Concerning the Supreme Court, R v Pham, IRAP and Sentencing

The SCC handed down a decision on R v Pham. An appeal of a lower court sentence of 2 years for a conviction. The appeal was pursued due to consequences of a two year sentence on Mr. Pham's ability to appeal a deportation proceeding. An immigrant convicted of a crime and sentenced to more than 6 months must appear before an immigration board and to explain why they should not be deported. A sentence of two years or more immediately begins the deportation proceedings; no appeal is allowed. IRAP 36(1)(a).

The lower court denied the appeal of the sentence; they did recognized that reducing the term by one day would allow the defendant to appeal deportation, but as the purpose of that Section of the IRAP is there so serious offenders can be deported, reducing the sentence to allow the appeal defeated the purpose of the legislation. I note here, that the Crown did not oppose the sentence reduction. The SCC in granting the appeal and reducing the sentence by one day has overturned that decision.  The ruling can be found here. 

The SCC ruling entailed two ideas; judicial discretion and collateral effects. What the Supreme Court was saying in that ruling is that Judges have a right to discretion in sentencing. This is in the face of the Harper government's recent legislation to introduce a more mandatory sentences. The notion of mandatory sentences are popular with the conservative base but are recognized, even in places like the United States as being counter productive. Mandatory sentencing removes from the Judge their ability to act and respond to unique elements in trials; all cases are not the same and may require different approaches in sentencing. We pay Judges for their  knowledge and experience, it is a shame to render them incapable of using them. I will point out that the SCC gave Judges the leeway to alter sentences but must do so in relation to the crime and with an eye to the level if engagement by the defendant. Any reduction or increase in a sentence must be reasonable and proportionate to the crime. 

The other point raised in conjunction with Judicial discretion is what factors may be considered as relevant when sentencing. This case turned on a section of the IRAP dealing with deportations and appeals. The defendant was rendered incapable of appealing a deportation or due to the collateral effect of a two year sentence. A day less and the defendant would have leave to explain why he shouldn't be deported. The SCC  deemed it reasonable and within the judges discretion to reduce the sentence to allow Mr. Pham's appeal. Now the ruling was specific to this case; where a sentence remains reasonable and will allow an immigrant to purse an appeal regarding their deportation; the sentencing judge may reduce a sentence. I will again note that the SCC didn't give judges carte blanche to alter sentence to meet a defendants immigration needs; any alteration must be considered in relation to the crime and level of defendant's responsibility for the crime. A wider interpretation is that collateral effects of a sentence may be considered by Judges. This is a big strike against mandatory minimums.

I didn't here a lot about this decision in the news but I did find a small piece on the The Sun News site. The comments are what you want to read. 

The Supreme Court to Hear Prostitution Case

The Supreme Court is going to hear the appeal of of a prostitution case that has been in the works since 2009. Justice Susan Himel of the Ontario Superior handed sown a 2010 decision that struck down provisions of the criminal code, sections-210, 212(1)(j) and 213(1)(c). The effect was a de facto legalization of prostitution. The relevant provisions can be found in the Canadian Criminal Code . Those sections dealt with Bawdy Houses, living off the the avails of prostitution and communication for the purposes of prostitution.

Having appealed the initial decision in 2010 by Justice Susan Himel and after being turned back by the Ontario's Court of Appeals in March 2012, it's now in the hands of Canada's top court. The Federal Government will finally have the case heard by the Supreme Court.

The question is will the Supreme court up hold the lower court rulings. I don't know if they will but I know they should.

From a rights standpoint a woman's body is her own, period. She should be free from unreasonable prohibition or restraints imposed by the state. This is something women have fought for over a very long time, make the largest strides in the last 90 years. The right to vote, to be persons separate and equal to men, sexual and reproductive rights. To be sure, the right to be a sex worker was not specifically pursed but it does follow from command over your own body.

The sex trade has been around for a number of millennial. It has been at times been promoted, banned or ignored. The prevailing attitude in the West has been one of Church censure and illegality and a Secular authority that shifted from bans to regulation and sometimes outright recognition.

Our present Laws on sex work reflect the moral sentiment of the Church and rather less a practical method on how to deal with issues surrounding the sex trade. It is not an accident. The duty of the Church is to guard the moral fiber of society, to prepare the flock for the afterlife. Sex and Women are to really sore points for the Church. Women figure unfavourably in the literature, unless confined in or to their proper role. Over the centuries religion has lost its grip; Western Societies reflect this decline the expression of their Laws. We have tried to remove those moral elements that prejudiced our laws. Most specifically those dealing with the rights of religious minorities or Women.

So we have moved on, from the sexual revolution, the pill; embraced the notion that women are equal. The anticipated Armageddon never arrived. But some of our laws still bear a hint of that moral censure directed at women; and to be fair also male sex trade workers, but that is an issue that runs parallel to this one. Canada's top Court will finally get to rule on this issue and hopefully brush of the moral bits while keeping the bits that matter.

What our Criminal code must to be able to do is protect the Sex trade worker, presently it exposes them to harm.  There are occasions of assault, rape or the simple act of a customer failing to pay. You can't rely on the police, the civil courts can not enforce contracts commercial because you are engaged in an illegal enterprise. When you are outside the law you are vulnerable, exploitable.

The remedy is to treat a sex worker in part like other trades persons, offering civil and criminal protections. It is not an endorsement of the sex trade but a recognition that the sex trade exists and our first priority is safety of the workers not to fix moral opprobrium. What the Justice left in place gives you an indication of the thought process. All provisions dealing with coercion of any kind through drugs,violence or threat, remain in force. By far the greatest harm is centered on the ruthless exploitation of sex workers rather than a moral failing of selling sex.

To be frank, I may question privately the choice to be a sex worker, but it should remain that person's choice. The more informed the choice the better.

I do have some reservations. They revolve around the notion of selling your body, for however short a time. I have tried to consider it in the same vein, once again, as the trades person. They sell their labour. You contract with the electrician you don't own them. The issue of intimacy is different in detail rather than level of exposure, say with your Doctor or divorce lawyer. The real difference is in the social acceptance, or at least tolerance.

I also recognize that in a world where women are sexualised from an early age and their worth seemingly calculated on a scale of attractiveness, normalizing the sex trade might make life worse for women. I think perhaps my concern is premature. Removing from our society the myth of the Courtesan, by normalizing the nature of the sex trade, could be beneficial. Their is nothing less exciting than the banal. As well, returning to the women the control over their bodies that prostitution laws had appropriated, can be seen as a measure of good.

I expect that legalization will bring an improvement to women and men in the sex trade; a first step that removes the fear, the violence, and the moral turpitude from their lives.

Supreme Court ruling Opitz v. Wrzesnewskyj

The supreme Court of Canada handed down its ruling in Opitz v. Wrzesnewskyj . It all began as a very close election win for Opitz in 2011. He won by 26 votes. Accusations or irregularity resulted in a lower court ruling tossing out the results. This lead to an appeal to the Supreme Court and the decision today. In a 4-3 split the Justices declared the 2011 election in Etobicoke to be valid over turning the lower court ruling. I would have preferred Opitz's appeal be denied and a new election be called, but I perused the ruling and find I can accept the decision. I'm not a lawyer, but here is how I understand the Courts decision.

Four of the judges found no evidence of deliberate fraud concerning the irregular votes. They acknowledged that the paper work attached to these votes, was filled out improperly, but that the proper procedures for establishing eligibility were followed. In effect a clerical error not fraud. Having come to that conclusion they asserted that the right to vote must be upheld in cases of recording errors.

I can follow the logic and I agree with that conclusion. The right to vote is the basis of the Democratic society. The right to select our own leaders should be as wide and as little encumbered as is reasonably possible. Where there is no evidence of deliberate fraud benefit must be given to the voter. In effect establishes the belief that it is likely that more people would be disenfranchised than voter fraud prevented; if clerical errors/procedure were allowed to effect eligibility. Anyone following the American politics has noticed attempts to legislate vote suppression through ID laws. This in the face of little no evidence of in person voter fraud.

The dissenting judges looked at it differently. They also saw no deliberate evidence of fraud either, but maintained that voting is combination of action and eligibility. This means that establishing eligibility is part of the voting process, as is the recording of that fact properly. If the act is not carried out in whole then, while not being fraudulent it is still not allowable. This is easily understood as the "maintenance of a systems integrity" the appearance as well as the fact of being correct. The consequence is that it disqualifies a vote that can not be shown to have met the standard. This would certainly prevent fraud, but also through error disenfranchise.

So we are here; that voter eligibility must be confirmed but errors occur, but that such errors can't be allowed to disenfranchise citizens. We can't with certainly reduce all fraud or error, but it would appear we can do better than we do now. Those that work these elections must be prepared to carry out their duties. It is incumbent on Elections Canada to provide for better training of those who undertake the responsibility of manning our election stations. I don't expect error free elections. Though I do think we can spend the money necessary to make them as close as reasonably possible. It is the least we can do.