Sentencing of a Dinosaur
The judge, the prosecutor and I are sitting in the empty courtroom. This particularly Court is more than a hundred years old. The walls are lined with wooden panels and pictures of Her Majesty the Queen. It is deathly quiet as we wait for my client to be brought from the jail. Eventually he arrives and is placed in the prisoner’s box. He is mumbling to himself, something about aliens.
The judge turns to me, “Counsel, what’s happening today?”
“Sentencing, Your Honour,” I reply.
I remind her that after a two-day trial my client, Steve Wilks, was found guilty of arson.
The judge then addresses the prosecutor and asks what he thinks the appropriate sentence should be.
“12 month period of incarceration, and 3 years of probation your Honour” he replies.
She asked me if I am in agreement.
“No, Your Honour, we are asking for no jail time. A suspended sentence with probation.”
The judge’s eyes widen, “Okay counsel, I expect you will have some good faith basis for asking for a suspended sentence when your client tried to burn down an IKEA. Let’s hear it.”
For most defence lawyers, the sentencing hearing is the most dreaded part of the job. When you believe your client is innocent, it is nearly unbearable.
But what is special about sentencing is that it is first and only time in the criminal process where the Court learns about who the defendant is beyond the brute details of the crime that they committed.
To be clear, this was not a case where I believed my client was innocent. He is shown on camera, wearing a dinosaur costume, and entering an IKEA. Upon entry, he looks directly into the security camera — using the reflection of the lens to see if there is anything stuck between his teeth. In full view of 30 customers he then leans over a piece of carpet and lights it on fire. About 5 seconds passes before he jumps on the floor and rolls back and forth over the flame in order to put it out. He then grabs a fire extinguishers, ensuring every ember is extinguished. There is a small burn mark on the carpet, but otherwise no damage. He is arrested by security.
While my ego tells me every case is winnable, there is clearly no conceivable defence here. I advise him to plead guilty. Steve tells me it wasn’t him. He insisted that it must have been someone else in the dinosaur costume. Despite numerous conversations, he would not change his mind. He wanted to go to trial.
The trial was short. Almost as soon as the defence rested its case the judge, without missing a beat, found my client guilty. He did not believe that the security guard had arrested the wrong dinosaur.
I walk up to podium and begin my sentencing submissions. I tell the Court about my client.
Steve Wilkes was a good kid. He was raised by a single mom, and despite not having a lot of money, he had a wonderful childhood. He grew up in a small town near the border of Ontario and Quebec. He played softball and was captain of the chess team. He was loved and admired by his peers and an exceptionally bright student. In his last year of high-school he was elected president of student counsel and class valedictorian.
But Steve never got to give the valedictorian address because didn’t finish the school year. Severe mental illness hit him extremely hard. He ran away from home and began living on the street. His mother, aunt and uncle spent days looking for him. They eventually found him and brought him back home. A few days later he ran away again. When he returned, he would not speak. One day he took a hammer and destroyed every mirror in the house. It was senseless. He would slash the tires of the car, spray paint the kitchen. Though his family loved him, they could not contain him. They had Steve assessed by a medical professional. Steve was diagnosed with schizophrenia, split personality and bipolar disorder. He was given medication but Steve was so unwell that he couldn’t recognize that he was ill and refused to take it. His family tried to seek help from the government but Steve was now 19 years old and could not be held in an institution against his will unless it was ordered by the Court.
One day he left home and did not return. A few weeks passed and he turned up in prison. He had climbed into a school on the weekend on wrote his name 1000 times on a chalkboard — he was arrested for trespassing. Later he was arrested for throwing Gatorade on someone waiting for the bus — assault. He was then released and rearrested a week later for entering a Booster Juice and screaming that a monster was chasing him — public disturbance. Eventually the police decided that he was a danger to society. He went before a Judge and was denied bail.
This was the start of Steve’s long relationship with the criminal justice system. He would spend the majority of the next 3 years in prison, almost always for mischief-like, non-violent, offences. With a growing record and dozens of probationary conditions that he has not hope of complying with, he is never out of jail for more than a week or two without being rearrested. Defence lawyers refer to people like Steve as a person “serving a life sentence on the instalment plan.” A term of art used for people who never commit any serious crimes to warrant long sentences, but instead string together 30–60 day sentences are a time, over and over again.
I tell the Court that sentencing Steve to 12 months in prison is to punish someone whose greatest crime was being mentally ill in a society that does not know how to treat him. He doesn’t need jail, he needs help. Help that his loved ones begged for but never received. Steve’s story is a sobering reminder of the fragility of our circumstances. The lives we work so hard to build, that we are so proud of, can be ripped away from us at any moment.
I am trying to remind the Court that it has just spent thousands of dollars and valuable court resources to ensure that a sick person is caged and locked away. I am trying to convey the vacuousness of this proceeding.
I look over at Steve. He is gesturing to me, as if to say, “wrap it up.” He has been through enough sentencing hearings to have lost hope that anyone will have any sympathy for him. I’m not sure he even wants any sympathy. He wants to get it done with so he can return to his cell. I finish my submissions and sit down.
The judge has been through this before too. She knows that there is no justice here. She knows that Steve will be released back into the community with no help, no treatment and no money. He will almost certainly be back in front of her or another judge in a matter of weeks or months. This is our system, broken as it is. Our only answer to these complicated problems is imprisonment. So the judge does the only thing she has the power to do.
She says, “How long has Mr. Wilkes been in custody for these charges?”
I respond, “138 days your Honour.”
The judge rules, “I find that 138 is in jail is an appropriate sentence Mr. Wilkes is at time served, and so he is free to go.”
Names and facts have been changed in order to conceal the identities of all participants