Law Times

Page 6 November 17, 2014 • Law Times www.lawtimesnews.com COMMENT Nordheimer's delicate dance f there's a case that demonstrates the complexities of mandatory min- imum sentences, R. v. Donnelly is surely a good example. On Nov. 6, Superior Court Justice Ian Nordheimer issued his sentence for Brandon Donnelly after he pleaded guilty to mak- ing child pornography for the purposes of publication. The offence comes with a mandatory minimum of one year in jail. Donnelly had worked as an editor of films on behalf of his employer, Brian Way. Among the mitigating factors was the fact that the images were at the low end of what constitutes child pornography as they depicted na- ked underage boys engaged in a variety of activities such as swimming and wrestling. There was no sexual activity, and, according to Nordheimer, Donnelly believed Way's assurances that the films were legal. That was probably naive of Donnelly but that's exactly what Nor- dheimer found the defendant, who had newly graduated from a film program, to be. But the mandatory minimum left Nordheimer with a dilemma given his finding that "a penitentiary term of imprison- ment is not only unwarranted, it could also not be justified on a proper application of the principles of sentencing. Such a sentence would not be proportionate to Mr. Donnelly's role in this matter." The finding is somewhat surprising in light of his next comment that "the appropriate sentence would be from a mid-reformatory term to a maximum reformatory term." But it's clear this was a difficult case for Nordheimer to reconcile. In the end, he determined 21 months was the appropriate sentence but, based on breaches of Donnelly's constitutional Liberals embracing dogma as they get back to passing bills ot so long ago, it seemed MPPs got nothing done at Queen's Park. With a minority government and scandals left and right, the opposition stalled legislation while the Liberals ran around putting out fires. A majority government changes every- thing. Since their return last month, the Liberals have been wielding the big legis- lative and regulatory stick with rampant glee and much of it driven by dogma. We're getting higher fines for texting or using a mobile device while driv- ing. The government is also banning smoking on restaurant and bar patios, sports fields, and university and college campuses. Legislation to ban coal-fired power plants is back on deck as is bill 35, a law that sets new rules for searching those who attempt to enter courthouses and electrical generating facilities. We're also going to be getting an up- dated sex education protocol in Ontario schools and, dogma aside, online gam- bling to swell the coffers by $350 million over five years. The problem is the last time the Liberals were in this kind of mood, it was under former premier Dalton Mc- Guinty and a decade later their dogmat- ic agenda is costing us big money. All-day kindergarten ap- peased the teachers' unions but it's unaffordable. Or take the Green Energy Act whose true costs and shortcomings are now coming to light. "Wind and solar provides less than four per cent of On- tario's power but accounts for 20 per cent of the cost paid by Ontarians," a Fraser Institute report recently noted. It has also cost us $1 billion more because some days Ontar- io has to sell off excess power at low rates. On other days, Ontario imports power at a premium when there's not enough of it. Most of this is down to dogma. Coal is dirty and must go regardless of science that shows it's more efficient to invest in clean-burning coal plants than rely on wind and solar at 10 times the cost. In Europe, for example, where land is scarce and energy is even more expensive than in Ontario, they burn waste to cre- ate energy. But we don't do that in Ontar- io. The waste reduction act died with the spring election call, but the government will probably resurrect it soon. It sets up a new body with prosecutorial teeth to replace the inept Waste Diversion On- tario that screwed up the ecological levy a couple of years ago. The Act would give the new authority power to set ecologi- cal fees and force manufac- turers and retailers not just to pay for disposal of a product at the end of its life cycle but also cover the bureaucracy itself. It also specifically bans the burning of any waste cur- rently diverted under existing programs such as hazardous materials or used tires. The whole issue of energy from waste and incineration will prob- ably f lare up again when a new waste in- cinerator in Durham Region fires up for the first time to burn 140,000 tonnes a year of garbage to create enough electric- ity to power thousands of homes a year. Garbage to energy seems like a win- win. We need to find energy sources to fuel electricity generation authori- ties can ramp up or down regardless of whether the wind is blowing or the sun is shining and we need to get rid of unre- cyclable garbage. Out in Bath, Ont., there's a $9-mil- lion pilot project to burn construction waste and railway ties at the Lafarge- Holcim plant. It's important because en- ergy is the biggest input cost in making cement and right now they burn coal and petroleum coke. The choice will be to refit plants with costly capture technology or shut them down and lose the jobs associated with them. But the last time cement plants looked at alternative fuels such as used tires, they came under major criticism. This time the industry is moving cau- tiously and slowly as it builds the science with Queen's University. The sensitivity is understandable given the hysteria in- cineration provokes. What we need, as Pollution Probe chief executive officer Bob Oliver points out, is to keep our options open and avoid the dogma. Incineration "is something I think we need to have an open adult conversation about," says Oliver. "And we need to do that before other NGOs and NIMBY get out in front and frame the conversation." It's sage advice that should apply to all discussions around incineration and waste because science should trump dogma every time. LT uIan Harvey has been a journalist for more than 35 years writing about a di- verse range of issues including legal and political affairs. His e-mail address is ianharvey@rogers.com. ©2014 Thomson Reuters Canada Ltd. All rights reserved. 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One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 • Tel: 416-298-5141 • Fax: 416-649-7870 www.lawtimesnews.com • LT.Editor@thomsonreuters.com • @lawtimes • LT.Editor@thomsonreuters.com • @lawtimes u Editorial obitEr By Glenn Kauth rights due to the denial of a bail hearing for improper reasons and the serious mistreatment he suffered while in custody, he found it was an exceptional case where he could grant an exemption from incarceration. Nor- dheimer also took into account Donnelly's high risk of suicide if he were to go to jail, a situation medical re- ports found was a result of his experiences in custody. While it appears Nordheimer was looking for a way to grant relief to Donnelly, that's as it should be. The decision reinforces the importance of con- sidering mental health in the corrections system, something several cases have shown our institu- tions often haven't done a great job of addressing. It also ref lects the need to allow for at least a modi- cum of judicial discretion to prevent unjust results. While mandatory minimums seeks to preclude that option, that's not justice. — Glenn Kauth Queen's Park Ian Harvey N I

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