]
To quote Justice Moldaver, “Sentencing is a highly individualized
process. A delicate balancing of the various sentencing principles and
objectives is [required]” R v Suter, 2018 SCC 34 at para 4. Nevertheless,
Canada, while it has made advancements, does not yet safeguard the dignity and
the rights of the mentally ill adequately.
Early Intervention
Drug Treatment Court
First,
I attended EIDTC, which saw approximately 25 offenders. We were in a small windowless
room. The Court was cramped owing to a full docket. It resembled a Calvinist church.
It had pews and carpet with bare walls. Elevated benches and waist high wood
barriers separated the Judge, clerk, and stenographer from the public. The
Judge had the tallest seat to reinforce his authority. His Honour’s black robe, red sash, and white collar,
together resembling the vestments of a priest, underscored the historical connection between
ecclesiastical and judicial functions in common-law countries.
Persons of colour were slightly overrepresented. The
gender split was approximately 70% male and 30% female. I have fictionalized their
names. Each participant appeared to understand the proceeding, though, as to be
expected, most had duty-counsel. Section 10(b) of the Charter does not mandate this because the proceedings are not grave
enough, and lack of counsel would not seriously impact trial fairness under
sections 7 and 11(d) of the Charter R v Rowbotham 1988 ONCA at para 156, though having duty counsel at this program is a good
policy.
EIDTC is a 2019-20 pilot
project. The alternate measures section of
The Criminal Code empowers governments to make such programs (CCC s 717.1(a) ). The initiative expands the regular drug
treatment Court program to first time drug-crime-accused with little or no
criminal record, who did not commit a violent offence together with their drug
count(s). Accused persons cannot have trafficked drugs. The exception is if
they can prove their drug trafficking sustained their addiction and was minor.
The program only applies to those addicted to opioids, barbiturates, cocaine,
and methamphetamines. This choice reflects the fundamental principle of
sentencing—proportionality between the punishment and the gravity of the crime (CCC s718.1). Because addictions diminish
willpower and moral culpability, persons addicted to hard drugs deserve
leniency.
Instead of Denunciation (CCC s718(a) ) and Deterrence (CCC s718(b) ), the primary goals of EIDTC
are Rehabilitation (CCC s718(c) ) and
Encouraging Accountability (CCC
s718(f) ). Weekly supervision supports the goal of rehabilitation. It also
fosters accountability. The Court’s guidance is useful, considering that drug
treatment courts may impose conditions on participants to ensure public safety,
such as a community treatment order. In consideration of a guilty plea, program
members take a 16-week course of mandatory outpatient rehabilitation, as part
of, or in substitution for, a criminal
conviction. Members must submit to
unscheduled and supervised drug testing. Participants must be sober for the
last four weeks of the program to graduate and have their charges stayed or reduced.
Mandatory guilty pleas for this program are unsettling. Many of the
participants presumably make a guilty plea while intoxicated or suffering
withdrawal symptoms. Can this choice be genuinely unequivocal, voluntary, and
informed, consistent with the recent holding in R v Wong, 2018 SCC 25 at para 3?
Program members also sign
an undertaking to avoid high risk situations that may aid or abet problematic
substance use. They must report to the Court every Tuesday at 2 PM. Each week the
presiding Judge interrogates members regarding whether they have fulfilled this
condition, as well as their sobriety requirements, during the
last seven days. During this proceeding, the Judge hears evidence from the
addiction counselor, the Crown, and the duty-counsel concerning the offender’s
progress, imposing sanctions, like community service, or rewards, like a coffee
card.
The Charter does not protect recreational drug use R v. Malmo‑Levine,
2003 SCC 74 at paras 86-9. Addiction has a constitutional dimension,
however. In Canada (Attorney General) v PHS Community Services 2011 SCC 44 the
Court ruled that addiction is a disease at paras 101-5. Following this
decision, the SCC ruled in R v Lloyd SCC 13 2016 that mandatory minimum sentences
for second time drug related accused, if applied to addicted offenders, may constitute
cruel and unusual punishment at para 37.
Using language that the
Supreme Court adopted in Canada v Bedford
2013 SCC 72 when discussing the argument that sex-workers have a realistic
option not to engage in their trade, persons with problematic substance use
have very “constrained choices” at para 86. EIDTC forgives minor trafficking
and property offences, so long as they served an addiction. The EIDTC
initiative recognises that trafficking for financial gain is more culpable. An
entrepreneurial trafficker is deliberately trying to exploit others’
vulnerability for profit. Conversely, an addicted low-level trafficker frequently
verges on a state of mental incapacity. The program excludes violent criminals
because physical harm to someone else aggravates moral blameworthiness. R v Ruzic, 2001 SCC 24 at
para 41 holds that volition is an essential criterion for criminal
responsibility. Nonviolent drug crimes, ergo, pose an ethical problem for our
criminal law. A person with an addiction, especially to an opioid, has
compromised autonomy. Additionally, despite not being a principle of
fundamental Justice, the harm principle
remains an indispensable canon of statutory construction for courts and Parliament
R v Labaye 2005 SCC 80 at para 6.
Because there is reasonable disagreement respecting the ethics of drug use, and
it does not harm others directly, it is closer to a malum prohibitum than a malum
in se. Consequently, the program advances our unenlightened treatment of
persons to use drugs in the right direction.
The program does not go far enough, however, despite
its worthy goals. Offenders who receive a good report from their rehabilitation
counsellor may become part of the “all-star program,” (a childishly drawn chart
on primary school easel paper signified the members of this distinguished
group), have the choice of not attending Court for a week, and receive a Tim
Horton’s gift card. By contrast, an offender who uses drugs, or who is late for a Narcotics Anonymous
meeting, may have a few hours of community service to complete for the
following Tuesday.
One of the funniest instances of positive behavioural
conditioning I have seen was the legal requirement that the presiding Justice say
the words “praise and encouragement,” if participants received favourable
reports from their addictions counsellor. Though courteous and patient, His
Honour was frequently blasé when he offered “praise and encouragement” and led the
Court in the also mandatory clapping. The
program uses emotional support to change an offender’s behaviour. State
sanctions for non-compliance, including imprisonment, though, always loom over the
supportive atmosphere.
We had a strange start. Susan, after the Justice
inquired when she had last used substances, said that she used cocaine the
previous evening. She could not resist the cocaine her partner offered. Like
something from a Catholic melodrama, the Justice praised her for her honesty,
and then His Honour proceeded to give her a spontaneous lecture regarding our
moral obligation to resist temptation. The Judge instructed us to clap for her
integrity (read, because she admitted to her criminal soul and need for
forgiveness). Our pro forma clapping signified
that her confession placed her back in a state of legal grace. We had many
successes that outweighed the distraction of characters like Susan. For
instance, Julio successfully attained admission to a personal training program
while in EIDTC. But, do the noble aspirations of the program justify its paternalistic
methods?
Persons with problematic substance use need and
deserve dignity, affirmation, and social supports, yet I am sure that some that
participants found the program patronizing. Though Tim Hortons’ coffee is tasty
to some, it is not a substitute for hard drugs. Forced rehabilitation may not produce
the stable change the program desires and treat the underlying maladaptive
behaviours that cause addiction. I wonder if disciplining and rewarding persons
combating addiction like children is both consistent with liberal political
values and will, in fact, help them cultivate enduring accountability to
themselves and society.
Nelson’s Bail Hearing
At
4 PM, the Court became a general Mental Health Court and presided over Nelson’s
bail hearing. Nelson has schizophrenia. Nelson was arrested for pulling a
weapon, though likely not a firearm, on his neighbour. Nelson was (nearly) psychotic
at the time of the incident. Professionals
stabilized his condition(s) in custody, however. Nelson did appear to
understand the proceedings, was treated courteously by the Caucasian Special
Constable guarding him in the prisoner’s witness box, and the white Justice
spoke to him compassionately and directly. Nevertheless, he still looked terrified,
confused, and deadened by antipsychotics. Subjecting Nelson to this hearing and
pretrial detention appeared cruel and unusual, given his past (near) psychosis
and present state.
Furthermore, Nelson was black. Meditating on R v Grant
2009
SCC 32 at para 133 and R v Le 2019
SCC 34 at paras 68-80, I thought that having a young white male officer guard
him might have intimidated Nelson. Though duty counsel did not raise the
defences of NCRMD (CCC s672.33) or fitness to stand trial (CCC s2), His Honour was prudent when he requested the staff
psychiatrist see Nelson the following day to receive a professional determination
of these questions. I wondered whether Nelson appreciated the nature and
quality of his actions or their moral gravity when he offended. I hope he is
acquitted and gets treatment; for, to quote
Lebell J, “[attributing] criminal responsibility thus gives
rise to a presumption that each individual can distinguish right from wrong
(R v Bouchard-Lebrun 2011 SCC 58 at para 49).
Nelson did have a criminal record. His charges, however, antedated this
proceeding by eight years. Consequently, the Judge did not consider Nelson’s record
indicative of future conduct. R v Antic 2017 SCC 27 reaffirmed that an accused should face the
least onerous bail restrictions and conditions possible at paras 8, 40-50; R v Pearson [1982] 3 SCR 685 at 91-2; R v Morales [1992] 1 SCR 711 at 735 CCC s15)(2). Nelson was not a flight risk under the primary ground for denying
judicial interim release. His mother agreed to supervise him, though she
refused the full responsibilities of a surety. The secondary ground, protection
of the public, concerned the Crown, however. Enhancing the standard
keep-the-peace, no-contact-with-victim, and no-weapons orders, His Honour made
a community (psychiatric) treatment order. Nelson’s case requires
state-funded counsel: he cannot pay counsel; the action is complex; he has an impaired
mental state; and he faces considerable criminal jeopardy R v Rowbotham 1988 ONCA
at para 156) The right to counsel is critical in Nelson’s case because it
upholds the principle against self-incrimination, which includes both the
voluntary confessions rule and the section 7 right to silence R v Singh, 2007 SCC 48 at para 21; R
v White, [1999] 2 SCR 417 at para 44; R v Oickle,, 2000
SCC 38 at para 68; R v Hebert, [1990]
2 SCR 151 at 173.
Assault with a
weapon (CCC s276) does not have a
mandatory minimum. According to the reasoning in Lloyd, supra, a lengthy
custodial sentence might have been disproportionate to Nelson’s moral culpability.
If Nelson had committed a more serious crime, he would have been subject to a
mandatory minimum. If Parliament wishes to impose mandatory minimums, it should
make an exemption for the mentally ill; anything less is unconstitutional.
Nelson’s hearing was a public shaming similar to the SCC’s criticism of shaming
impoverished offenders in R v Boudreau,
2018 SCC 58 at para 77. Nelson’s supervision is necessary, yet putting him
through the trauma of a bail hearing and pretrial detention, however benevolent
the Justice was, seemed draconian.
Nelson’s case illustrates
that criminal law is often a ill-equipped tool for handling mental illness. The CCC says that denunciation and public
safety are part of the purpose of sentencing, but just sanctions are as well.
(s718). Notwithstanding excellent progress, Canada has much work to accomplish.
