Court of Appeal to Manitoba Corrections: Gladue ‘lip service’ comes at a cost

(Winnipeg’s Old Law Courts Building)

A single sentence buried deep in a lengthy written decision from Manitoba’s Court of Appeal contains the words many in the city’s legal community — including, no doubt, many judges — have been eagerly waiting to hear from our top court.

They’re worth reading a few times over to soak in their gravity:

“There is presently in this province either a concerning disregard or a systemic impossibility to provide what is required for judges to comply with the dictates of the Supreme Court.”  

Justice Michel Monnin wrote the above in the court’s unanimous decision to slash in half the 10-year-long sentence Queen’s Bench Justice Shane Perlmutter handed to a 23-year-old rapist who sexually assaulted an unconscious woman in her northern Manitoba home in 2010.

Monnin’s cutting words are aimed squarely at Manitoba Corrections, the provincial justice agency responsible for preparing pre-sentencing/Gladue reports for judges, a task its been doing for many years now.

Gladue reports are written to help inform judges about the particular circumstances of individual aboriginal offenders. They look at the community from which an aboriginal person hails from, their family history and what factors may have led them into contact with the criminal justice system.

The overall intent of the reports is to help judges satisfy their legal requirement (enshrined in s. 718.2(e) of the Criminal Code) to consider “all available sanctions other than imprisonment that are reasonable in the circumstances.”

These “should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders,” the law says.

The intent of the Criminal Code provision — put in place in the 90s and often called the “Gladue” section — was to try and address the vast over-representation of aboriginal offenders in Canada’s jails. (Article spelling this out is here)

Roughly 74 per cent of adult inmates in Manitoba jails in 2011 were aboriginal, according to the latest Stats Can numbers.

A shameful total that’s climbed in each of the the last five years despite the intent of the law of the land.

The wake of Ipeelee

Earlier this year, a shockwave went through Manitoba’s courts, prompted by the Supreme Court’s decision in Ipeelee.

Manitoba judges started loudly demanding Gladue-based information, and demanding proper waivers if the offender didn’t wish to pursue a report (they take weeks and weeks to prepare).

The high court in Ottawa had basically issued an edict: Criminal court judges of all stripes weren’t doing their jobs to look long and hard at Gladue factors each and every time they sentence an aboriginal offender. If they didn’t start doing so, the top court implied, judges could expect to start seeing appellate courts retooling their sentences.

That’s what happened in the above rape case.

It is apparent from Monnin’s ruling that the sentencing judge got a poorly/hastily written Gladue report from Manitoba Corrections that appeared to contain ‘cut and pasted’ material from other reports — hardly the individualized effort the law requires. The law, the Supreme Court says, is not to provide a “race-based discount” on sentencing, but to ensure the sentences handed out to aboriginal offenders were made in light of the necessary context.

“The judge had at his disposal a pre-sentence report that also purported to address the Gladue factors that a judge must consider when imposing a sentence on a person of aboriginal descent,” Monnin says.

“I say purported, because the only difference that I can see between the report that was presented to the judge and a commonly-prepared pre-sentence report was that it contained a short history of the accused’s home community and the general loss of culture and identity that has afflicted aboriginal communities generally. That portion of the report is a near mirror image of a report that was submitted [in another case.] …

… Furthermore, although the report states that it “will pay particular attention to the unique circumstances of the aforementioned aboriginal individual,” I remain hard-pressed to understand how it does so, or how it could have been helpful to the judge, or any other judge for that matter, to discharge his obligation to consider the Gladue principles in crafting an appropriate sentence of this accused. 

The report, without wanting to criticize the individual who prepared it, but rather the system that permits it, reflects the problems raised by [Provincial Court Judge Fed Sandhu in an unrelated case where Sandhu talks of the lack of public confidence and respect for Gladue due to a lack of community-based and other resources to really put some teeth into the law.]

I mentioned above a “shockwave” that went through the courts at the time Ipeelee came down. It was apparent.

The net affect of the renewed focus on Gladue was for lawyers to start requesting more Gladue reports from Corrections.

My understanding of what happened is they were caught totally off guard and are still trying to keep up with the increased Gladue workload — including some totally novel requests from certain judges.  [Side note, the report took weeks to prepare, came back and the judge said he didn’t find it helpful at all in a bail setting.]

The pressure on Corrections to produce Gladue materials has sparked complaints from many lawyers who claim probation officers/report writers are simply doing “cut and paste” jobs [as referenced by Justice Monnin above] that may give the impression Gladue considerations are being given attention, but really, they’re not, in many — but not all — circumstances.

Then, quietly, a quandary developed when an NGO stepped in to fill the void.

A private aboriginal restorative justice agency in Winnipeg, Onashowewin, began writing full and comprehensive Gladue reports for offenders — reports that are repeatedly praised by judges for how informative and well-prepared they are.

Defence lawyers hipped to them in droves, many times forgoing the Corrections reports entirely.

I can’t tell you how many times the agency’s reports were lauded by judges. It’s clear from reading them that a lot of time and effort went into them.

Corrections, I’m told, got in a snit partly because the Onashowewin reports didn’t include any risk-analysis of the offender, as their mixed Gladue/pre-sentence reports do. Fair point.

Corrections won’t just write up a Gladue report without an accompanying pre-sentence report to go along with it.

The end result: Onashowewin, which receives government funding, recently introduced a new policy of charging $500 per offender for their Gladue reports.

Now, Legal Aid Manitoba is apparently balking at the notion of funding the private reports, a veteran defence lawyer said today.

Most, if not all, of the reports are written for indigent offenders depending on public representation to resolve their cases.

So I ask you — one way or another — is the system set up to truly honour the law of the land?

Today, the Court of Appeal said, ‘no, it’s not.’

And until that starts to happen, expect to see more sentences overturned.

[Another side note: for those interested in learning about virtually all the in’s and outs of Gladue, its genesis and future uses in Manitoba should read The University of Manitoba’s tremendous ‘Gladue Handbook’ recently produced by the Faculty of Law. A fascinating and worthy read.].

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Home, home on the range

Milner is the provincial jail where all sentenced MOB (Most Organized Brothers) street gangsters are held, court was told Tuesday.

Everyone — the Manitoba government, youth corrections staff, even the young cold-blooded murderer himself — wants to see him transferred out of the young offenders corrections system and into an adult jail.

Everyone but the killer’s mom, that is.

And possibly provincial court Judge Judith Elliott.

It was a rare proceeding in court Tuesday where the now-18-year-old convicted murderer and confirmed MOB gang member was seeking a transfer from the youth facility he’s currently being housed in and into an adult facility to serve out the remaining years on the custody portion of his seven-year-long youth sentence.

The young man — and he is a man now — is serving the time after stepping forward and pleading guilty to second-degree murder for the “senseless and unprovoked” shooting death of young dad Scott MacGillivray in his own backyard in August 2009. This guy was the one who pulled the trigger.

He and a co-accused (the story link above references him — also MOB) had just committed an armed home invasion down the street from MacGillivray’s North End home when McGillivray encountered the pair trying to ditch the gun.

He’s been locked up at Agassiz Youth Centre, the Manitoba Youth Centre or at various times in lockdown solitary confinement at the Lakewood Correctional Centre for youths since his arrest for the killing.

And now, under section 92 of Canada’s Youth Criminal Justice Act, he’s requested a transfer into the adult system, ostensibly because he’s sick and tired of being surrounded by kids and their juvenile behaviour.

Judge Elliott must determine whether it’s in his best interest to go adult [she doesn’t believe it is] or in the public interest to remove him. He can’t just do it, despite being an adult in law.

His mom, as stated above, opposes the move.

“I don’t agree with him going to an adult facility,” she told Elliott Tuesday. “I don’t want him to … [but] he decided that’s what he wants to do,” she said, adding in adult jail, he won’t be at the receiving end of hugs from relatives who want to see him do better.

Yes, she told him, she understands the kids in juvie get on his nerves, but “there are a lot of adults who can be immature too,” she warned him. “Some of them don’t give a shit either.”

A provincial civil lawyer representing the provincial correctional department wants him out of the youth system too, saying his anger issues present a “real risk” to kids in the system with him, that he poses an “increased likelihood of serious harm” if he stays.

Why, just on Sunday, Elliott was told, there was an incident where an inmate complained of being bruised and battered — an incident described by the killer as “horseplay” apparently gone too far. It’s possible he could face charges from it.

“There’s a propensity for unpredictable violence,” the Crown lawyer said. “We see it being safer … having him transferred to an adult facility.”

As well, the province says, the murderer has exhausted all avenues of rehabilitation programming available to him in the youth system.

But if he is, he’s in for a long wait to get a bed at Milner Ridge, the provincial jail where adult MOB gang members are held, a senior corrections official testified.

MOB members waiting months for transfer

Alan Peacock, a chief correctional officer/manager at the Winnipeg Remand Centre told court that there are currently three MOB members at the downtown facility waiting to get a cell/bed at Milner.

Right now, Peacock says, the MOB range at Milner is double bunked and full. Any prospective additions to the range could wait from a week to six months to get there.

Currently, there are three MOB members in the remand centre on the wait list. One of them has been waiting about 3-4 months to get moved to Milner.

There was little talk of the killer disavowing the gang life. And even if he did, he’d have to prove he’s had two years of non-activity in order to be put in general population.

He can’t dodge his gang label, Peacock said.

“That’s the community he lives in,” said defence lawyer Iain MacNair. “He’s going to continue to be exposed to it … rehabilitation right now does not seem to be progressing at a steady rate at Agassiz (youth jail),” MacNair said.

“We can’t just arbitrarily take a gang label off of somebody,” Peacock told Elliott. Even if Corrections did, inmates in jail “have their own communications grapevine” throughout the adult and youth systems to find out who’s who in the zoo and who’s charged with what, he said.

If the killer is transferred — and Peacock has no stake in the game, really  — he’s likely to spend all his time at the remand centre on 23-hour-a-day segregation with limited access to programming or recreation because there’s no room to put him while keeping he and other inmates safe.

As it is, he was headed back to youth segregation after court Tuesday because of Sunday’s violence.

Peacock was queried about what programming the killer would be able to access in the adult system. He said while he couldn’t really speak for jails where sentenced prisoners are held, there is more offered — if offenders choose to avail themselves of it.

“It all depends on the individual, we can’t force anybody,” said Peacock. “We can identify and recommend,” but can’t force inmates out of their units and into classrooms or workshops.

Is putting someone who’s just 18 on an adult gang range in his best interest?, asked Elliott.

“If somebody wants to get out of a gang, that’s not going to help them,” Peacock said. “You fall under the hierarchy and leadership of that gang,” he said.

Judge unconvinced — maybe she should be?

Elliott, by the end of the hour-long hearing — she herself is a former probation officer — was blunt about having to possibly take him out of the youth system and onto the MOB range at Milner — when and if he can get there.

“I’m certainly not of the view it’s in his best interest to be transferred to Milner Ridge,” she said.

She asked for a youth correctional official from Agassiz Youth Centre be called to testify before her about the young killer’s case in coming weeks before coming to a decision.

All I say is — he’s 18, an adult. If he wants to go there, let him go — especially if he’s in any way interfering with the potential rehabilitation of a young offender in the youth system.

Even the killer conceded if he’s charged for Sunday’s violence, he’ll be charged as an adult and sent packing to the remand centre.

“I’m just stating facts,” he told Elliott, without guile.

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SHAWN LAMB: Where does the buck stop in Manitoba Justice?

(Carolyn Sinclair, one of Lamb’s alleged victims)

After having a couple of days now to be immersed in the information on suspected city serial murderer Shawn Cameron Lamb, there’s still so many more questions than answers.

And it’s not the usual questions eating away at me.

For me, and I admit it’s really gotten under my skin, the number one thing that’s been eating away at my mind is:

Why was Lamb free prior to the full expiry of his 19-month jail sentence (from May 26, 2010).

He served only 13 of the months despite his horrendous record.

But more importantly:

Why was a provincial judge’s order regarding how Lamb’s sentence should be served either totally ignored or at least countermanded by Manitoba Corrections?

It’s a little convoluted, but please bear with me – the context is uber-important.

In January 2009, Lamb got a major break from Judge Wanda Garreck: an 18-month long conditional sentence and three years of probation (supervised) for an attempted robbery of a mom who simply happened to be in the area pushing her baby near where Lamb was smoking crack.

As it’s often touted, a CSO is “a jail sentence” where a criminal is allowed to serve it in the community, usually tied to several stringent conditions which are supposed to be supervised and enforced by a “sentence supervisor” and probation officers.

Breaching CSO conditions is supposed to lead to immediate rearrest and incarceration and the possibility of having the remainder of the CSO terminated and turned into real jail time in a real locked jail.

Some of Lamb’s CSO conditions included: mandatory counselling, mandatory residential rehab, Narcotics and Alcoholics anonymous provisions, 100 hours of community service, no drugs, no drinking, seeking and maintaining employment or schooling, medical or psychiatric treatment as directed.

Most importantly, it included a strict curfew, structured as follows:

First 6 months: Absolute. 24-7 curfew.

Second 6 months: 6 p.m. to 8 a.m.

Third 6 months: 9 p.m. to 7 a.m.

So. Lamb walks out of the Remand that day and roughly a week later is re-involved, or as the Crown put it: “He gets right back to work.”

Lamb swipes a Ford Taurus from a banquet hall and then forges signatures on 9 cheques stolen from inside the vehicle. He’s not arrested right away because police didn’t immediately recognize him on surveillance tapes.

He’s not arrested until April 2009, not until after he’s committed two “opportunistic” violent robberies and admits he’s been using crack while out on his conditional release.

Anyhow, he sits in jail for 13.5 months until that fateful day when Lamb appears before Judge Linda Giesbrecht on May 26, 2010.

She’s told of his horrendous record, the facts of his slew of crimes and given a complete breakdown of how many violent convictions he’s had.

Giesbrecht said Lamb’s rap sheet was “coming very close” to the worst she’d ever seen.

Lamb, when given the opportunity, goes on an extremely lengthy tirade about how he’s changed, the steps he’s taken to correct his life; that he was “doomed to fail” when he was granted the CSO in 2009 because things didn’t immediately fall in place for him as expected.

He’s taken responsibility and doesn’t want to hurt anyone any more, he says.

(Remember, Lamb’s been in front of 45 or more sentencing judges since 1976. He’s old hat at how things work by now.)

A joint recommendation for a sentence is proposed, and accepted for guilty pleas to 16 charges.

The sentence was: 13.5 months of time-served at double time credit (27 months), 19 months going forward, and an order that the remaining months of the previous conditional sentence (Y’know, the one he totally breached within a week or so of being out on it) would not start up again until he was released from jail on the new 19-month term. 

Importantly, the Crown stayed an allegation he breached the conditional sentence order. This is key. The CSO was not converted into jail time.

It was simply suspended — held “in abeyance” is how it was put in court. There was discussion between the lawyers as to whether this was the case, and it was agreed: The clock on the CSO stopped ticking when he was rearrested and was not completed.

In pronouncing Lamb’s sentence, Giesbrecht couldn’t have been more direct as to her wishes.

“It’s clear when you’re released the conditional sentence — whatever’s left of that — starts up, and that will be a considerable restriction on your liberty,” she said. “There’s going to be lots of help for you in the community when you’re released.”

She repeated same a few minutes later:

“That (CSO) will not run while you continue to serve your 19-month sentence … and whatever is remaining (13-14 months) will continue to run after you’re released for your 19-month sentence.”

But it didn’t. The province confirmed as much on Tuesday.

Seemingly adding insult to injury, Lamb — despite his extensive record of giving his middle finger to the law — still got automatic “earned remission,” and had six months lopped off his jail time.

So much for community supervision. So much for Giesbrecht’s ruling.

I asked the province the following prior to writing on this in Wednesday’s Winnipeg Sun.

“Just wondering about that request I asked for on Shawn Lamb’s release date last year?
Also, is there a chance I could please speak with someone in corrections about this case?
Upon his release last year, Lamb was supposed to have completed the remainder of an 18 month conditional sentence handed to him in January 2009 (he was rearrested a few months (after)  it started and held in abayance until his 2010 sentence was complete.
Wondering if that’s the case here.”

Here’s the two sentence response I got:

LAMB was released on June 24, 2011 (including 27 months of remand credit).
On the question of serving out the Conditional sentence order – for all intents and purposes the conditional sentence was satisfied, including the period of incarceration, so it had been served and all conditions and requirements had been met when he was released on June 24, 2011.

My request to speak with an official in corrections was not addressed.

(To be honest, I wasn’t expecting it to be. For the largest department in Manitoba Justice, you strangely seldom hear a scurrying word about their operations.)

Justice Minister Andrew Swan wouldn’t comment when asked about Lamb’s early release, citing the start of the criminal prosecution and ongoing police investigation.

I’d ask you to note how this issue really has nothing, except very tangentially, to do with the murder or sexual assault allegations Lamb now faces.

It does, however, have everything to do with where the buck stops in Manitoba’s justice system.

The only way I can see to put it is like this: A judge’s order regarding how best to sentence Lamb was either disobeyed, ignored or countermanded by corrections officials. 

I don’t know who allows the department to do this.

The public expects that a judge’s decision is final and should be obeyed.

If a Manitoba Justice department doesn’t seem to take judges’ rulings on sentences seriously, why should criminals? Why should you or I?

I expect that a judge’s decision be respected and followed as it was directed.

In this serious case, it wasn’t. We don’t know if Lamb took the mandatory rehab and psychological programming. Did he complete the 100 hours of community service? We don’t know.

We’re not really allowed to know and it’s ridiculous.

And I think we all deserve answers what happened here.

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