Winnipeg Free Press - PRINT EDITION

Analysis: When the system fails

Jail not the answer for young man with learning disability

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Put yourself, even for just a moment, in Christopher Ferland's shoes.

The random lottery that is birth has you come into the world with a learning disability. You live on a remote, impoverished Manitoba reserve, are apprehended by the child-welfare system as a kid, bounced in and out of foster care, then transported to a large, strange city.

At 16, a relative punts you out of her home because social assistance cuts off the benefits they're willing to spend on you. You're cast onto the streets. You find temporary shelter at the Salvation Army hostel and, at times, with a another relative, but essentially, you're now a periodically homeless street kid.

Perhaps remarkably, you don't fall in with a gang or take up a criminal lifestyle to get by. Instead, you find help from a school offering a special class and a counsellor willing to work with you so you can try to overcome some cognitive challenges you live with.

But then everything changes. You find yourself arrested for a domestic assault that allegedly occurred many months before, one you deny happened. For the first time, at 19, you're thrust into an unfamiliar justice system, initially without a lawyer to guide you. Because you have no prior record, police release you to appear in court at a later date.

You turn up for that first court date, but are confused and can't navigate the bureaucracy of the courts building.

You wind up with a warrant out for your arrest for non-attendance. Over the coming months, you're rearrested several times -- a couple of them because you're not living where you told the court you would be. One rearrest comes after police see you shaking hands with someone at a downtown mall and they suspect you are dealing drugs. You're not.

Police and prosecutors give you chances to get out of custody without opposing your release, but after your fourth rearrest, the Crown now wants to see you held in custody until you deal with your charges.

A judge grudgingly gives you a fifth shot at freedom, saying he can't believe he is, but is doing so largely because he doesn't believe you're a risk to the public.

But you soon get collared as a break-and-enter suspect after being found with others in a vacant home. Police concede it's a case of "victim unknown." No damage other than to the rear door has occurred. It's not clear who broke the door.

After sitting in custody for a couple weeks, this time a different judge refuses to let you out again.

Notably, her concerns are "not so much for the safety of the community as it is a concern you won't follow court orders."

You're out of chances. Now you sit in locked custody until you resolve your charges, despite the fact you have no prior criminal record. You won't finish school this year, and you've lost the placement at where you were living.

How long resolution of your charges will take, who knows? You're contesting the initial assault allegations that put you in this predicament in the first place. Trials take time to arrange.

It's safe, however, to say you'll spend longer behind bars on remand than you would for any sentence that may get noted on your new criminal record at the end of the day.

Let's summarize the key points: You're poor, cognitively challenged, essentially homeless and without much support in life through no fault of your own.

And now, to a great degree, those factors, which are beyond your control, are preventing you from being able to follow court orders and let you stay out of jail, where you're being exposed to violence and the influence of concentrated criminality.

This is Christopher Ferland's story, by and large. It's similar to many seen in Manitoba's justice system.

I'm not going to pretend I don't agree with Judge Catherine Carlson in her decision to keep Ferland in custody this time.

It's pretty apparent giving Ferland a sixth shot at bail would make, as she felt it would, a mockery of the bail system as it exists today.

Neither can I fault newly minted Court of Queen's Bench Justice Sheldon Lanchbery for refusing to overturn Carlson's ruling this week.

Judges have a job to do, and front and centre is their responsibility to uphold the rule of law and the administration of justice.

We can, however, ask ourselves if maybe the bail system they work within -- as set out by the Criminal Code -- is broken in cases like Ferland's.

The argument can easily be made -- as it was this week by defence lawyer William Marks -- that we're criminalizing and incarcerating aboriginal people at the bail stage because of background factors they have zero control over. Remember, it was just a few weeks ago that one judge agreed to release Ferland because he didn't pose a safety risk.

If there's no risk to public safety, why are we locking him up?

It's well-established by now that aboriginal people comprise a staggering percentage of the inmate population in provincial jails. In Manitoba, it's more than 70 per cent.

Anyone with half a conscience would say this shows something is fundamentally wrong and has to change.

I believe a major issue in Manitoba is our lack of a so-called "Gladue court" where cases like Ferland's could be diverted and reassessed at all stages -- from bail to pretrial to sentencing.

If we had one, the background factors influencing why Ferland keeps getting rearrested could be examined in depth.

Detailed plans could then be put forward to secure his freedom. Those plans would try to address his unique background factors while keeping him in compliance with the law.

And our laws are clear, at least when it comes time to dish out a sentence, that "all available sanctions other than imprisonment that are reasonable in the circumstances" should be on the table, especially for aboriginal offenders.

Yes, setting up a Gladue court would mean we'd have to pony up the dough for an adequate community-resource and supervision regime.

But consider this: If we keep Ferland locked up for a total of six months, we'll have spent more than $31,000 (at the provincial estimate of $174 a day) just to keep him in jail.

And what for? Judges have already indicated he's not a risk to public safety.

That's precious taxpayer money that could have gone to providing Ferland resources to help address his homelessness and learning disability. No doubt that would be less expensive.

It's odd. In Manitoba, we're not strangers to trying innovative, problem-solving justice methods. For years, we've had drug-treatment court and recently saw the addition of a mental-health court.

These are really, at root, collaborative responses to serious social problems.

What could be a more serious social problem than people rotting in jail -- not because of serious, violent criminality, but because we refuse to innovate?

It was more than 20 years ago the Aboriginal Justice Inquiry made several recommendations regarding fair treatment of aboriginal suspects at the bail stage.

One was that provincial judges should guard against placing inappropriate release conditions, such as financial guarantees and cash deposits, on people who are destitute.

Ferland's case shows we still have a long way to go.

james.turner@freepress.mb.ca

Republished from the Winnipeg Free Press print edition October 6, 2013 A8

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