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].
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.
(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.
Or better yet — are the sentencing tools judges and justices have to work with good enough?
Are the options of jail, probation, house arrest and fines (generally, these are the big four) enough to deter offenders (convicted or would-be) from crime?
Let’s look at the recent case of Crystal Audy, a 29-year-old First Nations woman who lives on reserve just outside of Swan River.
Last April, Audy was hammered on booze and dope and rolled a vehicle. One passenger suffered a broken jaw, the other a range of injuries that will likely affect her for the rest of her life.
From Judge Don Slough’s Jan. 19 decision:
[The victim]suffered a broken arm, paralysis to her right side and extensive bruising as a result of the accident. Four months later, [The victim] still uses a cane and requires assistance in her home in terms of bathing. Her treatment is on-going and it sounds as if she will never return to her pre-offence condition.
Audy — who has no criminal record — blew .14 at the low range when tested.
When asked why she drove she responded “I was the least drunk of everyone so I had to drive,” an opinion shared by another passenger. At no point in her life had Ms. Audy possessed a driver’s licence.
The judge then turns to Audy’s background:
The Pre-Sentence Report which included a valuable “Gladue Report” describes Ms. Audy as the product of a small, remote and impoverished First Nation community with high rates of unemployment and crime. She is responsible for the care of two young children and subsists on Band assistance. The community has limited recreational and therapeutic resources. Ms. Audy advised the probation officer she frequently saw violence and substance abuse within her own community. Her parents were the product of the residential school system. The offender’s mother in particular suffered as a result and due to family addiction issues Ms. Audy was raised in foster homes and by her grandmother. The offender advises that she was victimized as a child. She has a very limited work history. Ms. Audy advised the probation officer she was not currently abusing alcohol but that until very recently she used marijuana on a frequent basis. Notwithstanding the offender’s lack of a prior record the Pre-Sentence Report states that using the current assessment tool:
“Ms. Audy was assessed as high risk to re-offend. The significant factors for this person are Employment/Education, Alcohol/Drug Problem and Leisure/Recreation. Other factors that may have an impact on this case are Ms. Audy’s own victimization issues and her problem with depression”.
He then considers the appropriate sentence, and his range of options are limited by the fact conditional sentences are no longer available for impaired driving cause bodily harm.
There are a number of factors that demand consideration of an incarceratory sentence. The circumstances of the offence are serious and the bodily harm caused by the accused appears to be permanent. In addition, my experience sitting in Swan River suggests that drinking and driving is a serious issue in this community and the communities in the Swan River region. This includes the First Nation community where Ms. Audy resides. The Pre-Sentence Report indicates members of that First Nation community are aware of the impact of this offence on the victims. It is important that the Court provide a strong response to this offence.
It is difficult to gauge with precision the weight to give to Parliament’s decision to eliminate the availability of a Conditional Sentence Order for this offence. As Ms. Audy’s counsel has pointed out, the amendments do not preclude the imposition of what would normally be considered a less onerous sentence such as a fine and probation. That being said, it is difficult to believe that Parliament’s intention was to encourage more lenient sentences for a serious personal injury offence.
As referenced earlier the R.C.M.P. suggested that at the time of the incident there was very little evidence of remorse. However, it has been my observation that the offender’s demeanor and her statements to the Court demonstrate a high degree of remorse.
In considering whether to impose a period of incarceration, I must consider whether or not an intermittent sentence would provide the denunciation and deterrence this offence warrants. It is my understanding that for women in Manitoba all intermittent sentences are served at the Portage Women’s Jail an overcrowded and decrepit 115-year-old facility. A new and larger institution will be opening in the relatively near future in Headingley.
For this offender to serve an intermittent sentence she would have to travel approximately four hours to Portage la Prairie. Given she has no car or driver’s licence and according to the Pre-Sentence Report is on Band assistance the logistics and expense involved make it virtually impossible for Ms. Audy to serve an intermittent sentence.
Due to these limitations, the judge’s hands, essentially, are tied. Sending Audy to jail can’t, or better yet, won’t work in terms of balancing the set out sentencing principles of denunciation, deterrence and rehabilitation.
In the end, Slough rules to fine her and put her on probation.
I am ordering that Ms. Audy pay a fine of $1,000 within 12 months and be placed on supervised probation for 18 months.
The conditions of that probation include an absolute curfew (essentially house arrest similar to conditional sentence without the true threat of that being converted to real jail) and community service work in the amount of 120 hours. He also adds a two-year-driving prohibition — IMO a pointless measure given she’s never had a licence and yet was driving anyway. It’s Swan River. I’m sure this happens a lot.
Jail, probation, fine. These ultimately were the options.
On one hand, one could be questioning the sentence: that somehow not sending Audy to jail lets her off the hook for injuring two people, one very badly.
On the other, one sees the pointlessness of jailing her. It won’t change a thing for her and likely won’t “teach her a lesson” as the hang em’ high crowd would crow.
But clearly, fining a woman — a young mother — on social assistance and allowing her to stay at home could be equally perceived as too lenient.
My question — to get to it an a long-winded way, is: Are there other options judges should have to deal with similar cases?
So-called sentencing circles are one thing, but that’s old news. What else?
Public shaming? Hard to do in a community where there’s virtually no media to cover case outcomes.
But I’m more interested in innovation and new ideas. The U.S. experience tells us that locking people up for longer and longer terms isn’t sustainable.
And the Canadian experience is that perceptions the justice system is soft on criminals is deteriorating public faith in the justice system.
The Audy case is emblematic of that. If this decision were to go into an MSM newspaper or broadcast, I can guarantee there would be gnashing of teeth and the usual call to arms for harsher this and that.
Make no mistake: violent criminals need to be separated from society for the greater good of living in peace.
But in the cases like the Crystal Audys of the world, we should be thinking of giving judges more creative ways to punish people for their bad acts.