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Courts - cananda - Creating criminals
http://www.theglobeandmail.com/servlet/ArticleNews/TPStory/LAC/20040729/BLATCH29/TPComment/Columnists
ORANGEVILLE, ONT. -- The Ontario government
is using an "anticipatory" section of the Criminal
Code
designed for high-risk offenders against a 43-year-old man
involved in a continuing and bitter custody
battle. The section is 810, considered
by civil libertarians to be one of the state's harshest tools
because if
imposed by a judge, there are only
two possible results: the person before the court must agree
to strict conditions being put on his liberty or, if he refuses,
go to jail for as long as a year.
Because breaches of an order made under 810 are considered
criminal offences, and punishable by a
maximum of two years in prison, defence lawyers often argue
that the section actually "creates" criminals.
The section is meant to protect society from people who have
not yet committed any crimes -- or in the
case of those coming out of jail, any recent crimes -- but
are deemed likely to commit sexual or personal-
injury offences in the future.
Use of the 810 usually hits the headlines where repeat violent
criminals, such as the notorious diagnosed psychopath Martin
Ferrier who was recently in the news, complete their prison
sentences and are about
to be released, unsupervised, into a community.
But in the case of this man -- The Globe and Mail is not using
his name out of consideration for his children
-- his criminal record is neither particularly long nor violent.
It is the third time since October, 2001, that Ontario has
used an 810 order against him.
A cabinet maker by trade, the man has an admitted alcohol
problem and a quick temper both, but until his marriage began
to crumble in 1999, he had never spent a day in jail and had
only three minor convictions.
Even now, despite having spent about 300 days behind bars
in the past five years -- mostly for breaking conditions of
the earlier 810 orders -- the man's contemporary record consists
of four assaults (one is
under appeal), nine breaches of various court orders, and
one conviction each for obstructing police and
making harassing phone calls.
Only three convictions directly relate to his ex-wife -- one
minor assault, the harassing calls offence and
one breach of an earlier 810 incurred when he rang her doorbell
one Father's Day desperate to see his
children.
It is his former wife who claims to fear for her safety, and
an officer with the Caledon branch of the Ontario Provincial
Police who has sworn an affidavit under Section 810.2 saying
she believes the man "will commit a serious personal
injury" offence against the woman.
Among the grounds Detective-Constable Vanessa Leslie cites
are vague allegations from the ex-wife such
as damage done to her property, hang-up phone calls and calls
for one of the children from an unknown
woman
-- none of these allegations, Det.-Constable Leslie says,
were proven or linked to the man -- and a psychological assessment
that found he was not a psychopath, but had problems with
alcohol and low
impulse control.
Most tests showed he presented a low-to-moderate risk to reoffend,
except for what's called the Spousal Assault Risk Assessment
Guide, which rated him as a moderate-to-high risk.
Curiously, and illustrative of the Catch-22 in which the man
finds himself, both the psychologist and the
man's former probation officers were alarmed by his anger
toward his ex-wife and his frustration with the
legal
system.
This week in a Dufferin County courthouse, the ex-wife testified
before Ontario Court Judge Katherine
McLeod, who is presiding over the new 810 application.
Under questioning by the man's lawyer, John Christie, the
woman admitted to having called the police about
the man for the most minute of offences.
Once, at a Tim Hortons, when a friend of his said hello to
the friend she was with, the woman reported it to
the police. "I was upset," she snapped in court,
"that he was talking to my friend."
Another time, she reported him to the OPP when he left a message
wishing the children a happy
Thanksgiving, and once, when the man had to work through a
scheduled call from their children and phoned later to ask
if they could call him again, she phoned police.
"He telephoned my home," she told Judge McLeod.
"That's a breach of his conditions."
Similarly, when a neighbour spotted a car driven by someone
"what could have been" her ex, the woman
called police.
Indeed, she even complained to police that she was still getting
his bills. Asked by Mr. Christie why she'd
done so, she said sharply, "I was still receiving mail
for him."
For all that the woman claims to be fearful of her ex, what
was most evident from her testimony is that she remains rancorous
toward him.
The man's access to his children is governed by a family court
order. In addition to the weekly phone calls,
he is allowed to see them alternate weekends, but says he
hasn't actually been able to do so in several
years.
As Mr. Christie played a five-year-old family video -- used
to demonstrate that the children were not afraid
of their father when the couple separated -- the man sat in
court, weeping.
Though Section 810 applications are sufficiently unusual that
even the process to begin them must be
approved by the provincial Attorney-General, Ontario doesn't
know how often they are okayed.
Brendan Crawley, a spokesman for the Attorney-General's office,
said yesterday that "it's possible such statistics could
be generated, but they're not at hand." Mr. Crawley agreed
that the section is "a powerful
tool" but said that though only a small number of cases
garner publicity, the section is "applied quite
broadly."
Toronto's senior Crown attorney, however, said that in city
courts, Crowns use 810s only with serious
violent offenders, or repeat pedophiles, who are emerging
from jail and would be otherwise unsupervised.
Julian Falconer, a Toronto criminal lawyer who unsuccessfully
fought a battle to have the section declared unconstitutional
on behalf of a notorious pedophile named Wray Budreo, said
yesterday that the fact the government doesn't know how often
the section is used means that "in addition to a vague,
awkward tool,
we have very little accountability."
Implicit in the Supreme Court decision upholding the section,
Mr. Falconer said, is the notion "that we have
to trust the state and that it represents an innocuous intrusion"
on a person's liberty.
"But it's so susceptible to abuse," he said, "because
the basis for getting it is so completely thin, but the ramifications
are so intrusive."
Mr. Falconer said 810 "creates the offence. Don't forget
-- if there was an offence, the state wouldn't be resorting
to the section."
Because the section is so frequently used when people get
out of jail, the process is sometimes colloquially called
being "gated."
Indeed, the cabinet maker is known in prison as "Gates."
The hearing is slated to resume Oct. 19.
cblatchford@globeandmail.ca
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