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Lawyers support judge decrying mandatory minimum sentences

May 16 2012

Local lawyers are applauding a Victoria provincial court judge who spoke out against mandatory minimum sentences earlier this week.

On Monday, Judge Robert Higinbotham sentenced former tow-truck operator Edward Grindlay to 45 days in jail for possessing about 25 images of child pornography on his home computer three years ago. Grindlay was searching for adult pornography when he inadvertently downloaded child pornography. Instead of deleting the images, he viewed and saved them.

"In the circumstance of mandatory minimum sentences, I have no choice but to sentence Mr. Grindlay to jail. If I had a choice, I would not," Higinbotham said. "I think this is one of those cases where taking discretion out of the hands of judges results in an unfit sentence."

Victoria lawyer Catherine Tyhurst said Tuesday she was pleased with the judicial outrage.

"I applaud Higinbotham. I think registering displeasure and the loss of discretion is a very judicial thing to do," Tyhurst said. "I think we're going to find more and more judicial discretion is eroded with Bill C-10, the omnibus crime bill."

Lawyer Michael Mulligan said it is a sad state of affairs when an experienced judge is required to impose a sentence he knows is unfair.

"That judge knows what he's talking about. If he's saying that sentence is unfair on the facts of this case, I'm inclined to believe that it is," Mulligan said.

"What a shame the justice system has come to this."

Although Grindlay's lawyer, Don McKay, believes Higinbotham's comments may set the grounds to appeal mandatory minimum sentences, constitutional challenges so far have not been successful, Tyhurst said. They are also very expensive.

"The fiction in what is being peddled is that mandatory minimums create general deterrence," Tyhurst said. "But vast number of studies done from the American experience show it doesn't decrease crime."

In March, when the government passed Bill C-10, the mandatory minimum sentence for people convicted of possession of child pornography increased from 45 days to six months.

"The thing that gets me, those images that all these people have been convicted on and doing time on are still out there," Tyhurst said. "That's what irritates me the most. Where is the effort from our solicitor general and attorney general, both federally and provincially, to actually shut the servers down? If there was a penalty for servers and a greater objective for them to screen what is carried on their websites, people would have less access to these images."

Mandatory minimums produce unnecessary trials and are a drain on court resources, Mulligan said. If a judge has no discretion in sentencing, there's no benefit to pleading guilty, he explained.

"We trust judges to make determinations about whether a person is guilty or innocent, whether to accept the evidence of a witness. We should trust them to impose fair sentences," Mulligan said.

ldickson@timescolonist.com

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