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David James Leblanc arrives at court in Dartmouth, N.S. on November 26, 2012. (Andrew Vaughan/THE CANADIAN PRESS)

Globe editorial

Canada's protection of violent predators is a travesty Add to ...

Torture is the simplest word to describe what David James Leblanc of Nova Scotia did to his victim, a 16-year-old boy. He chained his feet to bolts in the floor, and his wrists to bolts in the ceiling, for three full days and nights. He and another man raped the boy as many as three times a day for eight days. A third man was charged with sexually assaulting him after allegedly paying Mr. Leblanc. Miraculously, the boy escaped, naked and still in chains. A doctor gave him HIV medication just in case.

The maximum sentence for kidnapping is life in prison. The maximum for sexual assault is 10 years. The maximum for confining someone against his will is 10 years.

But Mr. Leblanc was shielded from a long sentence by the “totality principle” of Canadian law, which does not permit judges to stack one sentence for each offence on top of another. “Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh,” the Criminal Code says.

Mr. Leblanc was sentenced this month to just eight years for his crimes against the 16-year-old, and three more years for offences involving two small boys in his care – fondling a five-year-old and posting images of himself, the five-year-old and a two-year-old to a child-porn website. He will be eligible for full parole in a little more than three years.

The totality principle is part of what separates Canada’s more merciful criminal-justice system from the harsher U.S. one, where absurd sentences of 150 years are not unknown.

But, as interpreted by some Canadian judges, the totality principle is protecting some violent predators from a just punishment. The Leblanc case isn’t alone. The trial judge in Canada’s first post-2001 homegrown terrorism case cited that principle to limit the sentence of Momin Khawaja of Ottawa to 15 years (later raised to life by the Supreme Court).

The Leblanc case wasn’t one of a judge being merciful. The sentence was jointly requested by the Crown and defence. Craig Botterill, a senior prosecutor with Nova Scotia’s special prosecutions unit, said abduction and rape usually brings a five- to seven-year sentence in Nova Scotia. If the offences against the two small children had been on their own, they might have brought five years, he said; but overall, the 11-year sentence was better than he expected. Eleven years was a negotiating position – he expected the defence lawyer to fight for 10, he said.

“It’s frustrating for us,” Mr. Botterill says. “I’ve been doing this for 31 or 32 years. There’s a disconnect between what the public expects and deserves, what we see in media reports from cases south of the border, and what we actually deal with in court, day in and day out. You get a little bit mentally defeated after a while.

“Invariably a good result, like here, 11 years, pales next to what the guy really should have got. Parliament has given us great maximum sentences, but what the judges are willing to impose just pales by comparison to what these guys deserve.”

The sentence strikes us as a travesty. The crime against the 16-year-old was one of total dehumanization, an extreme form of torture utterly cold to the victim’s suffering. “David Leblanc has changed forever who my son is and who he was destined to become,” his mother wrote in a victim-impact statement.

It’s as if the justice system could not see the crimes whole – as they actually were – but instead looked at them in pieces, and sentenced Mr. LeBlanc only on one piece.

Even measured against the totality principle, the sentence defeats the underlying premise: “a total sentence which reflects all the offending behaviour . . . and is just and proportionate,” British guidelines say. And the Supreme Court of Canada says, “The only restriction imposed by the totality principle is that the sentence not exceed the overall culpability of the offender.”

Something has gone awry. The totality principle is not meant to keep sentences artificially low. Mercy is good, but keeping dangerous predators off the streets is important, too.

This is an area ripe for reform from Prime Minister Stephen Harper. He has brought in mandatory minimum sentences for many crimes, but he has not provided for “stacking minimums,” as in the U.S., where, for instance, a first offender in his twenties who carried a gun while selling marijuana on several deals was sentenced to 55 years in jail. Canada could make the stacking minimums work with the totality principle, raising sentences in a reasonable way.

“Parliament could put provisions in the Criminal Code that make mandatory minimums consecutive, one to another, so we could crank something like this up to 15 years,” Mr. Botterill says.

The Crown could have sought to have Mr. Leblanc declared a dangerous offender, and held indefinitely. Why didn’t it? Mr. Botterill said of the prosecutor in Bridgewater who handled the case, “I know from talking to him after the fact that he just didn’t see anything in the facts of this particular case that would suggest that Leblanc is going to do this again in the future.” No presentence report was done, and no psychological risk-assessment. Nor did the Crown seek a long-term supervision order so that Mr. Leblanc could have been watched for up to 10 years after release.

Canada shouldn’t abandon the totality principle and become like the United States. But the justice system’s failure to use the tools it has, such as maximum sentences, and its use of the totality principle to shield the worst offenders from the crushing sentences they deserve, means that the stacking of mandatory minimums in cases of extreme violence may be necessary.

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