In an important test case presided over by a special five-judge panel, the majority said that reducing sentences by taking bail conditions into account would flout the will of Parliament.
"Put bluntly, bail is not jail," Mr. Justice James MacPherson wrote on behalf of Madam Justice Eleanore Cronk and Madam Justice Eileen Gillese.
The case involved three Toronto men - Arjun Panday, Maneesh Jalota and Julian Yue - who were convicted of several offences arising from their attempts to muscle into the South Asian nightclub entertainment business. Using firearms to threaten their victims, the men demanded payments in return for "security services."
Mr. Panjay and Mr. Jalota spent 32 months on strict bail conditions awaiting trial. Mr. Yue spent 34 months on bail.
While the mandatory minimum sentence for their offences was four years behind bars, Ontario Superior Court Judge Mary Lou Benotto sentenced them to about six months less than the mandatory term after taking their strict bail conditions into consideration.
Crown counsel Gillian Roberts argued that the whole point of a mandatory minimum sentence is to prevent judges modifying punishments that are deemed particularly important to society. In addition, she said, bail does not constitute a true deprivation of liberty.
"Parliament has the clear jurisdiction to establish minimum sentences," the majority agreed. "Judges may not like such sentences because they are perceived as harsh or because they reduce judicial discretion in the sentencing process. However, that is the effect of mandatory minimum sentences which, by definition, remove much of the discretion that sentencing judges otherwise possess."
However, Mr. Justice Robert Sharpe and Madam Justice Janet Simmons rejected the majority's hardline approach, saying that the harsh circumstances involved in some bail conditions warrant leniency.
"Strict conditions amounting to house arrest significantly constrain liberty and push bail towards the total deprivation of liberty end of the continuum," Judge Sharpe wrote in the minority opinion.
Judges and prosecutors need discretion, often jail or substantial jail sentences serve no positive effect to the victims, society or the perpetrators. In fact the politically correct demand for vengeance is continuously increasing our jail population while creating social problems that are solved short term by warehousing a fraction of society and at the same time causing society long term problems and costs that is prejudice that often far outweighs any positive value other than political points.
Mr. Justice Robert Sharpe and Madam Justice Janet Simmons are to be commended for standing up to the political dictates of government and showing some judicial independence. It is truly great to see judges follow their conscience and go about the business of law with dignity and respect while the rest of the gang of corrupt political lapdogs make political rather than legal decisions.
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