Six-month POA Sentence Raises Eyebrows

Kenneth Heath

Kenneth Heath

A Toronto paralegal has filed an appeal over a “disturbing” custodial sentence handed down in Provincial Offences Court recently. A Justice of the Peace handed the single mother six months on her third conviction for driving while under suspension, despite an unheard agreement on sentencing.

Kenneth Heath filed an immediate appeal and his client is released pending that appeal, later this summer.

“There are several levels of wrong” with the sentence and with the sentencing phase of the hearing, Heath says. “I want this issue to be reviewed. There was no accident in this case, there was no victim. Six months seems excessive to me.”

Heath says news of his client’s sentence travelled “like wildfire” through the courthouse. Licensees, staff and police officers expressed shock, he says.

“The prosecutor and I discussed probation and a fine, but we did not have a chance to make that agreement in principle for two years probation and a $2,500 fine. I had told my client that we should expect that she may get some time. The Justice of the Peace said six months. My client just yelled, ‘Oh, my God!’ and dropped down in her chair. Her kids were crying. It was awful.”

Heath’s client — who approved his speaking publicly about the decision — had two previous convictions for driving while under suspension, along with $21,000 in fines. Her licence had been suspended since 2000.

Heath ordered the transcript immediately. The Justice Of The Peace said:

“Mr. Prosecutor, in regards to this matter, I am very sympathetic to this young woman. She may be a single parent. She may have eight children. She may be the only financial support. She may be the only person who is providing for her family. Absolutely not, under any circumstances, will the court agree to anything but incarceration. I don’t care to hear about her welfare, her Ontario housing support, her disabilities, her health of her child or herself or her kitten or her dog or her cat, no.”

What’s particularly troubling is there was never anything said, “on or off the record” about her family situation, source of income, housing situation — or any pets, Heath says. “She has five children, she has a job and she does not live in subsidized housing.”

Heath says he will keep Paralegal SCOPE readers apprised of the status of the appeal.

NOTE: It is important to remember the Rules, and be careful in Comments not to bring the justice system into disrepute. The matter is under appeal and the licensee is examining options available on behalf of his client.

12 comments

  1. Ronald Rybowski · · Reply

    I understand that on a Third charge and convection for Driving under that the defendant simply does not get it, she continues to commit the same offence. This said in our court system we all are to look at alternatives prior to incarceration, In fact putting a person in jail even for one day is to be a last resort, so if the Crown and Defense come to an alternative and they both are representing their respective clients and taking into account the facts then I do fail to understand were this JP can take such a position. Not only does it open the door to an appeal but it may jeopardize their own position. Even so not giving the appearance of a fair and just process does I submit put the Justice System in Disrepute. And yet we do come back
    k to the fact that the defendant has committed this offence more than a couple of times.

  2. Jeffrey Aikman · · Reply

    I would agree that this woman deserves a harsh sentence. With that said I believe that 6 months is a little excessive, especially considering the fact that a plea arrangement had been reached between the defendant and the prosecutor. In addition the judge should have taken into account the tremendous undue hardship she would endure if she had to do time. If the JP wanted to deter her from driving under suspension again in the future, perhaps he could have given her the 2 years probation with a stern warning that if she violates the terms of her probation, she will more than likely do some time.

    Curious to know the outcome of this case.

  3. mike rockton · · Reply

    point is, even if the joint submission was to keep her from driving, will she? Seems she has total disregard for the law.

  4. The problem here, Glynis, is that the Prosecutor and the Defence agreed on the sentence, which sometimes is difficult to do. The sentence they agreed upon was still a serious sentence, but it would not take this parent out of her household, possibly force her children into care (if she does not have a sister or other family to manage this for her) and this also exponentially decreases the chances that these fines will ever get paid, given the mark that will result on her employment record. While the JP doesn’t necessarily have to agree with the joint submission, it is clear from the transcript of the said case that there was no opportunity given before hand for either side to speak to sentencing or for the defence to raise mitigating factors. Otherwise, why bother having a prosecutor and a defence counsel? Just put the charge to the JP and let ‘er rip 😉

    1. I definitely agree with Angela in this. It is a matter of respect to honour a plea bargain achieved between the Paralegal and the Prosecutor unless the plea bargain is so outrageous that it offends the principles of justice. Unfortunately this was not the case in this particular matter and the Justice of the Peace did not evaluate all the factors but acted out of impulse. The Appeal will be granted for sure but the poor woman will forever have the bad feeling of being mistreated in the Court.

    2. Glynis Nicholson · · Reply

      Hi Angela:
      I hear what you are saying but when I read about the history of this particular driver and her disregard for the system, it got my back up.

      How many more chances should she be given to disobey the law?

      I am concerned for her kids of course, but how does that become someone else’s problem but hers?

      And she can still appeal, so it’s not like she won’t get a chance to undo what’s happened.

      If she does get a chance to change her sentence, then maybe ‘almost’ going to jail will be the wakeup call that straightens her out.

      1. The point here is that it BECOMES our problem instead of hers if her children get taken into care; it costs the taxpayers over $2300 per month per child to have a child taken into care. And, from what I am aware of the outcomes of children in care, it’s not good. I’d prefer a solution that would keep her at home, keep her working, but probably not driving for a long time …

  5. I am inclined to agree with Glynis. The entire situation is dreadful, to be sure. However, does the punishment fit the crime? Hmmm …

  6. Tracey Gauley · · Reply

    I am speechless.

  7. Glynis Nicholson · · Reply

    I don’t think that there is anything wrong with the sentence. I kept reading this hoping to be shocked at ‘something’ but it makes perfect sense to me. I think that the sentence fits perfectly.

  8. This is extraordinarily rare; while a justice of the peace does not have to adhere to a joint submission by the Prosecutor and defence counsel, taking it to this extremes not only avoids all sentencing principles but goes right against the whole concept of individualized sentencing, where the sentencing is for the offender and not just for the offence. The probation and fine sound reasonable, given the woman is working and has children, though a single mother. Now, incarceration is not the best way to deal with this, as now her children may have to go into care, and she is certainly not going to get any of her fines paid, as she will likely lose her employment and have difficulties seeking new employment. I find this unbelievable! I hope this gets completely overturned on appeal.

  9. Jorge Andres Steinmetz · · Reply

    I understand Ken Heath’s frustration over this situation.
    I know from my own observations in Court that comments about an individual can belittle defendants.
    Officers of the Court while sitting at the Bench should display the patience and the humanitarian qualities that make the public have respect for the justice system.
    It is only hoped that at some point the Judicial Council of Ontario will deal appropriately with any unacceptable behaviour of Justices of the Peace.
    I also hope that Ken will be successful in his Appeal and be able to obtain a result that will not bring the administration of justice into disrepute.

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