Making sense of Lamb’s plea bargain: a how-to

(Re-blogged and untouched from the Winnipeg Free Press)

The equation is simple.

No evidence = no case. No case = no conviction.

So it’s curious to me to see so much angst and questioning of the plea deal and joint-recommendation that saw adouble killer sentenced to 20 years without a chance at parole for at least nine (3,285 days) for the killings of Carolyn Sinclair and Lorna Blacksmith. Not to mention he’s already been in for about 18 months.

We should be sending thank-you cards to the Manitoba Prosecution Service for the deal they were able to reach and secure with defence lawyer Martin Glazer in the Shawn Lamb case, which puts Lamb behind bars for a very long time.

In fact, it was said many times in court Lamb could die in jail before he gets out.

Instead, there’s now wide-spread criticism of a very good deal. And a profound lack of understanding, apparently, about the plea bargaining process, how it works and how our justice system would grind to a halt without it.

Instead of haranguing you further, I simply present senior Crown attorney Sheila Leinburd’s fantastic and frank explanation in court regarding the plea deal, why it was arrived at, and what the alternative really was. (The facts of the case are here).

Usually, explanations of the how and why of plea arrangements aren’t nearly as comprehensive.

For the record:

It is clear upon perusal of all the facts before the court, this investigation was inherently both challenging and difficult for the City of Winnipeg police department.

Despite the best efforts and lengthy investigation of the Winnipeg Police Service, there is very limited evidence available to the Crown.

There are no witnesses to these two homicides. There was extremely limited forensic evidence.

And given the passage of time prior to the discovery of the bodies and the consequent deterioration of the bodies due to the exposure to the elements, there were limited medical findings in each of the autopsy reports – to the point in the instance of the death of Lorna Blacksmith there was no determined cause of death.

Consequently, the description of the killing of both of these women is left to be taken exclusively from the accused’s own statement.

The conviction of Shawn Lamb therefore rests solely on his statements to the police, and on the admissibility into evidence of those statements.

Were there to be a voir dire on the admissibility of Lamb’s statements, uncertainty existed as to whether or not the statements would, in fact, be ruled admissible by the court.

There are persuasive arguments that can be made on the part of the Crown as to the admissibility of these statements.

Equally, there are compelling arguments that can be made by the defence to the exclusion of the statements.

Consequently, and after careful examination of this exigency by the Crown, the admission into evidence of these three inculpatory statements which are necessary for the conviction of the accused, cannot be reasonably assured.

It is fair to state that in this particular case there can be no real certainty as to the admission of the accused’s statement. It is equally fairly stated – but for the admission of the accused’s statement into evidence, that the Crown’s case would fail.

Given the lack of any other available evidence to the Crown, the significance of the potential exclusion of the accused’s statement from evidence takes on additional weight.

In fact, its potential for exclusion – in fact, likely exclusion – takes on critical significance in terms of management of the prosecution.

Justice Rick Saull: You said, ‘Likely exclusion?’

Leinburd: Yes. And I say reasonably, likely it would have been excluded. There was a real possibility to that.

Consequently, the evidentiary exigencies in this particular case are such that were the statements to be ruled inadmissible that there would have been little, if any likelihood of the prospect of holding Shawn Lamb responsible for the deaths of either Lorna Blacksmith or Carolyn Sinclair.

There would be no accountability on the part of the accused for those tragic events, nor would there be certainty for two affected families or the public at large.

In return for those exigencies in the evidence, the accused has given up his right to a trial. He has entered guilty pleas to two counts of manslaughter in exchange for consideration.

This consideration has taken the form of a reduction of the original charges from murder to manslaughter and the sexual assault allegations currently before the provincial court will not proceed.

These resolution discussions were the result of lengthy, methodical, comprehensive and scrupulous consideration by both the Crown and defence counsel.

Rather than expose both of these two tragically impacted families and the public at large to the risk that Shawn Lamb may walk free … it is the Crown and defence counsel’s considered opinion that this is in fact the quintessential instance of a true quid pro quo.”

[EDIT 23/11/2013 — CORRECTS TYPOS]

A ‘vicious, vicious cycle’ continues

(This post is re-blogged from the Winnipeg Free Press “Crime Scene” blog.)

I have a dream about what I would do if I were to ever win the lottery or otherwise have the good fortune to sign my own paycheques, as it were.

I would travel the province and country for at least two full years to examine the youth justice system as only considerable time and complete, undivided focus, could allow.

I spoke last week to a great group of University of Winnipeg students who are studying the justice system, the court process and criminal law procedure in depth.

They’re looking closely at issues including disclosure, wrongful convictions and other serious systemic problems that can happen and, why.

It was only in the dying minutes of my time with them that I remembered the most important thing I wanted to tell them.

That being: When it comes to youth justice and all that entails in the true meaning of the word “justice,” I believe we’re failing and we either need to do better or find new tools and ways of doing things. I’m just being honest.

We’re not failing in the sense that there aren’t great people, from correctional officers and social workers to lawyers and judges, grinding it out every day, doing the best with the resources they have to work with. There are, and they don’t get nearly enough attention or accolades for their work.

I mean we’re failing systemically. In terms of the Youth Criminal Justice Act’s stated intent to promote a just and safe society and long-term protection of the public by focusing on rehabilitation, and not punishment, as a first principle for young offenders, who have diminished moral culpability because of their ages.

More importantly, we’re failing in how the youth criminal and child-welfare systems intersect and don’t appear to share each other’s objectives.

Well, they may in principle. But in practice, as I’ve continually seen over the years, it’s a very different reality entirely.

I’ll give you just one small example of this.

I call it the ‘how kids fall into a black hole’ scenario. Followers of my blog over the years are familiar with my coverage of this issue, how youth jails become ‘warehouses’ for child-welfare and mental health concerns

This sad drama appears in various permutations, but almost always involves a bewildering and (I say) shameful lack of communication and co-ordination between Child and Family Services and the criminal youth justice system.

Interestingly, it’s seldom that you can just point a blaming finger over this issue – and that’s not my intent here, really. But it never seems to change.

Here’s this week’s example. One where it takes a little time to tease out all the complexities at play. Apologies.

It also bears mentioning that as a member of the public, one doesn’t often get the full, fleshed-out picture in youth court.

Due to CFS privacy and YCJA access provisions, there’s no opportunity to access reports and other documentation which could provide greater detail as to what’s really happening. So you’re left sometimes with what you’re left with in terms of what the various actors put on the record.

But the lack of access to documents doesn’t mean that the issues aren’t valid, that they’re somehow just misunderstandings borne out of a lack of public disclosure.

The problems are real.

In the spring of 2013, the parents of a criminally-involved 14-year-old (‘DD’ we’ll call him here) sign a voluntary placement agreement with CFS for six months. His folks have seven other kids at home and DD’s acting out causes them to ask CFS for help. CFS – Southeast CFS to be exact – steps in to take him.

He’s the only one not living in care (save for an older sister who also came into care due to a pregnancy). He has suspected FASD and ARND, cognitive issues which make him more apt to act impulsively.

In his own words: “I do before I think.”

In May, he’s handed a year of probation for a break-and-enter, failure to appear in court and failing to comply with a bail order. The sentence, given that it’s his first-ever, is a year of probation. In June, he’s arrested again for breaching probation and given a few hours of community-service work.

In September, he pleads to more probation breaches and gets more community-service hours.

What’s important to note: The probation breaches are all because he leaves the various emergency hotel shelters CFS is routinely placing him in, often returning home because he’s upset at the fact all his siblings remain there and he’s not.

Since he came into care, he’s been shunted between eight hotel placements.

It’s not all CFS’s fault for this, however. Court hears more “stable” foster placements can’t be had for him until he gets his behaviour in check. Yes, he’s 14, but some of the responsibility has to fall on his shoulders.

But arrested again in early October, DD plummets into the black hole.

It happens like this: The Crown, rightfully, won’t consent to bail him out unless CFS comes up with a better residence plan than hotel rooms for him to live in.

And it’s pretty clear to the defence it would be a hard sell to a judge to release him if there’s nothing new in DD’s bail plan to satisfy the court it just won’t all end up with him collared again and returned to the Manitoba Youth Centre.

But at the very same time, the skimpy nature of DD’s criminal past and the current charges he’s facing makes himineligible for custody at all if he were to just plead guilty and deal with his charges. In essence, we’re criminalizing a child, largely because of systemic factors beyond his control. I see that as a big problem.

And CFS, you ask? They’re hard to track down.

Now, over the years, I’ve heard more than a few defence lawyers complain that they can’t get CFS down to court to answer questions about one of their youth clients.

Despite their complaints, I can count on one hand the number of times I’ve actually seen a judge subpoena a social worker — no small thing — to attend and talk about what the heck is going on with a young person.

It happened this week in DD’s case. On Tuesday, the case comes up in the afternoon, and Judge Catherine Carlson is told his defence lawyer was asked by another judge to call DD’s social worker and get her to come to court and answer questions about the hotel “emergency” placement plan for him. The CFS worker, in the past, had been in court to support him.

The lawyer is candid, says she called and the worker replied, “she’s not available today — she’s not available any day this week and the earliest she could attend is Tuesday (the 12th). And so, she’s not available to the court.”

As well, there is no non-hotel plan available at this time, the lawyer says she was told.

The worker was asked if there was a day she could “squeeze into her schedule” but the lawyer was still awaiting a call back to see if that was possible.

Is there anyone else from the agency that could come? Carlson asks. This isn’t likely. Before her, Carlson has an in-depth forensic psychology report outlining the concerns with DD and CFS’s continued use of a hotel-placement plan for the future.

The Crown relays its position again. It would consent to DD’s bail if there was a “proper plan” in place, but, “we’re doing (DD) a failure because we keep returning him into the same poor circumstances,” the prosecutor says. The hotel placements are “not adequate.”

He says the court has the option of mandating CFS to attend.

“I think that what’s troubling to me is the worker did come down and express concerns, which is why the forensic (report) got ordered. But then she didn’t participate in the forensic and… it seems… that just at this point there’s more questions than answers… I guess we’re stuck.”

“Somebody’s got to come down and answer what’s going on here.”

Judge Carlson agrees: “To say that she’s unavailable till Tuesday is concerning knowing that there’s a young man in custody and needs a better plan.”

So, a subpoena ordering the worker into court for Thursday is drawn up.

That day, the worker duly appears, and hears now from Judge Carena Roller.

“There is, for whatever reason, a lack of plan… he’s remaining in custody when he’s not eligible for custody. That’s a problem for me,” Roller says.

The forensic report hints at the fact an undiagnosed medical or psychological issue is at play in DD’s situation, an issue preventing him from complying with his court orders and therefore prompting his return to custody.

“The irony is we don’t know that because there was no response from the agency, no background provided to the assessor,” Roller says.

Ah, the worker says, that’s not entirely true. She was in touch with the doctor who assessed DD. There was another report done. The other one wasn’t prepared for court purposes and looked at his needs in the community. The worker insists that second report was sent to the doctor who did the forensic evaluation.

Regardless, DD’s impulse control is “severely impaired,” the worker says. It’s possible medication may help calm him — but doctors won’t prescribe it until they’ve had up to three weeks to observe his behaviour. That’s been a problem because DD goes AWOL, she says.

As for where he’ll live upon release, the worker says as follows: “Placement is determined on the day of release based on what beds are available in the system. I can tell you what’s available today, but I couldn’t tell you what would be available on a different day.”

What’s available today, Roller asks.

“An emergency shelter.”

Is that 24-hour supervision?

“No. The shelter we’re talking about is a 16-bed emergency shelter where he would be expected to attend the day program (school)… we haven’t been able to register (DD) in school because he tends to be AWOL before we can stabilize a program,” the worker says.

Why aren’t we talking about a locked setting then?

“For that to happen, we need a social history and approval for that level of funding,” says the worker. “We haven’t had that yet. Now, with these reports, we’re more able to support that application. And that is definitely a plan underway.”

When asked, the worker couldn’t say what date DD’s six-month voluntary placement with CFS expires. “Probably” in the next couple of months, she says.

Roller is curious (as we maybe all should be about a child in care): Why doesn’t CFS already have a social history on DD?

The worker’s answer is evasive. “In order to apply for locked facility… we have to be able to support it by behaviours,” she says.

The hearing is then stood down for a few minutes. A behind-the-scenes discussion results in DD pleading guilty to a handful of breaches and being sentenced to a few extra hours of community service work.

In his sentencing submissions, the Crown sounds unconvinced anything will change. Some of DD’s issues are systemic, he says. Candidly, some are also his as an individual, he says.

“Best we can hope is he goes on his way and starts to listen to his probation officer.”

DD’s defence lawyer tells Roller the youth is confused and upset at the fact he’s not allowed to be at home with his family and that’s why he flees from his hotel placements.

“He thinks that if he acts out and leaves these shelters they’ll give in and let him go home – that’s not the case,” she says.

By now, he’s spent three weeks of his life in custody. The lawyer questions how it appears the CFS position on finding a proper placement is somewhat incumbent on him, based on what the social worker has said. It shouldn’t be “all on him” to prove his way out of the emergency hotel shelter situation, the lawyer says.

“It’s turning out to be… a vicious, vicious cycle.”

In addressing DD, Roller seemed to agree.

“I know that you haven’t had a stable placement since you came into agency care,” she told him. “And I’m convinced that the people who are working with you aren’t talking to each other like we need them to do. We need you to have a team in place to work together and I hope that’s what’s going to happen going forward. Because we need your behaviour to improve,” she said.

She also reminded him of his CFS worker’s implicit promise to the court to get moving on finding a more palatable solution for him, to find him at least a place, “where you can unpack.”

“And she’s going to do all of that right away because we don’t want you bouncing around,” said Roller.

———————–

If you’re still with me by now, you’ll have perhaps noted some of the questions DD’s case — but one of many hundreds of youth court cases in Manitoba — raises.

At the top of my mind are:

  • How can a child be taken into agency care and the agency doesn’t have a “social history” on him months into his stay?
  • What exactly is a “social history?” It was clear his parents called in CFS, so why don’t they have such information at hand?
  • How can a social worker be subpoenaed into court and not have exact answers (like the date of expiry of DD’s placement agreement) at hand about the case she’s there to talk about?
  • Is a hotel room for a potentially mentally challenged and certainly confused teen boy really the best we can do for him? It personally strikes me as disingenuous to say it’s somewhat incumbent on DD, given the circumstances as presented, to “earn” his way out of the emergency shelter system. If it’s the case that it is, then isn’t that a problem? It strikes me DD was stopped into care by way of a voluntary agreement with no case planning as to what to do with him once he was there.
  • What prevented the two systems from “talking” to each other in this case and perhaps finding a better — or at least more expedient — outcome here? Resources? Stubbornness?

We can say “justice” has been served in the sense that a sentence was meted out, but I think we all know it wasn’t here. I fully expect to see DD back on the court docket in the coming months.

There’s many, many more questions, obviously. Finding answers without taking a long and focused look will be impossible.

The “vicious, vicious cycle” will continue until there’s pressure enough to end it.

-30-

Short Shots: (Nearly) disappearing repeat breachers

What to do with people who routinely breach their probation orders?

It’s the question that loomed in the air in Provincial Court today as Judge Rocky Pollack dealt with an accused who had amassed a staggering 41 breaches of probation over the last few years.

He has an alcohol problem. He dislikes authority. It’s pretty clear he doesn’t care if some cop or a judge tells him to behave.

But nonetheless, our courts must still pass a sentence.

I write this not to belabour this man’s case. Booze is his problem. He knows it. His high-risk probation officer knows it. Until he deals with it, not much will change.

I am writing this because Judge Pollack mentioned how a sentencing decision given to him in the case, one crafted in April by colleague Judge Don Slough really grabbed him.

Pollack called it “one of the best sentencing decisions I have ever read.”

The comment peaked my curiosity, so I sought it out today.

Slough’s reasons in Janelle Francois’s case were pretty well on point with the case Pollack was dealing with — more than a dozen breaches in a short amount of time, which netted her “short shots” in jail meant to arrest her breaching behaviour. But they didn’t, apparently work. It got Slough wondering why this is.

From his decision (presented in full below):

People like Ms. Francois form a significant  portion of the individuals appearing in Canadian courts.  The Adult Court Criminal Survey, Canadian Centre for  Judicial Statistics, Statistics Canada 2011: indicates that 21 percent of all cases in adult court are administration of justice offences. Administration of justice offences  include failure to appear in court, unlawfully at large,  failure to comply with a court order, and breach of  probation. Nor is the use of short incarceratory sentences in response to these offences unusual.

In Canada, 55 percent of all custodial sentences are 30 days or less. Sentences of six months or less comprise 80.4 percent of all custodial sentences imposed upon men and 91.2 percent of all sentences imposed on women: Adult Criminal Court Survey, Canadian Centre for Judicial Statistics, Statistics  Canada 2011.  While these individuals form a significant  portion of the workload of the criminal justice system, in many ways they are virtually invisible. Short sentence  rarely attract appellate review. Instead, accused like Ms.  Francois are part of a group of individuals who are  constantly in and out of remand centres and jails.

The crux of Slough’s reasons, to me, appeared to be this: Six months or less isn’t enough time to let any in-custody rehabilitation (like anger management or alcohol-programming) take shape, if not get off the ground at all. 

So what’s the use, then? If jail isn’t a deterrent to keep people out of jail from fear of being in jail, and their time in jail isn’t enough to do much good to address the underlying behaviour which put them there in the first place — aren’t we just throwing good money after bad?

Remember — at $174 a day, the province will spend $15,660 in taxpayer dollars to keep one person behind bars for a 90-day stint, not inclusive of other costs [police, courts or probation].

So I ask — what’s the answer?

Gladue: ‘the why’ in 156 words

It beguiles. It combozzles. It sometimes enrages.

But the fact of the matter is this: It’s the law of the land that aboriginal offenders are to receive special consideration when being sentenced.

(Note, please, the intentional use of the word *consideration* — which, loosely, means to ‘think about’ in this context, not to confer a benefit, reward, or as Gladue is often dumbed down to: ‘A race-based discount.’

“Gladue” principles and the application of same in criminal courts are hands down one of the most controversial features of the Canadian justice system in terms of public acceptance and understanding of why they exist.

But I won’t get into all that today. I just finally in the last few weeks came across a Manitoba judge who explains what this all means so clearly and concisely — in 156 words no less —  that I wanted to share it as a reference to readers, other interested parties and to myself for the future.

In the last two weeks, I’ve heard provincial court Judge Dale Schille use variants of the same explanation when giving reasons on sentencing.

Part of what Schille says it is a direct lift from the recent fundamental Supreme Court decision in R v. Ipeelee, which goes exactly like this:

“Canadian criminal law is based on the premise that criminal liability only follows from voluntary conduct. Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options for positive development. While this rarely — if ever — attains a level where one could properly say that their actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moral culpability.”

It appears from this point, the judge puts his own stamp on the issue:

“It is clear from that articulation that 718.2(e) seeks to recognize that there exists residual effects stemming from the historical mistreatment of the aboriginal population. The reality is that that treatment has disadvantaged aboriginal people in a number of ways including: decreased levels of education, lessened opportunities for employment, higher frequencies of violence and substance abuse when compared to the non-aboriginal population. All of these factors impact or detract from the moral blameworthiness of the aboriginal offender.”

When you stop to think about it, it explains a lot of things quite nicely, and in short order.

For your attention.

-30-

[Edit: 7:30 p.m. — minor tweaks, nothing more]

Guilt derived by ‘force,’ and the abolition of preliminary inquiries

“Progressive Conservative justice critic Reg Helwer said Swan could reduce the number of inmates on remand further by eliminating preliminary hearings and forcing more plea bargains. “Is it necessary to have a preliminary hearing in any case?” Helwer said.” — Jails looking less crowded, WFP article by Bruce Owen, Sept. 20, 2013

—————

I cannot tell you how many times a case has folded at or soon after prelim because the evidence was so weak. And better the weak cases get dumped after a 5 day prelim as opposed to a month long trial.” — Winnipeg criminal defence lawyer

Let’s start today by offering the simple answer to Mr. Helwer’s question.

Yes. Preliminary hearings are necessary.

As a newspaper reporter who covers courts, it chagrins me to some degree that I typed that.

But as a member of the public interested in seeing we have the fairest criminal justice system possible, however, I see why “prelims” (as they’re often dubbed), are 100 per cent necessary.

I won’t belabour my first point: prelims are viewed as a pain for the media because they’re largely — but not totally — off-limits for publication. When you want to tell people about what’s happening and why in their court system, sitting in a prelim is seldom the way to accomplish this. Whatever. It’s just a professional reality at the end of the day.

The justice system doesn’t exist for the media’s benefit.

As a member of the general Canadian citizenry, however, I’m heartened prelims exist. They’re a necessary fail-safe in serious cases where the stakes are high [such as homicides and major assaults of all various types].

It’s an unpopular sentiment, admittedly, but the fact is, the more procedural protections we can offer an accused person facing serious jeopardy to test their case, the better chance we’ll be able to weed out wrongful or unjust convictions. Nobody wants to see those.

Over the course of about 20 years in several common-law countries, preliminary inquiries or “committal hearings” have been the whipping boy for justice reformers, identified by them as a key source of court inefficiency and waste. In some jurisdictions, their use has been curtailed.

But looking at the Manitoba situation in particular, I can’t see how eliminating the prelim process would help speed up the course of criminal justice. In fact, I believe it would actually slow it down and simply clog superior courts with addition pre-trial motions and other legal procedural issues. (** See below for a good example of this **).

Contrary to what Mr. Helwer suggests, Taking away a suspect’s option of testing the Crown’s evidence won’t strong-arm them into pleading guilty, even if deals are proffered.

More importantly, who wants any part of a system where people are denied — however tacitly — their fundamental right to have their day in court if they so choose?

No judge would even accept a person’s plea if they caught a whiff that it was being forced in any way.

The often-heard complaints about preliminary inquiries seem to go like this, and it’s not an exhaustive list:

The bar the Crown must clear is low to move the case on to trial in superior court. All it needs to show is that evidence exists on which a reasonable jury, properly instructed, could find an accused person guilty. Some wonder why this step is needed at all, given that a trial proper appears to accomplish this task just nicely, thanks.

I won’t pretend to be a legal expert on the matter, but just this week, I was reminded of the importance of prelims in a case I’m prohibited yet from spilling the full details of.

In essence, a person accused of a very serious crime was not committed to stand trial for manslaughter. The Crown fought that provincial court judge’s decision to quash the charge and lost.

The judge’s reasons to not put the case forward to trial were complex and technical. And after thinking about it over many days now, it was the right decision to make, in my opinion.

Putting it in front of a jury, with respect, would likely result in a misapprehension of the law and could have resulted in a wrongful conviction. It’s very easy to opine that the accused skated on a technicality, but that’s simply not the case.

Score one for the preliminary hearing, in my books. More on this when it all resolves.

If I were to offer an honest complaint about preliminary hearings, I would say it revolves around a tactic used by the defence in domestic violence cases.

Basically: it’s not uncommon to see a case set down for a prelim just to see if the complainant will show up to testify. Many, many such cases fall apart at this stage because they don’t.

In the end, though, that’s not a fault of the process, but speaks to larger societal issues.

The defence has a job to do, just as the system itself does. Preliminary inquiries are an important part of that work.

———————

One example of how taking away an accused’s prelim will just trigger more pre-trial motions: Earlier this year, Manitoba Justice directly indicted Terrence Hanska to trial in the Court of Queen’s Bench on two attempted murder and other charges relating to separate incidents about two hours apart in May 2012. In response, Hanska is now battling to see the two incidents severed off into two separate trials. Reasons include how he believes allowing the Crown to lead evidence of the second incident would amount to “bad character evidence” and prejudice his fair-trial rights. He may have a point, may not. The point is: taking away a prelim for Hanska by directly indicting him likely won’t result in the case being heard any sooner. We’ll see.

Manitoba youth justice and mental health: ‘Life-altering verdict,’ or just par for the course?

Screen Shot 2013-03-27 at 10.56.14 PMThere’s possibly fewer things as despairing in our youth justice system than witnessing a young future handed over to an overtaxed and overstressed mental health system to figure out.

Thankfully, it happens relatively rarely, but it did happen this week to J.

He’s a now 18-year-old man who, despite signs of some hope in recent months, was deemed unfit to stand trial on some [relatively minor] charges and turned over to await disposition as to his treatment by the Criminal Code Review Board.

As his lawyer put it: “It is a life-altering verdict to him.” And it’s true.

Will he end up in a hospital or on the street? It’s unknown. Winnipeg Child and Family Services is involved and keen to find him assistance wherever it can, but an agency representative was noticeably absent at the Manitoba Youth Centre this week when Judge Sandra Chapman found J unfit and ordered him over to the CCRB. It was surprising because CFS had attended court hearings in the past out of a sincere wish to see him get help, Chapman was told.

J first came to the attention of police and the system on Jan. 9, 2012, when he and his mother got into a fight inside their home.

High on drugs, he became enraged to the point of threatening her. “I don’t care if you guys call the cops — I’ll take you guys all out and kill you,” J said, just before retreating to his bedroom.

Police arrive at the mom’s bidding and find him in his bedroom, high on the anxiety drug Restoril, mellow from marijuana and packing a small kitchen knife. He’s taken to the Manitoba Youth Centre. He gets bail.

Fast forward to Jan. 27, 2013: Police find him at 1:20 a.m. reeking of booze on McPhillips Street. Again, he’s a direct lockup at the MYC, then bailed out shortly after.

The final shot at release he saw ended around 11:50 p.m. March 3, while he’s now staying at a CFS “shelter” which also doubles as a hotel on Pembina Highway.

J became so angry with his CFS watcher he began assaulting him, then proceeded to take a chair outside and hurl it at the social worker’s car several times. Nothing was broken and the worker was uninjured. He was again detained at the youth centre.

And then the psychological assessments begin. Over the coming months, J would have three mental-health assessments conducted by doctors, two of which were tendered in court. The third was excluded because it didn’t deal with mental fitness-related issues.

After the first, it was considered he was “just being difficult,” and a “defiant young man.” One doctor found he “could be fit” at some time, but when, exactly, was naturally unknown. Time marched on.

Months later, J’s advocate told Chapman this week, it was clear the young man was “decompensating” — deteriorating — possibly because he was being held in a jail and had been there for a couple of months.

As one doctor put it: It was “no longer clear where the boundary line was between provocative behaviour (what the earlier doctor saw) and psychosis.”

In one example, the forensic psychiatrist said J would “stare (him) down.” The belief was J was now “presently actively psychotic” — a kid of 17 at that point who admitted he thought he could tolerate life inside Lakewood, the maximum-security youth facility in Manitoba.

There, inmates receive an hour of recreational time each day. The rest is spent in a locked room and under constant observation.

J said ‘no’ many, many times, when Chapman asked him the following: Do you know what’s happening here? Do you know what your lawyer is? Do you know what my role is?

Everyone — Crown, defence and Chapman — expressed reluctance at putting such a young man into “the system” [their words] on such minor charges. But there was little else to do.

Everyone involved hopes he’ll find his way to a hospital and adequate treatment from doctors. He was to be released as soon as practicable from the MYC.

But given some of the stories that have come to light about the mental health regime in Manitoba (and Canada, to be honest) of late, I can’t help but wonder if J is now simply to be cut adrift, possibly lost for good. Maybe institutionalized, possibly to be released and wind up on the street.

I note grimly that immediately, the court ordered the review board was to receive an extension of the time it is required to conduct a disposition hearing for J — to 90 from 45 days.

The ink’s not even dry on the paperwork, but already exceptions are being made.

And they’re not to accommodate J, but to accommodate the system. And it’s sad.

—————–

Also sad — and something I wasn’t aware of, is how two cells at the Manitoba Youth Centre are deemed “psychiatric beds,” a reality J’s lawyer called “completely unacceptable.”

What she meant, I believe: Jails are for criminals, suspected and otherwise.

“Psychiatric beds” are for sick people who need treatment, not incarceration.

As well, two beds at the above-mentioned Lakewood max facility are also designated for psychiatric-related inmates, court heard.

This was a situation described as, “not ideal.”

I’ll say.

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Murder most foul and we don’t care

(The multi-plex where gang membersHenderson and Baptiste were killed on Jan 31, 2009)
(The multi-plex where gang membersHenderson and Baptiste were killed on Jan 31, 2009)

 

[EDIT: A slightly-revised version of this post appeared in the Winnipeg Free Press Sunday edition on Sept. 15. Below is the original version].

I keep wondering why more folk in the general public don’t appear to care all too much that two young aboriginal men were brutally cut down in the prime of their lives, killed brutally inside a shabby suite in a West End multiplex.

Yes, Dennis Baptiste and Jessie Henderson were members of a feared and loathed Winnipeg street gang, the Mad Cowz.

But for many young aboriginal men in a city where baby-faced teens somehow can get their hands on a .357 Magnum and carry it about with seeming impunity to kill over ridiculous notions of revenge, gang membership or association is to people in some particular circumstances, more akin to a Scouts club or after-school sports program might be for semi-affluent kids who live in Winnipeg’s sprawling suburbs.

And therein lies the rub of it. Our ability to look the other way or shrug our shoulders at the deaths of these men speaks to a fundamentally larger problem our society suffers from.

That being: a shocking and profound inability to empathize very much any more. That’s my gut feeling. And I trust my gut.

Live by the sword, die by the sword,” one person replied to me on Twitter tonight when I expressed my angst on this topic.

I celebrate every time one or more of these drug dealer/gangsters gets snuffed,” said another.

Bullshit, I say to them here in reply. These are the answers of cowards.

Dismiss out of hand what you refuse to even try to understand.

Eye for an eye is an exercise in mental gymnastics which will take us nowhere.

Regardless of anything: These two 23-year-old were living, breathing people, goddammit. For example: Baptiste had two young children. He had a long-time partner who cared about him. He lived, he breathed.

And dear God, how he bled.

I never met either of these men. And I’m pretty much sure they would have spat on me — or at least eyed me with extreme suspicion — if I had ever had the courage to walk up and say hello.

That’s not the point. The point is that between my cowardice and what I assume would be their disdain are symptoms of a sickness.

Just as street gangs are symptoms of a larger sickness still — a generational, trickle-down illness of poverty, rampant unfairness, inequality and racism.

I deplore senseless violence. I detest gangs and their uber-profitable, miserable businesses of drug-and-human trafficking, just to name two of the major income streams.

But to the degree an outsider can, I understand why the gangs exist and how they persist.  And I know we don’t (or is it can’t or won’t?) do nearly enough as a society to be able to convince gang members to want to get out, that something better is waiting on the other side.

I find it very, very difficult to simply say, ‘meh‘ to a life cut senselessly, brutally, criminally short.

But that’s what I see happening when it comes to the overall public reaction to the murder trial — a process trying to find some justice for Henderson and Baptiste.

Media coverage, aside from the daily newspapers, has been scant, despite wide-spread coverage of their deaths when they were discovered.

It makes no sense to me how there’s little follow-through.

But I won’t get too deep into that, because we don’t always know what’s going on behind the scenes. This brings me to what I wanted to point out. My appreciation.

I don’t know if the Winnipeg police have it right in charging Ken Roulette – reportedly a friend of these men — with the deaths.

There are things about this case I’ve seen so far that don’t quite add up to me, at least just yet.

But in the end, it’s not up to me, or you, to decide. In this way, we’re just observers to the work six men and six women are now charged with doing.

But what I do know is that homicide investigators and the two seasoned Crown prosecutors now putting in the case didn’t have the choice of saying, ‘Meh,’ and shrugging their shoulders when called on to try and bring some resolution to this awful matter.

What I do know is that two of Winnipeg’s best defence lawyers don’t appear to be conceding one inch of territory to their state adversaries — another hallmark of criminal-legal seriousness. The stakes are huge here.

There’s an aura to the proceedings as a whole which I can only describe as spine-tingling. It hangs over the courtroom like a pregnant dark cloud.

To me, it’s right and just that this feeling persists. The awfulness of what happened here can’t be brushed aside, despite my fear it will.

Ask yourself this. If it had been two 23-year-old white kids from Charleswood or St. Vital who were killed in this fashion — what would the interest be then?

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Falling prey to novelty: Winnipeg Police Board part ii

Lest this be perceived as a personal criticism of Winnipeg Police Board Chair Coun. Scott Fielding, it’s not.

It is, however, a critique of his motion (sadly, the very first of our new police board to foist upon the WPS) which now ties up police time to study and report back on the idea that city police officers wearing  body cameras would be a step forward for public safety and foster greater accountability.

First, this isn’t a new idea. For years, $1-million taxpayer bucks has been earmarked in the city’s 2016 projected capital budget for this proposal. Why it’s suddenly necessary to bring forward now, who knows? More on this below.

The upside, we’re told, is police uniform cameras would lead to fewer accusations against police, and secure iron-clad evidence to be used in court against suspects, leading to speedier convictions.

I agree with Chief Devon Clunis when he says the actual amount of legitimate officer-misconduct complaints are pretty low in Winnipeg.

Therefore, the benefit of blowing a million bucks on videotaping arrests as an accountability seems a waste.

And the thing is, it’s not just a million bucks.

That may be the projected initial cost of equipping 800 officers in the scheme, but the better, more practical, question to ask is: OK. We have all this great video footage. Now what?

Clunis estimated the true cost of cops wearing cameras would be double or triple the $1-million price tag.

I’d be willing to guess it may be even more than that. It’s not just as simple as a cop coming off shift and dropping off a flash card at the desk and saying. ‘see ya.’

Should that footage be requested for court purposes, it would require someone to review, annotate and transcribe it for it to be disclosed and used in a legally-appropriate manner.

One conservatively staffed 10-hour shift of 54 general patrol officers would equal [assuming the whole shift is recorded] is 540 hours of video. At three shifts a day that’s 1,620 hours of video a day to be catalogued, maintained and preserved by somebody for some potential eventual use.

Who does that work and at what cost remains the huge unanswered question. How Charter and privacy rights are affected is also an unknown at this point.

Second, video evidence, in my experience, seldom speeds up the court process.

Instead, it becomes another legitimate avenue for the defence to carefully assess and weigh a case, leading to delay. In the recent Pizza Hotline murder of Gerald Crayford, for example, there was video evidence from in the store where it happened.

From Judge Rocky Pollack’s recent decision in the D.S. case [emphasis mine].

With clarity, the store security camera recorded D.V.J.S. walking in first, hiding his face with a black toque and a bandanna.  Over his shoulder, requiring two hands to hold it, was an axe.  Mr. B… was wearing a hood and he was carrying a knife.  They came in quickly, demanding to know where the money was.  When Mr. Passawe ran toward the rear, the youths ran out the front door, crossed the street to a hospital and called 911 to report the robbery.

[11]        D.V.J.S. and Mr. B…. caught Mr. Passawe before he could escape.  D.V.J.S. held the axe in a threatening manner and demanded that the man open the till.  He went through his pockets and took his phone, headphones, a bank card and some change.  Then the robbers moved toward the front of the store.

[12]        Mr. Passawe was able to run out through the back door and hide.  Heading toward the front of the store, D.V.J.S. came upon Mr. Crayford and demanded his phone.  Mr. Crayford struggled with him, trying to get the axe.  He was able to pull the toque off during that struggle, during which he was punched by D.V.J.S.  When the attacker cried out for help, Mr. B… provided help by pulling Mr. Crayford off D.V.J.S.  That is when D.V.J.S. struck Mr. Crayford with the axe, raised it again and hit him a second time.  Both blows were with the blunt end of the axe to Mr. Crayford’s head.

[13]        After that, neither gave Mr. Crayford so much as a glance as they struggled with the cash register.  Because they were unable to get it to open, they just picked it up and left with it.

Crayford was murdered in May 2011. D.S.’ case wasn’t finalized till this July, despite the availability of video evidence. An adult co-accused has yet to face trial or deal with his matter.

The other major issue is: How can it be that at a time where the WPS is facing budget cuts that City Hall would be at all still willing to spend a million bucks on this?

More importantly, how can the police board countenance the lost police time and resources that must now be spent examining the proposal and crafting a report for their consideration?

Fielding is right when he says innovation is key if we’re to find greater efficiencies. I totally agree.

But there’s innovation backed by some kind of necessary purpose, and innovation for novelty’s sake or to score a few headlines.

This cop camera proposal falls directly in the latter camp.

If this board is to succeed, it must learn to not fall prey to go-nowhere distractions like this one will end up being.

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Your Winnipeg Police Board, part 1

Winnipeg’s shiny new police board met at city hall today, for what really was its first substantive gathering.

This post is the first of two just noting a few things that likely won’t make the news per se about today’s event.

As with most City Hall meetings, delegations can apply to speak. Today, David Sanders gave a lengthy and laudable presentation to the board.

Laudable, first, because he took the time to actually read the board’s draft policies and procedures in detail and point to a few items of concern.

The presentation, which he kindly sent to me afterwards, is below should you want to read it. And you should.

Among his concerns of note to the public are:

  • The tenor and stricture of the confidentiality agreement members have agreed to as a requirement to sit on the board [posted below in full].  It appears to present a number of challenges for board members in terms of whether they’re ever allowed to say anything, about anything, in relation to board business.

Screen Shot 2013-09-06 at 4.19.25 PM

 

 

 

 

 

This requires a correction. He actually points out the agreement is like one drafted by the city for a consultant being hired to do work.

“The second clause of the preamble is worded so as to muzzle the board members completely, and should be changed …”

  • Then there’s the whole issue of the board having separate sub-committees for finance and governance (Policy 3.8).

The draft policy manual appears to contain no provisions for these sub-boards — which will do important work — to have public oversight and meetings the public could attend.

Look folks, we’ve waited a good long time to have a police oversight body in Winnipeg that’s not either LERA or some watered-down city committee which was more informative and inquisitive about snowmobile bans than where our $240-million a year in policing dollars are going.

It’s solely my opinion — and it’s surely early days yet — but for our police board to not enjoy a great amount of honest and respectable interest and debate advanced by the public at large would be a major missed opportunity.

Part two of this post will focus on some thoughts and perceptions about the board, the meeting and its players.

Some quick, sad, math

Last weekend, I wrote about chronic offender/public nuisance Perry Antoine, his release from prison and his upcoming fight with the province over the peace bond justice officials want to put him on for the next two years to try and keep him in check.

The background is all in the story. And it’s quite possible that now, at age 52 and confined largely to a wheelchair, Mr. Antoine won’t reoffend again.

But today, it occurred to me to look more closely at his record since 1979, since he became an adult, and do some math.

In that time, his record notates he’s done 5,746 days behind bars (just shy of 16 years) since ’79.

Using the recently cited provincial inmate housing costs of $174 a day to keep him in custody, that equals:

 $1,005,550 — simply to keep him in jail in that time. (This is low-balled. See *note below on why — factoring in federal prison costs would bring us to a staggering $1,610,109).

That’s not counting the cost to the taxpayer for police to arrest and process him, nor the cost to prosecute or judge him.

That’s simply to keep him detained.

More importantly, that doesn’t count the cost of probation services.

Since 1979, he’s been given the equivalent of 16.5 years worth of probation across various orders.

(Let’s say for the sake of argument he had one appointment a week at an arbitrary cost of $75 for 858 weeks. that’s $64,350).

I couldn’t tell you what the actual value of that in terms of dollars would be, but probation officers — especially the ones working the highest-risk offenders — don’t come cheap. The actual cost is much, much higher, no doubt.

Going forward, there will be more probation costs incurred as the Criminal Organization High Risk Offenders Unit (COHROU) are the Corrections unit tasked with hawking him now that he’s free.

Neither does it count the cost of storing Mr. Antoine in the drunk tank, nor the hospital visits or community health services.

Nor the victim services.

I’d peg the dollar cost to society of dealing with Mr. Antoine at well over $2 million since he turned 18.

While that’s huge, especially since he’s just one chronic offender in a province with many of them, the greater concern to me is the loss of human potential. What a seeming waste of a precious lifetime.

The other thorny issue is how despite our ‘investment’ over the years in Mr. Antoine’s — and society’s — safety and well-being, not much seems to have changed for that.

Something to ponder.

-30-

* naturally, he’d be earning parole at some points along the way in both provincial and federal systems. But any decrease in time spent would be counterbalanced by the fact it costs double to house an inmate in the federal system [where he recently served each and every day of an 8-year bit] That cost, Stats Can says, is $357 a day (2010-11 data). Factoring in that figure, it’s $1,610,109. Trust me, I’m a journalist.

[EDIT to correct date of Stats Can data]