Law Times

Law TiMes • March 26, 2012 NEWS Judges feel stifled under POA Continued from page 1 During that time, Perruzza also booked travel and accepted pay- ments from the Kids' Internet Safe- ty Alliance for fl ights between Jo- hannesburg and Toronto without being registered as a travel agent and failed to reimburse the group nearly $16,000 when fi ve of its nine travellers cancelled their trip. Perruzza also pocketed nearly $60,000 on a separate occasion when acting as a travel agent for International FC. Aſt er several passengers found themselves stranded during a trip to Italy, Hospitality Tours was on the hook for more than $100,000 in booking errors. In addition, Perruzza made fi ve unauthorized transactions on three separate clients' credit cards retained for travel and failed to pay them back for the charges. Perruzza pleaded guilty to each of the six counts against her in April 2011. According to a victim-impact statement fi led in the case, be- cause Perruzza had overbilled the alliance by $16,000, some of the small Canadian charity's law en- forcement offi cers who were plan- ning to attend a training session on preventing child abuse over the Internet weren't able to do so. Th e president of Hospitality Tours, Rade Sekulic, also wrote in a victim-impact statement that he had lost his trust in human- ity and had to take on a second mortgage because of Perruzza's actions. "I was pushed to the brink of bankruptcy and it almost de- stroyed my marriage," Sekulic wrote. "It caused me, my wife, and my sons undescribable (sic) grief and emotional pain. And still does to this day. I was forced to cut salaries and put my staff on commission." While the provincial govern- ment has yet to respond to the law commission's report on the Pro- vincial Off ences Act, observers say several recent cases suggest judges are looking for greater judicial dis- cretion under the legislation. "Th e report may simply be re- inforcing judges' existing capacity to be more fl exible," says Patricia Hughes, executive director of the law commission. "Th e Provincial Off ences Act hasn't been signifi - cantly reviewed in 30 years, and I think judges would like the op- portunity to have greater fl exibil- ity in these matters." Hughes notes the law commis- sion was aware of judges who felt stifl ed under the current legisla- tion and pursued the report with that thought in mind. "We were certainly aware that some judges were seeking greater fl exibility under the legislation and wanted to explore the mod- ernization of the act," says Hughes. "Th ere has also been a certain amount of recognition among the criminal bar and the realization among both that judicial discre- tion plays an important role in cases where diff erent individu- als respond to things in diff erent ways. It's not one size fi ts all." Toronto defence lawyer Untitled-2 1 Matthew Friedberg says that while he can't comment on the specifi c case, the issue of fairness allows judges to evaluate extenu- ating personal circumstances in reaching decisions. "Without judicial discretion, what's the point? Everyone would just have the same sentence. Judg- es should have the ability to judge and make their sentences on the merits of each individual case, and that's important." Perruzza isn't the only case where judicial discretion has come into play recently. In R. v. Smickle, Ontario Supe- rior Court Justice Anne Molloy chose not to impose a manda- tory minimum sentence for a gun crime. Th e case involved a man found holding a loaded handgun and web camera aſt er police burst into his cousin's apartment in 2009. Molloy said sending Leroy Smickle to jail for three years for the crime was unconstitutional. "A reasonable person knowing the circumstances of this case, and the principles underlying both the Charter and the general sentenc- ing provisions of the Criminal Code, would consider a three- year sentence to be fundamentally unfair, outrageous, abhorrent, and intolerable," Molloy wrote in Smickle. Th at's why judicial discretion is particularly important to judges and lawyers, says Friedberg. "Smickle was very positive for our law. Ultimately, it's the judge who should decide these matters." Joseph Neuberger, a partner at Neuberger Rose LLP, says that Smickle, if upheld, could also sig- nal greater discomfort among the judiciary in relation to mandatory minimum sentences and their discretion under the omnibus crime bill that received Royal as- sent earlier this month. "If that decision is upheld, we will have to see how the higher courts will deal with its opposi- tion to the legislature. On the other hand, if Smickle is over- turned on appeal, we may be waiting for a number of years for this to surface again." LT What's Inside 2X.indd 1 www.ERASSURE.com is a registered trademark ERASSURE® of Estate Risk Protection Plan Inc. 3/22/12 1:48 PM It's what's inside that counts! 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