A SCARLET LETTER CASE

The idea that the punishment should fit the crime seems a good one in
theory, although not necessarily in practice.

Giving judges the latitude to impose alternative sentences or community
service as punishment for crimes for which others might be jailed has
always been worrisome because the apparent inconsistencies that result tend
to bring the law and the administration of it into disrepute.

Such a case has surfaced in Winnipeg. A male, 17, who pleaded guilty to
dealing in small quantities of the drug ecstasy was sentenced this summer
to two years' probation with the conditions that he write a 20-page essay
on the evils of drug use and then make presentations to assemblies of
students at eight high schools based on the essay. He was told of some
Crown sources he might draw on. Although it is unclear exactly what the
essay was to say, it is presumed that the judge expected a one-sided
examination of the health and legal risks of drug use with a warning
against breaking drug laws. Such sentences have been around at least since
the Puritan practice of requiring women who became pregnant out of wedlock
to wear a scarlet-letter A, for adulteress. Such scarlet-letter sentences
are supposed to ensure that offenders feel shame even if they do not feel
especially guilty.

In the current case, the drug dealer went to sources other than those
prescribed by the judge and wrote at length about ways of avoiding the
ill-effects of ecstasy, saying that abstinence "does not work and will
never work" because young people are curious and will experiment. The essay
clearly failed to meet the judge's expectations and he has been ordered to
rewrite it to meet expectations.

The process, however, no matter its intent, is beginning to look absurd. If
the next essay passes muster, who will believe that it is an honest
expression of its author? And if it cannot be believed to be so, then is it
a false statement that the offender has been coerced into making? In the
1980s, in a case where an employer refused to sign a dictated letter of
apology as ordered by a labour board, the Supreme Court of Canada reversed
the order. "This type of penalty is totalitarian," the late Justice Jean
Beetz concluded.

Whether this order can be described as "totalitarian" is not now at issue.
But there can be no doubt that what it does is raise questions about
whether the courts should tell people what to think despite Charter of
Rights guarantees to the contrary. Sending the male back to the drawing
board at this point raises the question: Is this an educative process or
simply ritual? Given all the publicity, it also raises concern that if the
offender appears at schools to fulfil the conditions of his probation, will
the result be anything other than to bring the court and the law into
disrepute? Will it appear to students to be anything more than a
big-brother authority coercing someone to profess to believe something they
do not, and that doing so is simply an easy way to avoid a more onerous
punishment? Clearly, what is evolving in this instance is not what was
intended. But just as clearly, that is the risk that judicial discretion in
sentencing poses.