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Justice Department reviewing two-year James sentence

Mar 21, 2012, 3:23 PM EDT

Graham James

As the outrage builds over the two-year prison sentence Graham James was handed yesterday, the Manitoba Justice Department is considering the merits of an appeal, reports the Winnipeg Free Press.

Provincial Court Judge Catherine Carlson handed down her decision in a packed Winnipeg courtroom and was almost immediately criticized across the country for being too lenient on the former junior hockey coach.

He had pleaded guilty to repeatedly and systematically sexually abusing former NHL star Theoren Fleury and Todd Holt, Fleury’s younger cousin, when he coached them as teenagers during the 1980s and early 1990s.

The Crown wanted a six-year sentence while the defence asked for a conditional sentence with no jail time.

The two-year sentence means James will serve his sentence in a federal prison. He is eligible for day parole in September, when he will have served six months. He’s eligible for full parole when he serves one-third of his sentence, meaning he could be released in November.

Granted I’m not a lawyer, but unless the Crown can prove the judge made an error of law, I’d presume a successful appeal is unlikely. (Again, not a lawyer.)

Via the Manitoba Court of Appeal:

In an appeal, the person who lost in the lower court argues that the judge made a mistake. For example, the judge in the lower court may have used the wrong law. It is important to identify what mistake you think the judge made. An appeal court cannot change the decision just because they disagree with it. The lower court is entitled to hear the evidence and come to its own decision. The appeal court may only change that decision if the lower court made a mistake as to the law or significantly misunderstood the evidence.

So far I haven’t heard anyone argue the judge made a legal error – only sweeping statements that James should’ve been handed a stiffer sentence.

As Postmedia’s Christie Blatchford points out, Carlson was limited by “all the decisions by other judges that came before hers.”

Blatchford adds the key point: “Common sense is not so constrained or constipated, and it is that which sometimes separates the law from public opinion.”

  1. uscthom78 - Mar 21, 2012 at 3:40 PM

    Why did the crown only ask for 6 years? Even that is low.

  2. sabatimus - Mar 21, 2012 at 4:05 PM

    Does the death penalty exist in Canada? This might be a strong argument for one.

  3. kitshky - Mar 21, 2012 at 4:13 PM

    Blatchford adds the key point: “Common sense is not so constrained or constipated, and it is that which sometimes separates the law from public opinion.”

    That is the point isnt it? We can all agree the sentence is too low, and we can probably all agree that of course James didn’t only abuse the three men that we are aware of … but without people speaking up (and not making plea bargains for a guilty plea) and without the public doing all they/we can to encourage victims to speak out against these hideous cancers of society the courts will continue to be limited by the facts that are actually put into evidence.f

    Having said that, its abhorent that the Judge reduced the sentence because “he willing came back from Mexico” and has “already suffered gross humiliation”. I cant think of any more “gross humiliation” than an impressionable teenage boy who has his identity, sexual innocence, and control over his own body taken away by the one person who has the emotional control to do so.

  4. bcisleman - Mar 21, 2012 at 4:52 PM

    I don’t buy the notion that James has changed. Pedophilia is not something you decide to do on a whim. Odds are he will offend again. I don’t know if there are sentencing guidelines for this sort of thing, but 2 years seems too low–especially given that he is allowed parole.

    In the US, the standard for appeal is either judicial error or new evidence–although the latter is mostly to change a verdict. I assume its the same in Canada. In this case, the verdict was guilty, so its hard to imagine how new evidence would change things.

    As to the question above, there is no death penalty in Canada and I know of no jurisdiction that has imposed the death penalty for pedophila in any event.

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