More Impaired Judgments

Last year Iwroteabout a drunk driving related case that really made me angry. I won’t go into all of the details, you can click above if you want to refresh your memory.

If you recall, in that post I questioned the competency of the judge who made the ruling, Justice Colin Westman. Well, it looks like I need to do so again. Have a look atthis storyfrom the March 11th Guelph Mercury.

Justice Colin Westman cut off a prosecutor at a sentencing yesterday for talking too much about the harm a drunk driver caused.

Prosecutor Sydney McLean was reading the victim-impact statement of a woman injured by a drunk driver in November 2007. She said victim Ksenia Osmolovskaya suffered a fractured skull, was forced to use a wheelchair for a while and had to learn how to take a shower and grocery shop all over again.

McLean was reading the statement at the sentencing hearing of Adam Young, a 29-year-old Kitchener man who pleaded guilty last year to two counts of impaired driving causing bodily harm. Young had almost twice the legally allowable level of alcohol in his blood when he rear-ended a car on Highway 7-8 near Fischer Hallman Road on Nov. 10, 2007.

Osmolovskaya and her fiancé, Stratos Georgiou, were badly hurt. He needed surgery for a broken elbow.

Westman broke in just as McLean was saying that Osmolovskaya can no longer dance.

He asked why the Crown had to focus on the negative consequences of Young’s actions.

“Your approach is to describe the damage,” he said. “I could have sent him to prison for three years if I just read (the victim impact statements).

“If I get caught up with vengeance, you can give him a life sentence. That’s not the way we operate.”

Westman is considering a defence request for a conditional sentence for Young. The law at the time would have allowed it.

Since then, the legislation was changed to prohibit a conditional sentence in cases of drunk driving involving serious bodily injury.

Westman said the sentencing principles of denunciation and general deterrence can be satisfied by a long conditional sentence.

People convicted of impaired driving usually get a fine or a short jail term, he said. Why should the sentence be so much harsher when someone is injured, he asked.

“The only facts you have here are the serious injuries,” he told McLean. “I worry I’m not doing my job if I just react to emotion.”

He said Young’s moral culpability was no worse than any other impaired driver who gets in a car after drinking. There was no evidence of recklessness or speed, he said.

McLean disagreed and asked for a jail term of 12 months.

Young will be sentenced at a later date.

A few points here:

1. Who cuts off a victim impact statement? I’ll grant that I haven’t attended many court proceedings, but I do read a lot of news and I can’t remember ever hearing about a judge doing that. Is this a common thing? To me it comes off as disrespectful to the victims.

2. “He asked why the Crown had to focus on the negative consequences of Young’s actions.

“Your approach is to describe the damage,” he said.”

That would be because it’s a victim *impact* statement. Seems like pretty basic stuff. If I’m asked how getting crushed in a serious car accident has impacted me, odds are I’m not going to write a sonnet about hearts and flowers.

3. “People convicted of impaired driving usually get a fine or a short jail term, he said. Why should the sentence be so much harsher when someone is injured, he asked.”

That would be because somebody was *injured*, thus making the results of his actions worse than they would have been had he simply got busted heading home from the pub. Again, pretty basic stuff, especially given that courts have been dishing out harsher sentences in injury cases of all kinds for years.

4. “The only facts you have here are the serious injuries,” he told McLean. “I worry I’m not doing my job if I just react to emotion.””

What?

Seriously, what?

Serious injuries…is that the best you got?

That’s essentially what he’s saying here. That can’t be what he was aiming for…then again, it probably can given who we’re dealing with.

5. “He said Young’s moral culpability was no worse than any other impaired driver who gets in a car after drinking. There was no evidence of recklessness or speed, he said.”

No evidence of recklessness…other than that whole driving drunk and getting into an accident that could have killed 2 people thing, but that’s no biggie.

7. I missed this when it happened, but it seems that Mr. Westman has even more of a history with this type of thing than I thought. Here’s acolumnfrom the Mercury for last August 22nd detailing a case in which his “honour” (that’s in quotes for a reason) blatantly disregards the criminal code in order to hand down a non-custodial sentence to a man who yelled at, punched and shoved a police officer. The reason? The defendant was too drunk to know what he was doing.

After reading all of this, I can’t help but wonder if Justice Westman might have some alcohol issues of his own. Why else would he take such a soft stance on the actions of dangerous drunks and be willing to make so many ridiculous on the record statements in their defence? I’m not trying to level any accusations or make a statement of facts, but something just doesn’t smell right about this guy.

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