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May 1994: The Kennedy and Sims Cases -- More Sentence Disparity

The pervasive lack of consistency in sentencing was further underlined by several other hearings which were held on May 24. Mr. Kennedy was charged with assault. The offence report stated, "Kennedy threw his meal tray through the servery at me, striking me in the chest with hot burgers and fries and plates." Mr. Kennedy pleaded guilty to the charge. In mitigation of sentence he explained that he had gone to the kitchen for his meal and was one of the last to get there. When he went up to get a banana he was told by three officers that he had already received a meal which was simply not true. He said that when he appeared before the Independent Chairperson once before over a similar incident, he was told to deal with it by talking to the keeper. He went over to the keeper and explained the situation and the keeper just told him to move along. At this point he got frustrated and just threw the food through the servery. He said that he was segregated as a result of this for two days. Ms. Buhay was asked for her recommendation and she said that given the seriousness of any type of altercation in the dining room, she was recommending a fine of $10. This hardly comports with the seriousness of the offence as she characterized it, particularly considering her previous recommendation of 45 days for Mr. Chartrand. Mr. Fox explained to Mr. Kennedy that what the institution was getting at was that the group dynamics and the strength of numbers in the dining room was always a cause of concern for any incident in that location. He concluded, "It sounds as if this was a bad day for you, Mr. Kennedy; you did not get something to which you thought you were entitled." He imposed a fine of $10 but suspended the fine for 60 days.

In comparing the circumstances in the Kennedy and Chartrand cases one is hard pressed to find sufficient differences in the gravity of the offence to justify the enormous disparity between a sentence of a suspended fine of $10 and one of 20 days in segregation which, coupled with pre-trial segregation, amounted to 52 days.

Two weeks after disposition of the Chartrand and Kennedy cases, Mr. Fox dealt with a third case which, like Mr. Chartrandís, involved an allegation of a threat to kill an officer and, like Mr. Kennedyís, was triggered by a dispute over food.

Mr. Simsí offence was described in this way in the offence report. "Sims threatened to kill me and cut my head off when I go to the courtyard." At the hearing on June 7 kitchen officer Moss testified that Mr. Sims threatened his life on the meal line. Mr. Fox asked Mr. Moss to explain in more detail what happened. Mr. Moss said that Mr. Sims had received a banana and gave it to a prisoner behind him and then asked for another one. " When he was refused he threatened me, and said something to the effect that I better watch myself when Iím in the courtyard or my head will roll." Mr. Simsí evidence was that the statement was made not to the officer but to the prisoner server who was standing next to the officer, who was the person who refused to give him the banana. He was found guilty. Mr. Sims was asked whether he had anything to say before sentence was imposed. He said that he had done six and a half years at Kent and had been clean of any disciplinary offences for over four years. Furthermore, he had a transfer application to lower security to Mission which was being supported by his case management team and the warden. Ms. Buhay confirmed that since 1988 he had had no serious or intermediate charges. Mr. Fox then stated, "This isnít going to help your transfer. Have you been told what the effect of this conviction would be on the transfer?" Mr. Sims stated, "No, I hadnít even thought about it because I did not think I would be found guilty. I did not do anything to justify this charge." Ms. Buhay was of the opinion that she did not think this conviction would affect Mr. Simsí transfer, although this seemed to me problematic in light of the reluctance of Mission to accept anyone who they saw as posing a potential threat to the safety of staff. This is particularly so with an incident that occurred in the kitchen area, because unlike at Kent and Matsqui, prisoners and staff at Mission eat in a common dining area. When asked for her recommendation Ms. Buhay said that these were serious charges and she recommended seven days segregation suspended for 30 days. Mr. Fox said that he also viewed these charges as serious and he imposed a sentence of seven days segregation, which he did not suspend. This meant that Mr. Sims was taken straight to segregation to begin his seven days. This would effectively destroy his chances of transfer to lower security.

Compare this sentence with that imposed on Mr. Chartrand and Mr. Kennedy. On the facts as found by Mr. Fox that Mr. Sims did threaten Officer Moss it is no less serious a threat than that which Mr. Chartrand was found to have made against Officer Strum. If anything, Mr. Simsí threat was to harm the officer the next time they met in the courtyard, whereas Mr. Chartrandís threat was directed to the officer when he was released from prison. Mr. Chartrandís sentencing, taking into account the pre-trial segregation, was 52 days; Mr. Sims received seven days. A comparison of the disposition of Mr. Simsí case with Mr. Kennedy is equally problematic. Both incidents took place in the kitchen. Mr. Simsí threatened to assault a food service officer, Mr. Kennedy did assault the officer by throwing hot food over him. Clearly Mr. Kennedyís offence was the more serious. Mr. Kennedy was sentenced to a suspended fine of $10; Mr. Sims was sentenced to seven days in the hole, plus the time it will take him to be assigned a new cell in the population.

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