In the early hours of Sept. 30, after having a few drinks with friends, David Smith climbed a scaffolding in front of his east-end Montreal apartment building as a prank. But his stunt soon ended when a Montreal police cruiser drove by. The police ordered Smith down from his perch and, after running his name and date of birth through their computer as part of a routine check, put him in handcuffs and took him downtown to Bordeaux jail. Three days later, Smith, 40, a freelance translator, was informed by officials there that he faced a prison sentence of two years and five months. The sentence arose from a session in Montreal municipal court two years earlier— which Smith did not attend—dealing with his failure to pay $11,000 in parking fines and not completing community service work ordered as an alternative to the fines. Last week, as Smith completed three weeks behind bars, his lawyer was still looking for a way to have him released. And a debate raged over the severity of his sentence. Said Daryl Davies, a criminologist with the Ottawa-based Canadian Criminal Justice Association: “It is using a
penal sanction completely inappropriately.”
Smith was in custody in the suburban Montreal Ste-Anne-des-Plaines reception centre, where authorities assess prisoners before deciding which penitentiary to send them to. Because his sentence was longer than two years, Bordeaux officials had transferred him to a federal facility, as required by the Criminal Code. While he read Soviet novelist Alexander Solzhenitsyn’s The Cancer Ward in his six-by-12-foot cell, a dozen of his supporters picketed the Montreal courthouse on Oct. 12, demanding his release. Smith went on a hunger strike to protest against his lengthy sentence, but ended it on Oct. 20 at the urging of friends and family members.
Smith’s sentence has also led to criticism from civil liberty and law reform groups. Said
Davies: “It is not only inhuman, it is impractical. The guy owes a debt to the City of Montreal in parking fines, so they put him in a penitentiary where Canadian taxpayers can pay for his upkeep.” But federal and provincial justice officials said that they had no authority to release Smith.
According to Smith’s lawyer, Philip Goulston, it is too late to appeal his client’s sentence. He said that Smith could only be released if a judge rules that any stage of his arrest or incarceration deprived him of his rights. On Oct. 20, Goulston filed a petition for an issuance of a writ of habeas corpus with Quebec Superior Court, requesting that corrections officials appear before a judge to explain why Smith is being held in a federal prison. Although Goulston expects those officials to cite the Criminal Code requirement, he plans to argue that both the length of Smith’s sentence and his incarceration in a federal facility violate the Charter of Rights and Freedoms guarantee against cruel and unusual punishment. As well, Goulston claims that the sentence was “grossly overcalculated.” He says that under the Summary Convictions Act, which provides for sentences based on infractions such as nonpayment of
parking fines, Smith’s sentence of 884 days is about 450 days too long. If that motion fails, Goulston said, the earliest that Smith would be eligible for parole is in six months.
Smith’s troubles began in 1982 when he did not respond to Montreal municipal court summonses as a result of unpaid parking tickets. By the following year, he had received 128 tickets. At the time, Smith was self-employed as a French-English translator, and his brother, National Film Board producer John N. Smith, said that he often parked downtown to drop off assignments. John Smith, who is leading the fight for his brother’s release, said that he did not understand why his brother accumulated so many tickets. “It is mind-boggling,” he said. “It’s completely beyond me.”
In 1984, a warrant was issued for Smith’s arrest and he was jailed for a few hours in Montreal’s Bordeaux facility. Prison officials told Smith that he could either pay his fines, serve 884 days—two years and five months— in prison or perform community work. Smith chose community work, but several months later, a Bordeaux official filed a form with Montreal municipal court stating that Smith had not completed the work. Goulston said last week that his client completed about 45 hours of service but stopped because the community centre ceased sending Smith work. And, the lawyer said, Smith was not informed of the Bordeaux official’s noncompliance form.
But in July, 1986, a municipal court judge issued warrants for Smith’s arrest, specifying that, if arrested, he would serve the 884 days or pay the fines on the 128 tickets. Although the face value of the tickets was originally less than $3,000, administrative and court costs increased the total to $11,000 by the time the warrant for Smith was issued in 1986. Smith’s lawyer said that his client may be able to obtain his release by paying the fines, but additional costs have now increased the amount to $12,500. So far, friends of Smith’s have only been able to raise about $500 toward that goal.
While many observers said that Smith’s sentence was too harsh, a spokesman for Quebec Solicitor General Herbert Marx said last week that the province had no control over sentencing and could not transfer Smith to another institution. On the federal level, a spokesman for Solicitor General James Kelleher offered a similar response. Said William Pristanski, Kelleher’s chief of staff: “Once prisoners have been incarcerated, we cannot do anything about it.”
As a result, the case led to calls from some editorial writers for judicial reform. Said the Montreal Gazette on Oct. 15: “This case is a disgrace to the Canadian judicial system.” As well, the Criminal Justice Association’s Davies said that he was writing an editorial critical of Smith’s sentencing for the organization’s monthly magazine, Justice Report. As Smith’s supporters fight for his release, his case is now raising interest in the legal community and throughout the country.
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