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].
When an adult gets pinched for possession of cocaine for the purpose of trafficking, he’s more than likely envisioning prison time as the picture of what his future will look like, for better or for worse.
A juvenile? Not so much.
That’s even when convicted of multiple counts of trafficking an incredibly addictive drug known for its violent spinoffs and contribution to social decay.
That was evident today during a sentencing for a 16-year-old Mad Cowz gang member who pleaded guilty to not one, but two counts of possession for the purpose of trafficking crack since last fall, along with a joyriding charge and several breaches — many of which had to do with his persistence in handing around with other Mad Cowz.
If memory serves, five of the 10 were youths. The teen in question was not one of those picked up in Project Recall.
(The project’s work began in earnest — perhaps co-incidentally, perhaps not — after a Mad Cowz-linked fatal shooting of a rival B-Side gang member in a late-night restaurant in February.)
In any event: the teen sentenced today has been out of custody on bail for all but the last few weeks.
In one trafficking charge, he was nabbed Oct. 28 by eagle-eyed cops on Ellice avenue with a garbage bag with 27 rocks of crack inside it after the youth was seen trying to pitch it, and then going back for it when he thought the cops stopped watching.
He also had $260 cash on him. He’s arrested, released from the youth jail but back in, briefly, by Nov. 15, when he breached curfew and was tracked down with the help of a K9 dog and the police chopper.
And then, most recently, he is picked up again May 21 after being spotted on Beverly Street in the company of one of the Project Recall youth suspects, one who was granted bail after his arrest in the project [also a youth].
This time, he’s nabbed holding 16 rocks of crack and $135 cash and a cell phone.
The teen has no record. Therefore, his sentence was pretty much written in stone the minute he started seeking a Crown position: Two years of supervised probation and a relatively stern talking-to by the judge who cautioned him of what he’d be facing if he was just two years older, and how he didn’t believe the offender when he says he was preyed upon by other Mad Cowz members to take part in the gang.
At the end of the day, we have to wrestle with how this sentence in any way stops him from trafficking again, forces him to take the justice system seriously.
It mystifies me, personally.
(And lest we misplace blame, it’s the Youth Criminal Justice Act which really determines how it all shakes out, not the judge nor the lawyers).
And it’s not that I feel he’s getting off light. It’s just that he’s shown he can’t comply on bail, so I question what good a punishment of probation in the community will do for him — and for us.
I also wonder about the message the sentence sends the gang’s higher-ups, who are watching closely how the system reacts to what they’re doing.
That crack doesn’t just come from nowhere.
The revolving door of youths being effectively used by adult offenders to do their dirty work can’t close if the head honchos are perpetually told that the penalties are so light.
The false promise of gang life will continue to be sold.
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.
In homage to my Twitter pal @Tombrodbeck of the Winnipeg Sun, I give my faithful followers the first-ever installment of what will be now be known as “the Golden Crown award” — handed out to some of the best examples of Manitoba Prosecutors trying to deter and denounce unlawful conduct.
This illustrious award’s first recipient comes after a court hearing today where a Winnipeg mom of nine was spared jail after she drunkenly crashed her car and abandoned her five-year-old daughter inside, only to be arrested minutes later in her home, passed out on the couch and with another child screaming at the top of its lungs in the background.
Two hours after the crash, the woman — who has no prior record — blew a breathalyzer reading of .17 — more than twice the legal limit — and was charged with child abandonment and impaired driving (there were no injuries serious enough to bump it up to impaired causing bodily harm). The charge was referred to today in court as “Impaired Driving Simplicitor” — a charge that somehow nets everybody a fine upon a first conviction for it, at least according to one top Manitoba judge.
And here’s why Manitoba Crown attorney Lisa Cupples is this illustrious award’s first recipient.
She asked Judge Ray Wyant to send the woman to jail for the crime. She didn’t say how long, just that she be locked up to send her — and others — a message.
She even presented case law to back up why she should be locked up as a way to denounce not only her conduct — but deter others from drinking and driving. They’re two of the main sentencing principles enunciated by Parliament.
And what’s more, former Provincial Court Chief Judge Ray Wyant almost did send her to the clink — but ultimately ruled that it wouldn’t be in society’s (or the offender’s) interest to do so, for various reasons (see below).
But without a doubt, Cupples’s request clearly had Wyant thinking — and thinking out loud at that. He told her in his experience, no prosecutor had ever proposed such a thing.
Here’s his comments to her on her argument for jail, verbatim, from today’s hearing:
I have to say it’s the first time that I can recall — not necessarily a bad thing — but the first time I’ve heard a Crown attorney, at least in my experience, ask for jail on an impaired simplicitor where there were no injuries at least that justified the laying or the proceeding of impaired causing bodily harm.
I have to say I’ve seen countless cases — far too many sadly — of people driving at high rates of speed and blitzed, hitting cars and smashing whatever and — I appreciate you don’t speak for others — but I don’t think I ever recall anything but the Crown saying, ‘well take into account the seriousness of this, but because it’s a first offence, she should receive a fine.”
[Snip … to later in his reasons]
I commend the Crown for bringing that factor to the court’s attention. Often times we may get into the situation where we just have standard sentences for certain offences. ‘First time impaired simplicitor? — gotta be a fine.’
And a range of fine perhaps dependent on the existence or lack of aggravating circumstances: ‘what was the (breathalyzer) reading?,’ ‘Was there property damage?,’ ‘Was there a high rate of speed?,’ ‘Was there the potential for injuries?’ — That kind of thing, where the person has no record — and I think the Crown’s position reflects the fact that each individual case has to be looked at seriously, and that just because it’s an impaired simplicitor and just because the person has no prior record that doesn’t automatically mean that they get a fine.
And it shouldn’t mean that.
Drinking and driving is rampant and it doesn’t appear that we’ve been able to abate the carnage on our highways in spite of the education and in spite of the increased penalties.
I think we all know that if the police were probably given more resources to go out and nab impaired drivers, we’d see a lot more in here and that’s sadly something I think we all see too often.
Wyant then went on to give his rationale for why jail in this case was inappropriate (mom had just gotten all her kids back, was 1 year sober, had been actively participating in rehab and AA etc.).
But he complemented Cupples for raising jail as an option.
As we all should.
Ms. Cupples, keep up the good work. People notice.
Nothing like starting the week with a quick re-hash of the last. We all have traditions, tho.
First, a positive, from the University of Winnipeg’s Uniter:
Partnership to provide legal assistance to low-income families
The University of Winnipeg has announced that, in partnership with the University of Manitoba, they have opened the Legal Help Centre in the MacNamara North Building on Spence Street. The centre, staffed by University of Winnipeg Global College and criminal justice students, students from the University of Manitoba’s faculties of Law and Social Work and volunteer lawyers, is part of an initiative to provide legal assistance to disadvantaged members of the community. People with household incomes under $50,000 a year will have access to free legal advice, and the centre also offers drop-in services and workshops.
This, given the area the U of Dub exists in, is a great idea. Even from the position that legal advice will be offered to those in the area, many of whom would likely meet the guidelines for access.
2] Those interested about learning more about Gladue courts can, thanks to the Robson Hall Law Department, watch Jonathan Rudin explain them and what they’ve been able to do for Toronto. The future is now. Check it out.
3] The Province finally announced a public inquiry into the death of Phoenix Sinclair, just when one thought there was no way that was going to happen with an election looming. Even the fine print is promising, with the judge overseeing it being given a sweeping mandate to investigate whatever he sees fit. No dates announced, but justice Ted Hughes’s report must be complete in just over a year from now. Another Sinclair matter (an inquest) — that of Brian Sinclair — is still pending.