PUNISHMENTS DON'T ALWAYS FIT THE CRIME

The danger of cheering for mandatory minimum sentences - a major
plank in the Tories' get-tough agenda - is that fixed punishments
don't always fit the crime.

Few would shed a tear over stiff mandatory minimum terms for drug
traffickers, rapists or armed thugs terrorizing communities with home
invasions.

All murderers, too, should be locked away for a long, long time. Or
should they?

An ailing, elderly Winnipeg man deliberately stabbed his terminally
ill wife to death in 2004 because he couldn't bear to see her suffer.

Under a strict interpretation of our law, 88-year-old Tony Jaworski,
who is legally blind and partially deaf, is a murderer, plain and simple.

It wasn't an accident. He knew what he was doing. He left a note on
his granddaughter's door asking for forgiveness. After he was
arrested, he told police: "Thank God she's not suffering anymore."

But the Crown dropped the second-degree murder charge and allowed
Jaworski to plead guilty to manslaughter in the death of his
83-year-old wife, Sophie.

The accused, who spent 17 months in custody before he got bail, was
sentenced to three years probation last week.

Clearly, the evidence was there to proceed with a murder trial. But
prosecutors didn't have the heart to forge ahead with a process that
calls for a mandatory minimum sentence of 10 years in jail.

And the public wouldn't have stood for it.

There may be some people who feel Jaworski deserves to spend the rest
of his life behind bars for his wife's mercy killing.

But most Canadians would be horrified at such harsh, blinkered retribution.

In effect, justice officials ignored the Criminal Code in Jaworski's
case, recognizing that following the letter of the law would have
been unconscionable.

It has been more than a decade since a Senate committee proposed that
there be a less severe sentence for so-called compassionate homicide.

As it stands, the law doesn't differentiate between murder committed
because of hate or greed or murder committed out of love and compassion.

For second-degree murder, you get an automatic sentence of at least
10 years. Robert Latimer, who killed his severely disabled daughter
in 1993, is serving such a term.

Those convicted of first-degree murder serve a minimum 25-year sentence.

Nothing ever came of the Senate committee's recommendation and, given
the political and ideological climate in Ottawa these days, there is
no likelihood of any legal reforms in this controversial area.

The unwillingness to debate the issue leaves open the possibility for
"ethically monstrous sentences" for mercy killings, says Arthur
Schafer, director of the Centre for Professional and Applied Ethics
at the University of Manitoba.

"The criminal law is exposed as being, in these circumstances, an
extraordinarily blunt and crude instrument," he says.

In Canada, there's widespread consensus that life in prison isn't
appropriate for mercy killings, says Schafer. "Do we need
retribution? Are they so wicked? The answer is no."

The only mercy killer ever to be jailed in Canada was Latimer, he
says, adding that if the jury had known about the mandatory 10-year
term, he wouldn't have been convicted.

Judges should have the discretion to decide in exceptional murder
cases that the normal penalty doesn't apply, says Jaworski's lawyer,
Greg Brodsky. "You shouldn't have to rely on the compassion of
(prosecutors)," he says.

There's a terrible gap in the law and our politicians are too
skittish to fix it.