In R. v. Dobis (February 25, 2002), the Crown appealed the appropriateness of a conditional sentence imposed by the trial judge for a large-scale fraud and theft of over $2,000,000 by a trusted employee. The Crown argued that the trial judge erred by overemphasizing the fact that the respondent had no prior criminal record and that the sentence was manifestly unfit.
The respondent, Dobis was in a position of trust, as the accounting manager in a mid-size family company, Electro Canada. Dobis had started out at Electro Canada as a payroll clerk in 1993 and was later promoted to the position of accounting manager in 1994. During a span of time between January 30, 1995 and December 24, 1997, Dobis stole a total amount of $286,636.50 from his employer by writing fraudulent cheques to himself, his corporation or his stock brokerage accounts. Sometime in 1997, Dobis became involved in a Nigerian letter-scam where a letter is sent purportedly by some high official of the Nigerian government promising large sums of money for assisting in the transfer of millions of dollars from the Nigerian government. In Dobis’ case, he was promised 30% of $35 million dollars U.S. in return for providing an account where the funds could be transferred. From October 27, 1997 to March 27, 1998, Dobis sent approximately $1.9M to banks in Germany and the United States to pay for services like “chemical decoding of cash funds”, insurance bonds, and bail for fellow participant detained in Germany for the release of the $35 million dollars U.S. Almost all of the $1.9 million dollars came from misappropriating funds from Electro Canada, and by spring of 1998, Dobis could no longer hide it from his employer. On April 8, 1998, Dobis admitted to his fraudulent activities to his employer, and he was fired. Dobis pleaded guilty to both of his charges of theft and fraud over $5000 before the trial judge and was sentenced to two years less a day to be served in the community, plus probation for 18 months and a restoration order for $286,636.50.
During the sentence hearing, the recording equipment malfunctioned and the testimony of the respondent was lost. The respondent argued that the appeal was not properly perfected in accordance with Rule 8 of the Criminal Appeal Rules, as the transcript was not complete. The Court of Appeal found that Rule 8 should be interpreted to make allowance for situations such as equipment malfunction and followed the approach taken in R. v. Hayes (1998), 48 C.C.C. (3d) 161 (S.C.C.). Neither the respondent nor the appellant in this case were found to have been prejudiced, and thus the Court of Appeal found no basis to refuse leave to appeal due to the missing transcript.
In reviewing the trial judge’s reasons for sentence, the Court of Appeal found that the trial judge considered the full range of factors in imposing the sentence, and he did not overemphasize the fact that the respondent did not have a prior criminal record. Following Lamer C.J.C. in Proulx, the Court of Appeal considered the question whether the trial judge erred by not imposing a penitentiary sentence on the respondent. The Court of Appeal found that a penitentiary sentence was required in view of all of the circumstances involved in the respondent’s offences including factors like:
The Court of Appeal cited cases where reformatory sentences were upheld or imposed, stated that in each of those cases there were “important mitigating or differentiating factors which were not present in this case”. For the Court, the serious nature of the offences and the devastating consequences to the victims made it necessary to emphasize denunciation and especially, general deterrence. The Court added further that although a conditional sentence is possible in a large scale fraud, there must be the presence of extreme personal mitigating circumstances as in R. v. Underys, [1999] O.J. No. 4372 and R. v. Bunn (2000), 140 C.C.C. (3d) 505. In cases involving large-scale frauds with serious consequences for the victims where breach of trust or abuse of a position of trust or authority is involved, general deterrence is going to the central concern of the Court.
The Court of Appeal granted leave to appeal and allowed the appeal from sentence. The respondent was given full credit for the 9 ˝ months of his conditional sentence that he served, and was given a custodial sentence of two year less a day.
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The following
article appeared in The New York Times, dated February 21, 2002.
By Daniel J. Wakin and William K. Rashbaum
Editor’s Note: It is interesting to note that the article contains highly inflammatory comments from a senior prosecutor as well as a police investigator about the accused Cantor’s conduct. These comments made contemporaneously with the announcement of criminal charges, make a mockery of the presumption of innocence and cause incalculable damage to the cantor’s name and reputation regardless of the outcome of the case.
The article graphically illustrates the peril of cases
being fought outside the courtroom. As
defence counsel in this country we have to be especially vigilant in sheltering
our clients from a similar onslaught of irresponsible commentary by public
officials who may show a reckless disregard for our clients’ right to a fair
trial.
The cantor of Temple Emanu-El, one of the nation’s most prominent synagogues, was arrested yesterday on charges of molesting his nephew in a case that prosecutors say lays out a pattern of sexual abuse within the family.
The accusations against the cantor, Howard Nevison, stunned members of the congregation and of Jewish institutions throughout the city. The synagogue, on the Upper East Side of Manhattan, released a statement saying that Cantor Nevison had previously brought “this issue” to the attention of leaders there, but that they had “found nothing untoward.” A spokeswoman would not elaborate.
Police officers from Montgomery County, in Pennsylvania, arrested Cantor Nevison, 61, at his Upper West Side before dawn. The police said the abuse happened at least three times during visits to the boy’s home in Lower Merion Township, a Main Line suburb of Philadelphia, when the victim, now 12, was between 3 and 7 years old.
The cantor’s brother Lawrence Nevison and that man’s son, Stewart Nevison, both went to jail for sexually abusing the same boy, who has a different surname.
The charges against all three men were based on statements by the victim, who first told the police about the abuse in November 1998, according to an affidavit by Detective George Ohrin of the Lower Merion Township Police Department. Prosecutors and the family decided to delay the case against Cantor Nevison because the boy was so fearful of him and risked emotional trauma, Detective Ohrin said. The boy said he was ready to proceed on Oct. 26.
The cantor’s lawyer, John P. Deveney, said the accusations had hung over his client’s head like “the sword of Damocles” for three years. “We look forward to fighting the charges,” he said.
Cantor Nevison was charged with two counts of involuntary deviant sexual intercourse, and one count each of indecent assault, simple assault and terroristic threats.
The affidavit goes much further, though, in meticulously describing a pattern of violent sexual abuse in two generations of the family. It said both Lawrence Nevison, 55, and the boy’s father, Henry Nevison, 47, told the police that their older brother Howard had sexually abused them as children. Henry Nevison said he became willing to report the incidents only after his son revealed his own abuse. And the cousin convicted in the abuse, Stewart Nevison, said he himself had been sexually abused by his father, Lawrence, according to the affidavit.
The charges against Cantor Nevison saddened officials at Temple Emanu-El, according to the synagogue’s statement.
“The cantor has been a faithful servant to our congregation for 23 years, and never in all of that time has there been any suggestion of improper behavior on his part,” the statement said. “When Cantor Nevison first brought this issue to our attention, we considered and reviewed the matter with respect to the cantor’s relationship to the congregation and found nothing untoward.”
Cantors are prominent in synagogue life, singing and leading prayers in services, overseeing the musical activity and performing some pastoral duties.
The synagogue spokeswoman, Rita Haves, said she did not know whether Cantor Nevison had any contact with children at the synagogue, which has a school.
At a hearing yesterday in State Supreme Court in Manhattan, Justice Arlene Goldberg released Cantor Nevison on a $100,000 personal recognizance bond secured by $10,000 cash, ordered him to relinquish his passport and gave him until March 19 to surrender to Pennsylvania authorities or face another hearing in New York. The Manhattan district attorney’s office did not oppose the conditions, which brought an angry response from the Montgomery County district attorney, Bruce L. Castor Jr.
Mr. Castor said the Manhattan office had ignored his request for high bail, which he called extremely unusual. He also questioned the role in the bail matter of Manhattan District Attorney Robert Morgenthau, who is a trustee of Temple Emanu-El.
“It doesn’t look good,” Mr. Castor said. “I’m not going to accuse him of doing anything wrong. I know he has a good reputation. I’m just surprised that the district attorney in a jurisdiction would not advance our interest.” He said that because Cantor Nevison is free, extradition hearings could drag on for months.
In response, a spokeswoman for Mr. Morgenthau, Barbara Thompson, said her office had told the judge that Montgomery County had asked that bail be set at $500,000 and that the matter was handled “in a routine fashion.” She said that Mr. Morgenthau knew the cantor through their roles at the temple, but that they were not friends.
Cantor Nevison, a heavy-set tenor wearing a plaid shirt and green parka, did not speak to reporters when he left court.
The Emanu-El congregation was founded in 1845 as New York’s first reform temple, and now includes many prominent and wealthy New Yorkers. Its current home, an austere building on 65th Street and Fifth Avenue built in 1929, is the world’s largest synagogue, according to “The Spiritual Traveler,” a guide to New York religious sites by Edward F. Bergman.
Mr. Castor, the Montgomery County attorney general, said the abuse was at times violent and “very, very ugly,” adding that the authorities had no reason to doubt the victim’s truthfulness because his statements had led to the other convictions. Lawrence Nevison was found guilty and is serving a 5-to 15-year sentence in prison; his son pleaded guilty to molesting the victim and his sister and was sentenced to 11 ˝ to 23 months. He is free on parole.
The three brothers grew up in Northeast Philadelphia, authorities said. The victim’s parents moved to Montgomery County in 1990, one official said, and have since moved away.
The affidavit said the boy’s mother took her son to the hospital in March 1993, when he complained of pain in his stomach and genital area. Visits continued until July 1996 for treatment of recurring injuries and pain in the genitals and anus, Detective Ohrin said in the affidavit. On Oct. 19, 1998, the mother went to the police.
The detective said he was convinced that the victim’s account was reliable for several reasons – because it was so detailed, because his parents confirmed the timing and location, and because the accounts matched the pattern of molestation by the cantor of his younger brothers.
“Unfortunately, sexual abuse within families runs along this pattern,” said Capt. Michael J. McGrath of the Lower Merion police.
He added: “It is frequently kept secret within families before they will even acknowledge it or before they bring in outside authorities. And they are children, they can’t make critical decisions, they only know what they know at the maturity level for their age.”
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The following
article appeared in The New York Times ARTS & IDEAS,
dated February 16, 2002.
By Emily Eakin
It was while in jail awaiting trial on double murder charges that O.J. Simpson hadhis famous heart-to-heart chat with the pro-football-player-turned-minister Roosevelt Grier. For weeks afterward, the press was rife with rumors that Mr. Simpson had confessed to the crimes. Questioned on the stand about what he’d heard that day, however, Mr. Grier declined to say, testifying that the conversation “was part of a religious discussion.”
In American jurisprudence, private conversations between the clergy and their congregants have generally been considered off limits to the court. Originally derived from Roman Catholic canon law, which places a seal of absolute secrecy around what’s said in the confessional, this legal convention, known as clergy-penitent privilege, is intended to protect confidentiality in all faiths.
Thus, Robert Hanssen, the F.B.I. agent arrested last year on charges of spying for the Russians, was able to seek absolution for his crimes years ago, confident that his priest would never voluntarily divulge them – or be forced to by law.
Lately, however, there are signs that such confidence may increasingly be misplaced. Thanks, in part, to a spate of sexual abuse scandals involving priests, clergy-penitent privilege is no longer considered inviolable. The latest development is yesterday’s decision by the Manchester, N.H., diocese to turn over the names of 14 priests accused of abusing children to state prosecutors.
Most states already have laws requiring doctors, therapists and lawyers to break a patient’s or client’s confidence in order to prevent a serious crime or to report knowledge of child abuse. And over the last few years, some states have passed legislation requiring the clergy to report knowledge of such abuse as well. According to data compiled by the National Clearinghouse on Child Abuse and Neglect Information, which is maintained by the Department of Health and Human Services, as many as 14 states make no explicit exemption for information obtained in the confessional.
To some scholars, the new statutes suggest a troubling erosion of religious freedom. “It’s a very disturbing trend,” said Edward McGlynn Gaffney Jr., a professor of law at Valparaiso University School of Law. “These most recent developments are a sad departure from the age-old tradition of respecting secrecy around confession.”
Sister Rose McDermott, a professor of canon law at Catholic University, said Catholic priests would be unable to comply with a law that required them to break the seal of confession. “The sacramental seal differs from professional confidentiality in the law or psychiatry,” she said. “The confessor’s obligation is absolute.”
But even if they worry that some of the state laws may be unconstitutional, legal scholars acknowledge that they have broad public support. As Paul Rothstein, a professor of evidence law at Georgetown University Law Center, put it, “There’s a societal trend against child abusers,” and, along with it, “a reaction against hiding harmful conduct behind privilege.”
That reaction was on vivid display earlier this month in Massachusetts, the latest state seeking to make the clergy “mandatory reporters” of sexual abuse. Prompted by the case of John J. Geoghan, a former Boston-area priest whose record of sexually molesting young parishioners was concealed by superiors – he now faces criminal charges and 84 civil lawsuits – lawmakers in the predominantly Catholic state drafted a bill last summer. Now pending in the state legislature, it has provoked a fierce battle between Catholic leaders determined to preserve priest-penitent confidentiality and Protestant leaders who argue that protecting children is more important.
Under the State Senate’s version of the bill, which the Catholic Church supports, members of the clergy who learn of possible abuse through confession or counseling where confidentiality is expected would not have to report it to the authorities. Protestant leaders object that the exemption amounts to an unacceptable loophole.
In a Jan. 31 letter to all members of the state’s House of Representatives, Nancy S. Taylor, president of the Massachusetts Conference of the United Church of Christ, urged legislators to oppose the bill as proposed. “While upholding confidentiality as a general principle, it should not be used to protect criminals, or criminal behavior, at the expense of innocent victims,” she wrote.
Viewed in the context of recent legal history, the current backlash against clergy-penitent privilege appears a striking departure. In fact, scholars point out, the privilege has a long and embattled past. Until the 17th century, English common law generally respected the confidentiality of the confessional. With the Reformation, however, priest-penitent privilege was abolished. As Mr. Gaffney said, “It was simply regarded as part of the Roman-papist legal regime that the Elizabethans wanted to repudiate.”
The privilege didn’t recover its standing in common law until the 19th century, when American courts began to recognize it as a basic component of religious freedom. The first known modern test case occurred in New York City in 1812 when Daniel Philips, a Catholic, confessed to his priest at St. Peter’s Church that he had received some stolen property. Insisting that the property be returned, the priest agreed to deliver it to the owner, a man named James Keating. Mr. Keating then reported the crime to the authorities, who subpoenaed the priest. Over the strenuous objections of the district attorney, he refused to testify, citing the sanctity of confession.
Issuing what may have been the first juridical defense of clergy-penitent privilege in centuries, De Witt Clinton, who as Mayor of New York City served as a judge for the case, declared: “It is essential to the free exercise of a religion, that its ordinances should be administered – that its ceremonies as well as its essentials should be protected… The sinner will not confess, nor will the priest receive his confession, if the veil of secrecy is removed.”
Other states gradually followed New York’s lead until by the middle of the 20th century, the clergy-penitent privilege was well enshrined in American law. In 1959, the privilege was invoked as the ground for overturning the child-abuse conviction of a woman whose Lutheran minister had testified against her.
But recently, the legal climate has begun to shift. In 1996, a triple-murder suspect awaiting trial in an Oregon jail delivered a confession to a Catholic priest in which he denied killing the victims. When the priest learned that the confession had been taped and that the suspect hoped to use it as evidence in his trial, he tried, through a petition and eventually a lawsuit, to have the tape deemed inadmissible. But only on appeal did he prevail.
Judge John T. Noonan, who found in the priest’s favor, said he considered the case a bellwether. “It was a surprising change in the climate that is should come up – that there should have been an attack on it,” he said.
Now, with an accumulation of such cases and the passage of strict, no-tolerance child-abuse statutes, Judge Noonan and other legal scholars predict that the Supreme Court may soon be compelled to weigh in on clergy privilege. “The more and more crimes that are ‘exempted’ from normal respect for priest-penitent privilege, the sooner we’ll have a critical mass of lower courts in disagreement with each other,” said Mr. Gaffney. “And that’s typically when the Supreme Court acts.”
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The following
article appeared in the Editorial section of The Globe and Mail,
dated February 23,
2002.
Is it fair to judge a nation by the company it keeps? Only two countries in the world permit the regular executions of mentally retarded criminals. One is the United States. The other is Kyrgyzstan, Central Asia’s bastion of democracy and human rights. (Not.)
Last week, the U.S. Supreme Court heard a plea for a ban on execution the mentally retarded. The plea came in the case of Daryl Atkins, on death row for killing a U.S. airman during a 1996 robbery. Mr. Atkins has an IQ of 59, lower that that of 99 percent of Americans.
Capital punishment is a terrible wrong, because when the state assumes the ultimate power over life, it reinforces the notion that killing can be justified. Capital punishment thus does not deter violence, but reinforces it. Its grotesque nature is on display in the Atkins case. Once the state sanctions killing, it finds it hard to stop.
Since 1976, approximately 35 of the 759 people executed in the U.S. were mentally retarded, according to the Death Penalty Information Center, an advocacy group based in Washington. People may also be executed for crimes they committed as juveniles. Eighteen have been put to death since 1976, and 82 16- and 17-year-olds are currently on death row. Other countries that execute juveniles: Iran, Pakistan, Yemen, Nigeria, Saudi Arabia.
Thank havens for small mercies: Those who offended when they were 15 and under may no longer be executed, since the Supreme Court ruled in 1988 that executing them amounted to cruel and unusual punishment. But in 1989, the court held that execution of mentally retarded people was not cruel and unusual. It looked to a social consensus to define those terms, and said a key objective measure was state legislation. At the time, just two states that permitted capital punishment barred its use on the mentally retarded.
Now, however, 18 of the 38 capital-punishment states bar executions of people with diminished mental capacity, defined as a low IQ or an inability to perform certain tasks. This opens the door to a ban from the Supreme Court.
The court should also consider international norms of decency. Even China, which in 1998 executed three times more people than the rest of the world combined, has reportedly banned executions of the mentally retarded for centuries, according to a friend-of-the-court brief filed by nine senior diplomats, including Thomas Pickering, the former ambassador to Canada, two years ago.
Moreover, when the United States raises human-rights issues with the Chinese government, as President George W. Bush did on a trip to Beijing last week, China points an accusing finger right back, citing executions of the mentally retarded. The U.S. practice is also a problem with European Union governments (no country may belong to the EU unless it bans capital punishment), and contributes to the international isolation of the U.S., the nine diplomats said.
Executing Mr. Atkins would shock the conscience. Regardless of any national or international consensus, the Supreme Court surely has enough moral capital and gumption to do the decent, humane thing.
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The following
article appeared in The Washington Post, dated February 24, 2002.
By Marcia Angell
Five years ago the people of Oregon voted overwhelmingly to permit physician-assisted suicide for terminally ill patients whose suffering cannot be relieved in any other way. Since then, about 20 Oregonians a year have chosen this option, and the law seems to be working exactly as intended.
But Attorney General John Ashcroft has announced he will prosecute Oregon physicians who help their patients in this way. Oregon is now seeking a permanent injunction to stop him. Hearings in the case – State of Oregon v. Ashcroft – will begin soon. I have decided to tell the story of my father in an amicus brief in the case, because it illustrates what is at stake. Here is that story.
On March 15, 1988, my father, Lester W. Angell, then 81 years old, took a pistol from his bedside table and shot himself through the head. He died instantly. About seven years earlier he had been diagnosed with prostate cancer. For a few years, he did reasonably well with treatment.
Four months before his death, however, the cancer began to spread throughout his body, and he required radiation for excruciating back pain. Although the pain was lessened, he suffered from nausea and vomiting as a result of the radiation and from side effects of his various medications. He knew he had nothing to look forward to except further decline and a protracted death. Worst of all for him was the prospect of losing his independence.
My father was a man of great dignity for whom independence was enormously important. He saw it as his responsibility to take care of his family, not the other way around. He had a successful career as a civil engineer, first with the Tennessee Valley Authority, then the Army Corps of Engineers and eventually as chief design engineer of the St. Lawrence Seaway. In World War II, despite being in his late thirties, he volunteered and served as a Seabee in the South Pacific. (He had a lot in common with the fictional Mr. Roberts.) He later became a lieutenant colonel in the Army Reserve. He was a lifelong conservative Republican who believed in patriotism and the duties of citizenship. But he also believed in the right to self-determination. To my knowledge, he never suffered from depression.
At the time my father killed himself, he was living with my mother near Orlando, Fla. My mother was a housewife and had always been dependent on him. Now it was the other way around. The day before his death, he fell while walking to his bed from the bathroom. My mother was unable to lift him, so she called the emergency medical technicians. They lifted him to the bed and said they would return the next day to take him to the hospital to make certain he had not fractured a bone. I believe he decided to kill himself that night because he thought it might be his last chance to do it. He had always kept a pistol in his bedside table. Had he gone to the hospital the next day, he would have been without it, and might never again have had the option of ending his own life.
My mother was sleeping in the next room and had to bear the shock of finding his body. If he had told her his intentions, she would have stopped him, as she later told me. So he did not tell her. Later, I could see from the trajectory of the bullet that he had turned in such a way that the bullet could not have gone through the wall and harmed her. I believe he had planned on the possibility of taking his own life for some time, since he had left his affairs in perfect order, including a long letter to my mother, with copies to my brother and me, instructing her on exactly what needed to be done. My father also did not tell me of his intentions, even though I am a physician and he confided in me about other aspects of his illness. Although I do not know for certain why he didn’t tell me or ask for my help, I suspect he didn’t want to compromise me in any way.
If physician-assisted suicide had been available to my father, as it is to the people of Oregon, I have no doubt he would have chosen a less violent and lonely death. My mother could have been with him. If he had known he had the option to get help in ending his life at any time in the future, he probably also would have chosen to live longer. That night would not have been his last chance.
My father’s situation was hardly unique or even unusual. Many people with terminal illness face the same dilemma. It is not a choice between life and death. It is a choice between slow, agonizing death and a quick, merciful one. Many people – not just my father – would choose the latter if they could. What was unusual about my father was not his choice but his courage and resolve in achieving it.
The Oregon Death with Dignity Act makes that choice much easier for patients and their families. But it does not preclude people from making a different choice. People who prefer a longer life to an easier death are not prevented from choosing that. Its seems to me that Oregon has chosen a path that gives dying patients the opportunity to exercise the greatest possible self-determination with the full support of the families and communities. I cannot imagine why anyone would want to prevent that.