Minimum Punishments for Immoral Fraudsters

I am not a supporter of minimum sentences. Though they certainly send a public message that government is “tough on crime”, they effectively abrogate the ability of prosecutors and judges to assess a particular offence in the circumstances and mete out punishment that is appropriate to the crime. I have always been of the view that over punishing people for moral bad luck is improper. I look at cases, such as R. v. Morrissey – an accidental shooting – and I see a situation where the minimum punishment has absolutely no correlation to the moral blameworthiness of the offender.

In Morrissey the offender was drinking alcohol with his best friend and shooting a long rifle at a cabin where the two were staying. Later in the evening, after his friend went to bed, Mr. Morrissey entered the cabin, carrying the rifle and jumped on the bottom bunk of a bunk-bed. In doing so, he accidentally discharged the rifle. His best friend was killed. Despite having no past criminal record and absolutely no intention to injure or kill his friend, Mr. Morrissey was found guilty of criminal negligence causing death with a firearm and was sentenced to the statutory minimum of four years incarceration in a Federal Penitentiary. Suffice it to say, the trial judge did now want to send him to jail for that long in the circumstances of the case.

In the circumstances, it is in my view, difficult to argue with the learned trial judge’s position. Mr. Morrissey’s acts were certainly criminally negligence; they were certainly thoughtless and fraught with all of the trappings of being a human being – a creature capable of making mistakes – but they were hardly intentional or morally reprehensible. Even if Mr. Morrissey lives to a ripe old age, he will have spent a considerable percentage of his life imprisoned in a school for miscreants.

This is why I am always troubled when I see Parliament lobbying for votes in the arena of criminal justice. In my mind, “tough on crime” type rhetoric is just about the easiest platform to attract public confidence, but the rhetoric may not always be based on sound principle. It is easy to legislate minimum penalties, but when otherwise good people, such as Mr. Morrissey are the subject of minimum sanctions, the system is arguably guilty of over punishing. Though the pain and suffering from injury and death at the hands of our fellow human will always exist in a society where human beings live together, we have to remember that not all of it is caused by the immoral scoundrel.

Having said all of this, it is difficult to imagine that immoral fraudsters, such as those perpetrating the much publicized Ponzi schemes are anything other than long term, intentional actors; whose conduct was anything but a split-second accident or momentary lapse of bad judgment. It is also worth noting that many fraudsters are white collar individuals, without criminal records. Some of these fraudsters come from middle to upper class families; have attended ivy-league schools and had good jobs. Most importantly, some of these fraudsters were fortunate enough to have enough social advantages such that they really have no real excuse to pillage the savings of honest hard working folks. It is for all of these reasons that Parliament may actually be on the right track legislating minimum punishments in certain white collar crimes.

http://www.calgarysun.com/news/canada/2009/09/16/10929691-sun.html

With this in mind, however, I am sincerely hopeful that government will enact laws that are aimed at the true immoral fraudster. I fear in an over zealous attempt to attract voters on the eve of an election, the government will craft legislation that will not only capture those involved in serious fraud (such as Ponzi schemes) but may capture a host of other people who are either negligent or perhaps even obtusely reckless in conducting their affairs.

To that end, I am mindful that economic life is becoming ever more complicated. The Tax Act is nothing short of daunting magnum-opus of rules which no ordinary citizen can hope to comprehend. In my view, the sheer number of pages and rules in the law make the law virtually incomprehensible. Even those trained to interpret the law – lawyers and judges – are often at odds and are apt to make errors in their analysis. With our law growing to such magnitude, the risk is that it can be used as a sword by those interested in striking down their enemies; rather than a shield to be used only to protect citizens of this country. Minimum punishments that capture citizens of paper cases in the wrong circumstances can have a devastating effect upon those afflicted.

My point is, though we might agree that minimum punishments for immoral fraudsters are long overdue, as citizens we should actively participate in the dialogue pertaining to the drafting of this legislation. I say we should do this so as not to create a class of citizen who will serve minimum sanctions for engaging Morrissey-esque type behavior. With the vast number of laws creating paper offences -- ranging from the Criminal Code, to the Tax Act, to the Bankruptcy Act and more – I fear that minimum punishments in some cases may not fit the moral blameworthiness of the crime.

By way of final comment, I wonder when citizens will stand up to government by asking them to be accountable in the same way as ordinary citizens. I wonder when citizens will pursue government for fraudulently mismanaging tax payer dollars? Can you say minimum punishment?

David G. Chow
Calgary Criminal Lawyer

www.calgarydefence.com