Had the law been applied as the Conservatives’ get-tough-on-crime agenda demands, an 86-year-old Sidney war hero would have gone to prison for three years on Thursday.
In the end, sanity prevailed. Lynn Henshaw got an absolute discharge, forfeited his Colt revolver and was banned from owning a gun for 10 years.
It took a bit of dancing to avoid the mandatory minimum sentence, though, which raises the question: Why should the court system have to twist itself into a pretzel for common sense to trump an inflexible, politically driven law?
This goes back to March, when home-care workers found a loaded handgun in Henshaw’s apartment. When he balked at giving it up, they called the cops.
Henshaw had bought the revolver legally in Hawaii in 1969, but hadn’t registered it here — and the law now says an unregistered, prohibited, loaded firearm is supposed to bring a mandatory minimum sentence of three years.
The Conservatives brought in the mandatory minimums in 2008 in response to high-profile, deadly shootings in Toronto. It was the politicians’ way of saying they didn’t trust woolly headed judges to do their jobs and send bad guys to jail — but the unintended consequence is that it robbed judges of their discretion in sentencing people like Henshaw.
The Sidney man shuffled into court using a walker. He wore orange shorts, a hospital bracelet on his wrist and a bar of seven gleaming Second World War medals pinned to the chest of his blue Hawaiian shirt.
He was just 16 years and one month old when he and the rest of the South Saskatchewan Regiment stormed the beach at Dieppe in 1942. Most of the 6,000 infantrymen who made it ashore were killed, captured or wounded. Henshaw expected to be among them. “I was ready for a bullet to hit me.”
When, a year later, the Canadian Army weeded out underage soldiers, Henshaw’s immediate response was to join the merchant marine. That’s when he got the tattoos on his forearms.
It irks him that his reward for all this was to be hauled into court. “The things we did for the people who are running this country now …” He wore his medals to set himself apart from the drug dealers.
Now, it seems unlikely that anyone would want to lock up an octogenarian for three years, but Henshaw’s lawyer, Martin Allen, says the potential was there. “The only thing that saves him from going to the pen is Crown discretion.”
In this case, the Crown had the alternative of accepting a guilty plea on a count of careless storage of a firearm. But sometimes prosecutors, in an attempt to work around inappropriate minimum mandatory sentences, will come up with alternative charges that don’t really fit the crime.
“Why should the Crown be forced to lay other charges … to avoid consequences that are unacceptable to society?” Allen asks.
Victoria lawyer Paul Pearson, who speaks for the Canadian Bar Association on criminal matters, says it’s silly to have the entire justice system concocting work-arounds. “It’s completely ridiculous.”
The worst-case scenario, he says, would see a junior or bull-headed prosecutor push forward with a charge that forces a judge to impose a three-year sentence where it’s inappropriate.
Some justices balk. In April, an Ottawa judge refused to impose the mandatory minimum on a 48-year-old man who included his late father’s .22-calibre pistol in his checked luggage on a plane. Earlier, another Ontario judge refused to slap the three-year sentence on a man who posted to Facebook photos of himself briefly playing with someone else’s loaded handgun.
Pearson says that instead of a one-size-fits-all rule, the system needs to let judges show, well, good judgment in weighing individual, complicated circumstances.
“If we don’t trust the judges,” Pearson says, “I’m not sure whom we can trust.”
