How tough can we get, really?

We'd love to think this, but is it true? (MPI)

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.

Public speaking? (Similar to the above…)

We all know by now that sentencing reform is well underway in Canada – typically leaning on harsher jail terms, mandatory minimums and so-called “traditional” punitive measures.

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.

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