Amici Curiae: Graham James Sentence, Coerced Adoptions, and the OCA’s Upcoming Decision on Prostitution Laws

Graham James Sentence Inspires Timely Debate on Sentencing

The highly publicized sentencing of Graham James, a former junior hockey coach convicted of sexually assaulting two players that he coached as teenagers, including former NHLer Theo Fleury, has drawn strong reactions from commentators and victims and inspired timely debate regarding sentencing practices in Canada. James was sentenced to two years in prison for the assaults.

Manitoba Provincial Court Judge Catherine Carlson read aloud her sentencing decision indicating that she had considered James’s previous time served for a similar conviction (he had previously served 20 months of a 3-year sentence for a 1997 conviction for assaulting two other players around the same time) and the fact that he had not re-offended since 1994. She also took into account that he had received treatment and that he had surrendered to police, pleaded guilty and apologized in court for the latest offences. The Judge recognized that the sentence was one “that the victims, and indeed many members of the public, will find satisfactory” but held that given the confluence of factors the sentence was appropriate. The Crown had asked for a six year sentence, while the maximum sentence is ten years.

The victims, Fleury and his cousin Todd Holt issued a statement in which they referred to the two-year sentence as “nothing short of a national travesty.” Along with James’s other victims, the victims balked at the judge’s reasoning for the lenient sentence, particularly the prospect that James had been rehabilitated and no longer represented a danger to young boys.

The decision has been subject to outrage in the media and, while it may be subject to Crown appeal, has brought the sentencing practices of the Canadian judicial system into focus. Commenting on the sentence, Rosalind Prober, co-founder of Beyond Borders, a Winnipeg-based charitable organization that advocates for sexually abused children said “The problem, of course, is that the bar is set so low in the courts on sentencing of sex offences.” This comment on sentencing is very timely given the recent passing of the Safe Streets and Communities Act which has been subject to much controversy, partially due to its imposition of minimum sentences for many offences. One of the focuses of the sentencing provisions in the act is the imposition of minimum sentences for sexual offences against children.

While the Safe Streets and Communities Act has been widely criticized, some commentators argue that sentences such as this fuel the argument that the Conservative government’s tough-on-crime agenda is necessary in light of a judiciary that “won’t stand up to serious crime” (ironically, however, James’ sentence is in line with the new sentencing provisions of the Act which imposes a one year minimum for the offence). In their statement, Holt and Fleury called upon Canadians to “demand that our government change the laws and empower justice to be all that it could be, and to do all that it should,” an endorsement of the stronger sentencing practices likely to come in the wake of the Safe Streets and Communities Act, and a sentiment that is likely to spread given the publicity of this failure of justice.

Women Coerced Into Adoptions Launch BC Class Action

A disturbing story has emerged in recent weeks about unmarried mothers who were forced to give up their babies for adoption from the 1940s through to the early 1990s. One study estimates that “350,000 unmarried Canadian mothers were persuaded, coerced or forced into adoption” by church-run maternity homes.

The British Columbia government was the first provincial government to be served with documents for a class-action lawsuit related to the matter. The claim filed at the BC Supreme Court last week “seeks general and special damages for the lost opportunity to parent, medical treatment without consent, and mental distress.” Tony Merchant, the prominent Saskatchewan lawyer who filed the action, also plans to file documents in Ontario and Quebec. The goal of the proceedings is to hold governments responsible for the actions of the church-run organizations, which were provincially funded at the time.

Following an investigation launched by the National Post, a number of women have come forward in BC claiming that they were either “coerced or forced by social workers, medical staff, and churches into giving their child up for adoption because they were unmarried.” One woman claims she was drugged and tied to a bed during labour, while another’s request to hold her newborn baby was refused. The majority of the women interviewed suggest that the coercion was the result of a much larger “societal push for unmarried mothers to consent to adoption.”

According to the Supreme Court of Canada’s decision in Western Canadian Shopping Centres Inc. v Dutton, 2001 SCC 46, class actions offer three important advantages over a multiplicity of suits. They improve judicial economy by avoiding unnecessary duplication in fact finding and legal analysis, improve access to justice by dividing fixed litigation costs over a large number of plaintiffs, and contribute to the goal of justice by ensuring that the actual wrongdoers do not ignore their obligations to the public.

The claim filed at the BC Supreme Court last week seeks to provide compensation to the class of unmarried women who were coerced into adoptions for “the lost opportunity to parent, medical treatment without consent, and mental distress.” While this action is an opportunity for these women to receive compensation for grief they have suffered, more importantly, it provides an opportunity for a class of individuals who individually may not have had the means to access the justice system.

While the allegations against the BC government have yet to be proven, it is also important to note that in determining whether an issue is appropriate for a class proceeding, the court is not required to consider the merits of the case. This position was addressed in Hunt v Carey Canada Inc., [1990] 2 SCR 959, where the SCC held that the test for determining whether the pleadings disclose a reasonable cause of action must consider whether it is “plain and obvious” that the plaintiff’s claim discloses no reasonable cause of action. If there is a chance that the plaintiff might succeed, then neither the length and complexity of the issues, nor the novelty of the cause of action should prevent the plaintiff from proceeding with the case.

The facts of this case demonstrate a novel cause of action. However, as the Hunt decision suggests, novelty alone should not prevent these women from proceeding with what is an important case. Allowing this case to proceed might also encourage more women who have kept silent about their own experiences to come forward in the hopes that justice can be served.

Ontario Court of Appeal to Rule on Prostitution Laws

The Ontario Court of Appeal is set to release its judgment in the appeal of a landmark Ontario case which struck down as unconstitutional several provisions of the Criminal Code related to prostitution. The case, Bedford v Canada, 2010 ONSC 4264, ruled at trial that three criminal code provisions (living on the avails of prostitution, keeping a common bawdy-house and communicating in a public place for the purpose of engaging in prostitution) violated section 7 of the Canadian Charter of Rights and Freedoms and could not be justified under section 1.

The applicants in the case, Terri Jean Bedford, Amy Lebovitch, and Valerie Scott, claimed that the impugned provisions “prevent prostitutes from conducting their lawful business in a safe environment” and “violate liberty, due to the possibility of imprisonment upon conviction for each of the offences, but also security of the person as the operation and intersection of the impugned provisions materially contribute to the violence faced by prostitutes.” The respondent, Attorney General of Canada, submitted that “prostitution entails a high level of risk for individuals who engage in it and significant harms to society at large.” A great deal of evidence (over 25,000 pages in 88 volumes) was presented both for and against the application, addressing the longstanding debate as to whether prostitution laws, intended to protect the public from what many see an inherently immoral activity, do more harm than good by thrusting the activity into secrecy and thus creating an industry conducive to violence. Social science evidence, from both Canada and abroad, was presented, and the court underwent a lengthy section 7 analysis. In the end, Justice Himel was convinced by the arguments of the appellants, stating that “that the danger faced by prostitutes greatly outweighs any harm which may be faced by the public” and ruling that the provisions were unconstitutional and thus of no force of effect.

This decision obviously has sweeping consequences for both Ontario and the nation as a whole. While the Court of Appeal agreed to the Crown’s request for a temporary stay and thus the offences are of effect for the time being, if the Court of Appeal upholds the judgement, it will could potentially lead to a proliferation of bawdy houses and open communication between prostitutes and clients in Ontario and “set the stage for similar challenges in other provinces and an ultimate showdown at the Supreme Court of Canada.”

Many in the government, including Prime Minister Stephen Harper, are adamant that these prostitution laws remain on the books and it is hard to imagine the Court of Appeal upholding the judgment on this basis. However, there are no easy answers as the interests to be balanced in the case are each worthy of consideration. Any law that encourages violence is obviously undesirable, and there is plenty of evidence to suggest that the impugned provisions may make prostitution more dangerous by encouraging street prostitution rather than moving it indoors into brothels and disallowing prostitutes from hiring paid bodyguards. However, there remains the reasonable contention that it is the sex industry itself and not the laws restricting it that does the real damage and that making the industry more accessible will simply ensnare more vulnerable women in its vicious cycle. Some have suggested that it is the clients of prostitutes rather than the prostitutes themselves that deserve punishment.

The Court of Appeal is in the position of weighing these interests, and was presented with a volume of evidence similar to that presented at trial. The court of public opinion is divided, as an Angus-Reid poll found that 49% of Canadians approved of the trial decision. The province and the country eagerly await the Court of Appeal’s decision on this landmark case.