realities can be put before the Courts during serial offender sentencing hearings.

    These are they guys driving the outrageous crime numbers that plague our City.

    The impact of serial property offenders are felt by all of us in one way or another.

    I think the majority of law abiding citizens are concerned that Judges worry more about offender rights than protecting the general public.

    Thank you for adding to the discussion.

  10. You need to relax a little, James. The ruling allows Kovich to argue for enhanced credit. That’s all. Doesn’t mean that she or any other judge will give enhanced credit, just that he’s not debarred from asking.

    And suggesting that Judges should be alive to “ratios” elicited from your “informal polls” is facile. Judges cannot be partial to either side in examining the cases before them. They’re obliged to consider all circumstances – mitigating and aggravating – before them. They can’t walk into a sentencing with the obvious bias of law enforcement for high sentences, nor can they roll over to soft sentences suggested by defence.

    It’s all shades of grey, my friend. Nothing in life is black and white. Your informal polls should also have alerted you to that fact.

Share your thoughts - we value your opinion!