WINDSOR - Described as a man with a "big, open mind" but with "even abigger open heart" - whose sentence in adangerous-driving-causing-death case broke new ground in terms ofrehabilitation for offenders - Justice Saul Nosanchuk of the OntarioCourt was honoured by some 650 people, including some leading lights ofCanada''s legal profession, on the occasion of his retirement from thebench.
Toronto criminal lawyer Edward Greenspan, who handled the appeal of the case, R. v. Hollinsky, for defendant Kevin Hollinsky, said Nosanchuk's sentence in the case "best defines" the judge, who has long been regarded in local legal and community circles as someone whose decisions contained a strong dollop of compassion and respect for the individual as an antidote to re-offending.
"The judgement was highly controversial," Greenspan said. "It took guts, determination, and most of all a tremendous heart."
On the night of July 30, 1994, Hollinsky, who had been out drinking with friends, lost control of his automobile and killed his two closest friends, who were in the car with him. "All three were wonderful boys, inseparable like brothers," Greenspan said. "The families of the deceased boys did not want Kevin to go to jail."
Patrick Ducharme, considered the leader of Windsor's criminal defence bar, who handled the lower court case before Nosanchuk, said the deceased youths' parents testified their sons would not have wanted Hollinsky to be jailed, and that it could have been any one of the boys behind the wheel that night.
"I couldn't help notice tears, big teardrops, streaming down Saul's glistening cheeks as he listened to this testimony and as he fashioned that unique and interesting and brave sentence," Ducharme told the retirement banquet audience, composed of a wide array of lawyers, law enforcement personnel, politicians, and members of social agencies who deal with young offenders and ex-convicts.
Until that time, guilt in a dangerous driving case causing multiple deaths would have resulted in at least a three- or four-year penitentiary term. But, typical of the way he regarded sentencing, Ducharme said, "Justice Nosanchuk never bowed to necessarily following precedent if he thought it was the right case to take a chance."
Instead, the justice put Hollinsky on three years' probation and ordered him to undertake an extensive speaking tour of area high schools to talk about what happened that night and enlighten his peers about the dangers of drinking and driving. Overall, Hollinsky spoke to 8,500 students on more than a dozen occasions. (At trial the Crown did not proceed with a driving while impaired charge.)
Greenspan said the appeal court agreed with the trial judge, noting the "powerful deterrent effect" of the community service order. "The families of the deceased boys, the Hollinsky family, and everyone in the courtroom, stood and applauded the three judges for affirming the wisdom, the kindheartedness and the generosity of spirit exhibited by Saul. Only Saul would have predicted correctly that Hollinsky would vindicate him for this truly controversial result."
At the time, former area member of Parliament Shaugh-nessy Cohen lauded the decision in the Commons, asking, how the community would have benefited from a jail sentence. "Instead he has educated hundreds of young people and brought home to them in a very serious, personal, and emotional way the disastrous results of the behaviour of drinking and driving."
Indeed, Nosanchuk said the sentence has now been often copied. Ironically, he imposed it just before Criminal Code changes were brought in, in 1996, allowing conditional sentences and alternative measures for adult offenders. In fact, if Hollinsky had been given a conditional sentence with house arrest - which remains in many ways a controversial provision among wide sections of the public - his fortunes could have been worse. As Nosanchuk said in an interview, "He escaped the stigma of a jail term served under house arrest, and instead he got a suspended sentence . . . and all this community service."
Nosanchuk goes back a long way with Greenspan, who made the four-hour trip to Windsor just for the banquet. They have collaborated on the Bernard Cohn Memorial Lectures in Criminal Law, published last year in Counsel for the Defence, edited by Greenspan, who described Nosanchuk in the book as "much loved" among his students as the longest-serving sessional lecturer at the University of Windsor. The book's foreword was written by Nosanchuk, who also contributed a chapter about a classic case of using the insanity defence, 1966's Matthew Charles Lamb, whom he defended while in the defence bar for 18 years prior to appointment to the bench. Greenspan told Nosanchuk before those at the banquet that he was a "man of great substance, and most of all a compassionate human being."
If Greenspan can be considered Canada's pre-eminent criminal defence lawyer, his counterpart on the civil side could be Harvey Strosberg, the Windsor-based litigator who has garnered his share of national headlines in recent years representing plaintiffs in significant class actions. Strosberg presided over the night as master of ceremonies.
In an interview with Law Times, Nosanchuk said he tried to bring the same considerations he had as a defence counsel to his role on the bench.
"When people came to me, no matter who they were or what they did, I always took them at face value as a decent person to deal with," he said. "In other words I tried to find the good in each person."
He said many of those who commit crimes "are in turmoil" and in fact are quite decent people. But "there's another part of them pulling towards crime."
He credited his concern for the underdog and sense of social justice to, first, his parents, Jewish immigrants from White Russia who were community-minded grocers in Windsor and whose store was not three blocks from where the banquet was taking place, and, second, to the Catholic Basilian Fathers who taught him at Windsor's Assumption University, now part of the University of Windsor.