Leora Shemesh Blog

Today I was in bail court in Milton Ontario. When I arrived, I waited for my matter to be called and in the prisoner box stood a young female, no more than 15 years old in handcuffs. There is something inherently unnatural about a 15 year old – barely able to see over the prisoner doc – who is in steel handcuffs with tears in her eyes. When I looked around the court room there was no one else there. No crying mother or father ready to do absolutely anything to get their sweet child out of jail. Instead, the crown advised the Court that she was a ward of the state. She was officially in the care of Children’s Aid Society and she resided in a group home. She had gotten herself into some trouble and had been released on some conditions for which she was to abide by. Today, she stood before a Justice of the Peace in handcuffs because she had ran away from her group home at 3:00 o’clock in the morning.
I sat there thinking about all the times that I had left home or not returned on time and my parents scolded me. They may have punished me for days or taken away privileges or made my life miserable – however, they never called the police. Instead, this 15 year old was placed in jail, handcuffed and for what? for running away from a government run group home.
The Justice of the Peace turned to her and asked her what she wanted to do with her life and her answer was as innocent and as pure as any 15 year old – “i want to be a doctor” “I want to help people”
The Justice of the Peace reminded her how important it was to set her goals, go to school and to make something of herself. But, what he forgot to tell her was that she needed love and support. Something that perhaps he had forgotten and so did everyone else in that room.
There is a human element to all of this and somehow or another that seemed to have been forgotten today.

The newspaper has reported a case about a woman who was on legal aid who had been facing a series of criminal charges that were quite serious in nature who had hired a criminal lawyer. Apparently that case did not go well and the woman was found guilty before a Superior Court Judge on appeal. Apparently this woman had complained that the service she was provided was not top notch and in fact, she told the Court through her appeal lawyer that her previous lawyer failed to represent her properly and that she felt compelled to give him cash monies just so that she could get his attention and have him pull his socks up and represent her properly in court. She told the Appeal Court that she paid the criminal lawyer $1,000.00. The lawyer was cross examined in Court and he testified that he did not take $1,000.00 but rather took $300.00 which he says, was “stuffed into his pocket.” The lawyer says that this was a “Christmas Gift” from a woman who was legally aided by the Government.

This news reporting comes at a time when criminal lawyers are begging the government to increase our wages – to pay us fairly for the work that we do for clients. The public may wonder now – whether all criminal lawyers accept cash payments from their clients who are legally aided….

The Court of Appeal released the decision of Regina v. Song on December 16th, 2009 indicating that it will be rare that conditional sentences (non prison sentences) will be granted in cases involving large residential marijuana grow operations. In Song, there were 1,200 marijuana plants and a by pass of electricity. The trial judge in Song found that a conditonal sentence was an appropriate sentence as he had essentially implied that the laws with respect to marijuana and the cirminalization of marijuana offences and offenders was itself unreasonable. He did not just come out and say that – but he made it pretty clear that he felt that by sending someone to jail for growing marijuana was not going to be stopping anyone from growing marijuana in the future. He felt that the level of detterrence was pretty minimal.

The Court of Appeal quite harshly criticized Justice Allen and found that his views “whether they have merit or not” may be a debate for another forum but that the Judge should not articulate his own “personal diatribes” while engaging in his job as a sentencing judge. The Court of Appeal found that the judge’s decision demonstrated a lack of objectivity that undermined the usual deference the Court grants judges in our lower courts. The Court of Appeal finally commented that Justice Allen used this sentencing hearing as nothing more than a dia for his polical podium.

I guess the question is – isn’t that what judges are supposed to do? i had thought that judges customarily bring with them their own personal views, objectives and politics into the judicial arena – as they apply the law and apply good common sense. I thought that is what Justice Allen did. It just so happen – unfortunately to be in contravention to a Court of Appeal Judge’s own views and politics on the issue of marijuana and cultivation.

Just my tid bit for today.