WONDERING WHY THE JUSTICE SYSTEM IS THE WAY IT IS

Marc Emery is in jail and Bryan Fehr isn't - or wasn't until after he
made bail this week, when he was arrested again for allegedly
breaching conditions of his probation.

If that sentence doesn't sum up why the public throws up its hands in
frustration with the Canadian legal system, nothing will.

Emery sold marijuana seeds and advocated endlessly (and, yes,
annoyingly) for the legalization of pot.

Fehr asked an escort to get him a child under the age of five with
whom he could have sex.

Fehr even showed up at a Kamloops home, intent on having sex with the
child, only to be arrested by police.

Last week, the 33-year-old pedophile was arrested for allegedly
breaching conditions of his probation; apparently, Fehr did not attend
counselling designed to address his sexual desire for kids.

The fact Fehr was free to begin with has to boggle the mind of many, though
Crown prosecutor Roy Dickey did his best to explain why Fehr ended up back
on the street (go online to kamloopsthisweek.com and click on "Background:
Fehr case" for the full story).

Dickey, who has since been called to the bench and is now a judge in
Chilliwack, told KTW the decision to have Fehr plead guilty and walk
was not a failure of the justice system.

As Dickey explained, it boiled down, as it always does, to the
likelihood of a conviction.

With the Crown's main witness being an escort with reliability issues
and a familiarity with the courthouse as a defendant, proceeding to
trial could very well have seen Fehr acquitted and allowed to roam
free with no supervision whatsoever.

In a nutshell, allowing Fehr to walk was the best deal
available.

What Dicky explained is the truth, something I have seen too many
times to count when I covered numerous court cases in the 1990s and
early 2000s.

I understand why these cases proceed as they do, but it does little to
dampen the head-shaking each one elicits.

The Crown prosecutor, the presiding judge and the defence lawyer are
not at fault.

They operate in a legal system that creates these situations, a system
that has long been criticized as weighing a bit too heavy on the side
of the accused.

Whether that is true is in the eye of the beholder.

For every punk like Jon Bacon - the Abbotsford gangster who walked
free after a judge ruled his arsenal of weapons and wad of cash was
improperly seized - there are innocent men like Donald Marshall, David
Milgaard and Guy Paul Morin, whose lives have been ruined after being
wrongfully convicted.

But, when one looks at the Fehr case on its own, how can bewilderment
not be the key reaction?

If it's fact that he arranged to have sex with a child, and he agreed
to pay $5,100 for the arrangement, and he arrived at the house of the
escort who promised to procure the child, and he fully expected to
have sex with the child - how can a legal system allow him to walk
away?

Again, we understand the explanation with respect to the reliability
of the escort as a witness, but surely a crime (and it is a crime as,
in my mind and that of many others, Fehr had de facto sex with a
child) as heinous as this cannot be torpedoed so easily?

Fehr's alleged actions following his release - not attending
counselling and asking his girlfriend to dress as a child during sex -
surely do not instill confidence among the great unwashed that he does
not pose a threat.

Nor does the fact Fehr has already spent a year in jail for a previous
sexual assault and just recently had another charge of sexually
assaulting a child under 12 stayed.

Judge Stephen Harrison decided to grant bail to Fehr, apparently
confident the 33-year-old does not pose an undue risk while roaming
free under conditions he has already ignored.

This is not a call to lock 'em all up and throw away the key. This is
not a call for more prisons and harsher sentences.

It is, though, a call to question why seemingly straightforward cases
like this, in which logic suggests a lengthy stint in jail is a sure
bet, seem illogical.