The Ottawa Citizen
21 March 2012
By Christie Blatchford, Postmedia News March 20, 2012
As Manitoba provincial court Judge Catherine Carlson said Tuesday as she passed sentence on former junior hockey coach Graham James for his prolonged sexual attacks on former National Hockey League star Theo Fleury and his cousin Todd Holt, “There is no sentence this court can impose that will give back to Mr. Holt and Mr. Fleury that which was taken by Mr. James.”
True that, but wouldn’t it be nice if just once in a while, a judge gave it a whirl?
Carlson sent James back to jail for a whopping two years, but of course, like all inmates, he’ll be eligible for passes and day parole after serving six months and full parole after eight months, or a third of his sentence.
That’s for hundreds of acts of sexual abuse over many years committed against two trusting young teens, as Fleury and Holt then were, who were first in James’ thrall and then firmly under his control.
Much the same thing happened in 1997, when James pleaded guilty to sexually assaulting two other boys he was coaching, including former NHLer Sheldon Kennedy: Again, the offences ran into the hundreds, the days ran into years, the abuse was physical but also a grotesque betrayal of trust, and that time, the sentence was 3 1/2 years, of which James served about 18 months.
Now in her lengthy reasons released Tuesday Carlson had her reasons — chiefly, the principle of totality (which required her to take into account James’ earlier sentence and the fact that the current assaults dated from the same time period) and all the decisions by other judges that came before hers.
Common sense is not so constrained or constipated, and it is that which sometimes separates the law from public opinion.
There’s a recent case from the Ontario Court of Appeal that nicely illustrates this chasm.
The case is known by its initials to protect the young victim, R v P.M., a man who over the course of a year had forced anal and vaginal intercourse with his daughter, who was 13 and 14 at the time, and who also videoed and photographed some of the assaults, which he kept among his vast collection of child pornography.
During two of the videos, the Appeal Court noted, “the victim is heard to repeatedly beg her father ‘Daddy please stop!’ ”
He replied, respectively, “Shut up” and “Shut the f— up.”
Now at trial in the fall of 2010, Ontario Court Judge Stephen Hunter imposed a sentence of five years for the various assaults (P.M. pleaded guilty to sexual assault, incest, sexual interference, making child porn, and possession of child porn), a year consecutive for the child porn offences, and six months concurrent for some additional firearms offences, adding up to a total sentence of six years (minus, of course, 22 months credit for 11 months of pre-trial custody).
The Crown appealed, on two grounds — one involving the lightness of the sentence itself, the other on the judge’s failure to view a disc showing the commission of some of the sexual offences daddy dearest had thoughtfully videoed.
Hunter, unbelievably to my mind, refused to view the disc in part because the victim (who, with her mother, was supportive of P.M.) was in court. He sought her opinion of whether the disc should be played, and unsurprisingly, she didn’t want it to be. Hunter said he’d been counsel previously for a children’s aid society and had been on the bench for almost 20 years and had “viewed countless videos of a similar nature” and thus he didn’t need to see this one to understand the impact of what the father did.
And the judge also said that the prejudicial effect of the viewing to the victim far outweighed the probative value to the court.
Two judges of the Appeal Court, the author Marc Rosenberg and James MacPherson, found that though the sentence “was a lenient one and at the bottom end of the range,” and that the one-year sentence for the child pornography offences, “standing on its own would have been inadequate.”
But apparently, added together, as a global sentence of six years, judicial math rendered it “lenient but it was not clearly inadequate.”
One line in the 30-page decision stood out to me.
It was about the deference Appeal Courts owe to trial judges and it went like this: “In my view, this functional justification applies as much to the conduct of the hearing, including the decision as to whether the prejudicial effect of the proposed evidence outweighs its probative value, as it does to the decision of quantum.”
This is just an aside, but is there anyone in Canada outside the courts who understands that? Who ever speaks like that?
I prefer the dissenting judge, Gloria Epstein, who said Hunter should have watched the video (“the images do not only depict the crime — they are the crime”), that he could have cleared the public from the courtroom to spare the victim (and she might have left the room herself) and that without having seen it, he was in no position to assess its value.
Epstein would have imposed a nine-year sentence.
Only in the circles in which she moves would she be considered a hard-ass, but I bet she is, as Carlson would be deemed fair and reasonable, which means just like most of the rest of them — curiously unwilling to acknowledge that child sex abuse remains under-valued and under-punished in this country, and unwilling, in the one case, to even look at it.
“A national travesty,” Todd Holt called it when he heard of the James’ decision. I think he’s right on the money.
Graham James could be out of prison by fall
Posted: Mar 21, 2012 9:19 AM ET
Last Updated: Mar 21, 2012 9:28 AM ET
Disgraced former junior hockey coach Graham James could be out of prison before Christmas.
He was sentenced Tuesday to two years behind bars for sexually assaulting two former players — ex-NHLer Theoren Fleury and Fleury’s younger cousin, Todd Holt — while coaching them in the junior hockey ranks during the 1980s and early ’90s.
James was sentenced to two years for each offence, but the sentences will be served concurrently.
But University of Manitoba Law professor David Deutcher says all inmates have the opportunity get early parole after serving only one-third of their sentence — and most are paroled after two-thirds of their sentence.
“So whatever sentence you hear, that’s not generally what the individual will serve,” he said.
Because the sentence was two years, James will serve his time in a federal penitentiary. Had the sentence been one day less, he would be heading to a provincial jail.
The court did not say where James would serve his time.
The Crown had sought a six-year prison term for James on the latest charges.
The defence wanted a conditional sentence with no jail time. The conditional sentence, of 12 to 18 months, would have included a curfew, monitoring and counselling.
The two-year sentence is drawing the ire of hockey parents in Winnipeg.
Ramona Thomson, who has three young girls playing hockey, is outraged.
“I think it’s actually an embarrassment that he only got two years, because he did really ruin people’s lives,” she said.
“I feel that for what he did, [the sentence should] ruin his life because he’s ruined so many. I think it’s really, was just, a huge scar on the Canadian hockey association.”
Thomson said she regularly talks with her daughters about what is appropriate behaviour from their coaches.
Evan Roitenberg, James’s lawyer, said Carlson made a “very reasoned and fair decision,” even if the two-year prison term is longer than what he had wanted.
“I have no quarrel with the fact that this judge did a very thorough and reasoned decision, [taking] all factors into account,” Roitenberg told CBC News in an interview.
No cameras in courtroom for Graham James sentencing
The Toronto Star
Published On Mon Mar 19 2012
Graham James walks out of a building following his sentencing hearing in Winnipeg on Feb. 22, 2012.Trevor Hagan/THE CANADIAN PRESS
The Canadian Press
WINNIPEG—The sentencing of disgraced former hockey coach Graham James for sexual abuse won’t be shown on television.
Judge Catherine Carlson has ruled that live TV cameras won’t be allowed in the Winnipeg courtroom during the sentencing Tuesday.
“This case is highly charged enough. It’s not going to become a spectacle,” Carlson said in her ruling.
“The court also has serious concerns about setting precedent in a sexual assault case.”
The decision means the wider public won’t get a chance to see James, since he has managed to hide his face whenever he has been out in the open.
A media consortium argued people have a right to know what James looks like so they can protect themselves.
James’s lawyer and the province argued that broadcasting his image would violate his privacy.
James pleaded guilty in December to repeated sexual assaults on two former junior players — Theo Fleury and Todd Holt — when they played for him in the Western Hockey League in the 1980s and ‘90s. Fleury would go on to star in the National Hockey League with the Calgary Flames.
The Crown is seeking a six-year prison sentence. The defence is asking for a conditional sentence with no jail time.
The media, represented by lawyer Bob Sokalski, argued that cameras in court are a natural extension of an open, public judicial system. The case is especially in need of television coverage because James has worked and lived in other jurisdictions such as Saskatchewan and Quebec, he said.
“The public has a right to know who has been convicted and what they look like … so the public can know and protect themselves,” Sokalski said.
James’s defence team opposed the idea, arguing pictures of what James looks like now could put him in jeopardy. His lawyer, Evan Roitenberg, said RCMP have told him someone has written a letter threatening to kill James.
“The threat was real, substantial and quite deadly,” Roitenberg said. “Mr. James has taken pains to shield his identity. Why? Because of security.”
The province also opposed the idea.
Heather Leonoff, a lawyer for the Manitoba government, told court the cameras could prove a threat to the safety of sheriff’s officers, clerks and judges. People upset with court decisions could take it out on judges or attorneys when they are out in public, she said.
The presence of cameras would not do anything to educate the public about the justice system, and would instead be “complete voyeurism,” Leonoff added.
A rising coaching star in the junior hockey world, James first gained infamy when he pleaded guilty in 1997 to sexually abusing Sheldon Kennedy, who would also go on to play in the NHL.
James served about 18 months of a 3 ½ year-sentence before he got out of jail in 2000 and dropped out of public view.