Why we are , Where we are..Posted on: November 23, 2021
*please note that these thoughts are the personal opinions of Jeremy Heighton, and do not necessarily represent the thoughts of the NSBIA or our Board of Directors.
Why we are, Where we are: My personal thoughts on the state of Social and Criminal accountability in Canada.
In our recent work to advocate for greater levels of social programming accountability, as well as willful criminal accountability, it has become crystal clear that there are three failing systems in place in Canada.
One is our political system; one is our judicial system; and the final is our health care system. Until we, as a unified community rise up with one voice to demand the changes we seek, such as greater community safety, detention of criminals, and capacity in complex mental health care, we are destined to repeat the chronic failures that we are experiencing in our community each and every day.
Politically, there is little appetite to conquer the systemic failures. In my many conversations with political leaders at the provincial and federal levels, there is consensus that what we have been expressing as concerns about community safety and lack of complex care is a real issue that politicians across the country are seeing. These politicians will be the first ones to agree that it’s a tragedy unfolding in real time. But that’s where things stop. Most politicians will tell you that there are so many facets to consider; so much complexity, competing jurisdictional issues, lack of coordinated political will, and many more issues that need to be addressed.
I agree. However, I also believe that until the state of affairs we face today is more uncomfortable than the change required, politically, the systems will never be redesigned and our challenges will never be resolved.
A key outflow from political will is the financial resources applied to resolve these issues. At this time, many millions of dollars are being spent to get folks into housing, a great first step. Yet these same housing units have no next steps, no opportunity to grow, or healing programs from a strategic or predictable perspective.
Yes, politically we can hold up our heads and say we are doing something, but like the decision to “heal folks” in community 35 years ago, this strategy is not considering the next steps, the fallout, or reality of sustained under resourced programing. Don’t get me wrong, there are many extremely dedicated community members who are working miracles with the scant and often disconnected funding sources they access. They now need the political will to support them to do the good work that they could do, with the right systems in place.
Political will at the Party and Federal mandate level, will only occur when Politicians hear clearly that the current system is broken, and we want it fixed. Lack of political will is indeed the cornerstone of the broken system.
When we look at the challenges in the Judicial system, the opportunity to effect change is even more challenging than the political system. The judicial system is driven by laws, legislation, and legal opinion. The reality is that the legal system is not currently serving its taxpaying citizens. It is, instead, serving the need to protect the “right to presumed innocence” that our constitution is built upon. I certainly agree that this right is key to maintaining a fair system, however, Supreme Court decisions in recent years have led us to a place where repeat criminal offenders can no longer be held in custody, where RCMP and local Police forces MUST release offenders in a timely manner, pending charges, and where detention is only reserved for the most egregious of offenses.
The three supreme court rulings which created this environment are:
SUPREME COURT OF CANADA Case in Brief: R. v. Zora
Overviews a presumption of innocence and the application of the least conditions as possible, to not hinder quality of life.
Being found guilty of a breach can have serious effects on a person’s life. They can go to jail for up to two years for each breach and are more likely to be denied bail in the future. This especially affects vulnerable and marginalized people who can get many charges because they can’t follow their conditions. Charging people for breaching conditions isn’t the only way to prevent them from doing this. The crime exists to stop people who know they are breaching their conditions, or know they are risking it, and do so anyways. Parliament meant for courts to look at the person’s situation when the breach happened.
The Court also said how bail conditions should be set. Normally there shouldn’t be any conditions on bail. If there are conditions, there should be as few as possible. They have to be clear, necessary, and match the risk of the situation. Courts should be careful not to set bail conditions that a person can’t meet.
This means, in practical terms that Conditions of Release, pending charges or even upon conviction, should be as minimal as possible to not hinder a person’s ability to respond, or live within their freedom. Innocent until proven guilty so they shouldn’t be remanded until they are proven guilty.
SUPREME COURT OF CANADA Case in Brief: R. v. K.J.M.
Overviews expectations regarding how quickly the accused moves from Charge to Trial. Accused are often released without charges, due to the need to investigate. The critical time used to investigate will not count toward the time lapsed if the charge has not been laid. The clock starts once the charge is applied.
R v. Jordan. Jordan set out new rules to decide how long is too long for a criminal trial. In Canada, everyone charged with a crime has the right to be tried in a reasonable time. This right comes from section 11(b) of the Charter of Rights and Freedoms, part of Canada’s Constitution. If the time between the charge and the end of trial is too long, the court can stop the prosecution. This is called a “stay of proceedings.” Jordan said most trials should finish either 18 or 30 months after a person is charged, depending on the type of trial. If a trial takes longer, it should be “stayed” unless the Crown (the prosecution) can show a good reason why it should continue.
Crown outlined the COVID has impacted how long it takes to have a jury trial and many accused are now opting for a jury trial in the hopes the 18 month timeline will pass before the courts can organize a jury.
Additionally, the RCMP must have all possible evidence ready at the time charges are laid in order to have the best chance the trial will happen within the timeline.
Finally, Gladue set the expectations around sentencing provisions for Indigenous defendants. Crown and RCMP must consider the historical trauma of an accused.
R v. Gladue,  1 S.C.R. 688
Overview the expectation that courts will use all relevant factors in sentencing for Aboriginal defendants.
Sentencing is an individual process and in each case the consideration must continue to be what is a fit sentence for this accused for this offence in this community. The effect of s. 718.2(e), however, is to alter the method of analysis which sentencing judges must use in determining a fit sentence for aboriginal offenders. Section 718.2(e) directs judges to undertake the sentencing of such offenders individually, but also differently, because the circumstances of aboriginal people are unique. In sentencing an aboriginal offender, the judge must consider: (a) the unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and (b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection. In order to undertake these considerations the sentencing judge will require information pertaining to the accused.
In effect these three pieces of legislation have resulted in a system of what has been called by Mayor Christian and many others: “Catch and release” policing. It is a system which the RCMP themselves have expressed frustration in, and which Crown Council and RCMP are trying to find alternate methods of dealing with serial offenders.
The other piece of the legal challenge is the alternate court system which has been proposed. Just like the attempt to get housing in place, the alternate court system, while sound in theory lacks the system to make it work.
As an example, in the alternate mental health court lets assume an individual is detained due to a criminal activity, but, this activity was rooted in chronic mental health issues. We all agree that the preferred option is mental health care, with the potential to resolve the underlying medical issue. Yet, these robust medical care systems that would empower the court to create the best health base outcomes is, at best, severely limited in its capacity to respond to the needs of society or the court.
An alternate court system cannot function without the foundation to provide alternate care. Once this foundation is designed and the capacity is available, only then is this a sound model. But like most of the rest of the sobering, detox, complex care health care system, it does not currently exist.
In a recent meeting, one well informed legal expert told us:” its likely that no one will challenge our current Supreme Court rulings for at least the next 20 years”.
This is the core of the legal and political disconnection problem; when we are complacent in our acceptance of a system which is failing, instead of advocating to set new precedents, what we are really saying is we don’t care about those we serve and their desired outcomes (community safety, appropriate accountability etc.).
Many of our community leaders have embraced the concept of complex care. In its simplest form, to me, this means a health system that responds to the needs of the community, in support of positive health outcomes for all members of a society.
The Province of BC is responsible for the provision of health services, and locally, this is advanced by Interior Health. Many local health professionals are equally dismayed by lack of application of healthy outcomes to our social and community health systems, often focusing solely on harm prevention, rather than the full four pillars approach to creating healthy outcomes.
The health system is fundamentally failing us in BC. We have a significant lack of doctors, understaffed hospitals, poor outbound communication from our Health Authority leadership, and a significant lack of capacity in our complex care systems. Add to this Nurses and Doctors who are overworked, over scheduled, and are approaching burnout, and its clear our current system is on life support. We need to change our approach to health services, re-imagine what can be done, and work to increase capacity in health recruitment, education and scope. This requires a decision provincially to take the leap of faith into a new system of response; one which can accommodate integrated health services, complex care, alternate medical systems and respond to the needs of the society it serves. The services of a new complex care system would include services such as; robust medical professional access for all, mental health supports, detox systems, life support programing, counseling, life skills development and so much more. This type of system is actually both the entry point and support system of all of our community goals.
In my opinion, all of these three aspects (political, legal and health) are contributors to why we are where we are. But, don’t lose hope.
Right now, our City Council and Staff are working hard to advocate for change in a system that is not within their legal mandate to deliver, change or control.
Right now, community leaders here in Kamloops, across BC and Canada are working to bring these issues forward to our elected officials and make the case for functionally effective change.
Right now, academic institutions (SFU and UBC) are leading the fight to prove that not only is a robust health system functionally desirable, it reduces costs and creates greater outcomes for both the person within it, and society as a whole.
Right now, we are acting on your behalf, sharing what we know, what we desire and what you tell us with leaders at all levels. Its going to be a bit of a fight to create a system which achieves the best healthy outcomes for our community. But I can assure you, we will be here for you, every step of the way.