Substance use becomes a legal issue once complications arise from it: Addiction physicians
As conditional sentences become more frequent because of jail overcrowding due to the COVID-19 pandemic, Karl Toews, a criminal lawyer at Kruse Law Firm, advocates for drug and alcohol monitoring as a critical component in house arrest conditions or probation.
“Many cases start with the drug and alcohol issues. That’s the demon that drives a lot of these offenses,” Toews says. “It’s quite awful on a daily basis how many domestic assault cases are before the courts and how many start with drug and alcohol issues.”
Conditional sentences are alternatives to an actual jail sentence when the circumstances can still fulfill the sentencing principles of denunciation, and deterrence and Toews say drug or alcohol addiction issues are part of the court’s consideration when devising a sentence.
Alcohol monitoring involves checking in remotely using modern technology and smartphones three or even four times a day to confirm that convicted persons have not consumed alcohol or drugs, Toews says.
Toews will be proposing an alcohol monitoring program before the court at a sentencing hearing on December 9. He says his client committed a series of domestic assaults under extreme intoxication, and the case “cries out for it.”
“After his arrest, he committed himself to seven weeks of residential treatment and made a strong commitment to staying sober and has stayed sober since January of this year. He wants to get better. He never wants to be in front of the courts again.” Toews says his client struggled with severe alcoholism in the past and worked hard to put that behind him.
He says that alcohol and drug monitoring will not address deterrence or denunciation but can be crucial in rehabilitation. A conditional sentence is a jail sentence served in a person’s home that, and the judge will fashion certain exceptions to the house arrest, he says.
In most conditional sentences, the judge bans convicted persons from consuming alcohol or drugs in their home, and Toews says the basis is that if they would not have access to alcohol in jail, they should not have alcohol in their house arrest situation.
However, he says Canada does not yet enforce alcohol monitoring as part of conditional sentences or probation orders, and it is easy to cheat the ban on alcohol use because the justice system has limited resources to monitor people several times a day.
“I suspect that cheating occurs from time to time, and people simply take chances with cheating on their conditions and hoping they don’t have any form of compliance check that particular day.”
Samantha Feldman and Ilan Nachim, family physicians, specializing in addiction medicine at Bridges Medical Care, say drug and alcohol use is considered a medical condition, and legal problems are some of the symptoms of mental health and substance misuse issues. “Substance use is a medical issue, not a legal issue. It becomes a legal issue once the complications arise from it.”
In many cases, Nachim says jail does not help with the observation of drug and alcohol use because many people with addiction issues would not commit their crime if not intoxicated in the beginning. He says medical treatments with a monitoring program would help people avoid drinking or consuming substances that make them commit crimes.
When people go to jail or are on probation, Nachim says no monitor group is involved resulting in poor compliance.
Feldman says drug and alcohol monitoring is a common condition of probation in the United States and can be a condition of house arrest or probation. She says a monitoring model gives the court a complete picture of a person’s functionality and helps build trust. “You can say to somebody, have you been drinking, and you can choose to trust the answer or not,” she says, “but when somebody is showing you regular evidence of their sobriety, and it’s a long-term thing, then it can start to rebuild trust.”
Feldman will remotely attend the sentencing of Toews client on December 9. “She’ll be there to answer any questions the judge or the crown may have, and I suspect that it’s going to show the judge an extra level of commitment to sobriety on the part of our client and encourage the judge to grant him the condition sentence,” Toews says.