Laws just, but of little comfort

Two legal principles that seem weak-kneed on the face of them were brought to life at a pair of sentencing hearing earlier this week in provincial court in Penticton.

The first case involved 24-year-old Jakob Holmes (see story on page A4), who was sent to jail for assaulting a local police officer.

The usually decisive Judge Greg Koturbash clearly struggled with the case, seeming reluctant to send the diminutive, baby-faced Holmes – an admitted alcoholic – to jail with hardened criminals.

The judge was considering a conditional sentence of house arrest, but seemed reluctant because it’s still considered a jail sentence and therefore drinking is a no-no.

“The difficulty that I have with a conditional sentence… is it might be setting you up for failure if I impose a condition that you not consume alcohol. More importantly, I think I may be failing the public if I didn’t, because it’s become apparent that when you drink you become a very dangerous individual,” explained Koturbash.

“If I put you on a condition of abstaining from alcohol, can you do that?” the judge asked Holmes point-blank.

“I’m going to be very honest with you: Due to circumstances, I’m not entirely sure,” Holmes replied with equal candour.

While you at home may be struggling to find sympathy for a convicted cop attacker who can’t put down the bottle, courts do indeed treat alcoholism as the disease that it is – and have wrestled with the issue for years. In fact, a leading case out of Alberta found it unreasonable to expect all alcoholics to dry out – because some can’t.

“Ordering an alcoholic not to drink is tantamount to ordering the clinically depressed to ‘just cheer up.’ This type of condition has been characterized by some courts (at least in the context of a probation order) as ‘not entirely realistic,’” Alberta provincial court Judge B.D. Rosborough wrote in his 2013 decision in R v. Omeasoo.

Faced with such decisions, judges will often order hardcore alcoholics to only drink in their own homes and forbid them from being in public if intoxicated while they’re on probation.

It’s a reasonable, humane approach to an issue that is far more complex than it seems at first glance.

The second case of note this week was that of Aaron Jack-Kroeger, who was convicted of assault causing bodily harm in connection with a swarming attack at a 2015 Penticton grad party.

Koturbash again went to great lengths to figure out what to do with the 20-yearold member of the Penticton Indian Band in light of so-called Gladue principles that tend to reduce sentences for Indigenous offenders.

The landmark 1999 case of R v. Gladue was decided in the Supreme Court of Canada and paid particular attention to why Indigenous people were – and are – overrepresented in the country’s jails and what could be done about it.

(As of 2013, Indigenous people made up four per cent of Canada’s population but comprised 23 per cent of the federal inmate population, according to the federal Office of the Correctional Investigator.)

As noted in the Gladue decision, “background factors which figure prominently in the causation of crime by aboriginal offenders are by now well known. Years of dislocation and economic development have translated, for many aboriginal peoples, into low incomes, high unemployment, lack of opportunities and options, lack or irrelevance of education, substance abuse, loneliness, and community fragmentation.

“These and other factors contribute to a higher incidence of crime and incarceration.”

Since that decision was written, the rest of Canada has come to more fully understand the shameful, generational scars left by residential schools on Canada’s Indigenous people.

And as Koturbash noted Monday, the Gladue factors aren’t a get-out-of-jailfree card, but they are to be taken seriously, in some cases leading to lighter sentences or restorative justice-type outcomes.

Now, while these two legal principles are clearly well-grounded and thoughtful, they must come as cold comfort to victims of crime who watch offenders get off with a relative slap on the wrist.

But there are reasons why people do the things they do.

Joe Fries is the city editor of the Penticton Herald