Tuesday, September 08, 2009
The Crown will not be appealing the lamentable decision of Justice Gregory Rideout in the Fernando Manuel Alves case. The rapist walks.
Here is the full text of a letter to me from Grant B. Wong, the Deputy Regional Crown Counsel in BC. My comments follow.
Thank you for your (undated) letter, faxed to this office on August 24th.
It is trite but important to note that each case is decided on its own unique set of circumstances or facts, and that each accused and each victim is unique in terms of his or her antecedents and circumstances. Each party, the Crown and Defence, taking into account the unique facts of each case and circumstances of the offender and the victim, and sentencing case authorities ("precedents") that are similar to those facts, then presents what they believe an appropriate sentence to be. The court has the difficult task of taking all of the above into account in crafting a sentence.
The Crown cannot appeal a sentence simply on the basis that it disagrees with it (that our proposed sentence was not imposed). Rather, the law is clear that an appellate court will only overturn a sentence if, in law, it is "unfit" - which has been legally defined as meaning that the sentence is clearly outside of the acceptable range of sentences that could have been imposed on this accused, based on these [sic] set of facts and antecedents.
While I am not at liberty to disclose them to you, suffice it to say that a considerable body of facts were [sic] placed before the judge in this matter, and extensive submissions, including references to applicable case precedents, were made by both the Crown and Defence, regarding the offence, the victim, the impact of the offence on the victim, the background of the accused, and so on - much more details and information than anything that might have been reported on in the media concerning this case.
Based on these facts, antecedents and case authorities, while the sentence imposed was not one that the Crown sought or agreed with, it is our conclusion that it was a sentence that could reasonably have been imposed by a court, and, therefore, not one that we can successfully argue was "unfit", as defined above. Accordingly, no appeal of this sentence will be launched in this matter. [emphases added]
Grant B. Wong
Deputy Regional Crown Counsel
To begin with, a small but perhaps not insignificant point. My letter was indeed dated. The date was August 22, and it was faxed that same day.
But two other more substantive issues arise:
First, walking free without serving a single day in jail for a brutal rape is, according to the Crown, not "unfit." Women in particular might disagree, but a male judge and a male Crown attorney and a male defence lawyer get to re-define that word out of all received meaning.
Secondly, justice, it seems, is no longer something that must be seen to be done. As a citizen I find it deeply offensive that the public is not entitled to know the specific reasons for handing down a sentence to a convicted criminal.
How dare the courts proceed out of the range of public scrutiny in this fashion? Perhaps someone better informed could advise whether a successful Access to Information request is possible.
In the meantime, there you have it. Justice in Canada, or in BC, at least: done in the dark, like a second rape.
UPDATE: It appears that Mr. Wong was merely being unhelpful. According to two commenters who are also lawyers, the reasons for sentence are public record, and a transcript may be ordered. Further update to come when I have sorted this out with the court officials.
Posted by Dr.Dawg at 11:59 AM