Judge rules alcoholics can’t be told to stop

No one could accuse provincial court Judge Bart Rosborough of being soft on crime. After all, he spent years as Edmonton’s nononsense chief Crown prosecutor.

And no one could ever accuse Rosborough of being soft on drunks. Indeed, in his career as a Crown, he advocated for tougher sentences for chronic impaired drivers and fought and won a landmark appeal, which allowed for a new trial and a successful conviction of a man who had assaulted his wife, and who was originally acquitted because he was too intoxicated to know what he was doing.

That’s what makes Rosborough’s recent ruling so extraordinary. Rosborough heard the cases of two petty repeat offenders — one from Ponoka, one from Hobbema, both aboriginal — who had been charged with breaching their bail conditions. It should have been a pro forma case. Instead, Rosborough found that release conditions that banned the two from drinking were unfair because they were severe chronic alcoholics.

“Ordering an alcoholic not to drink is tantamount to ordering the clinically depressed to ‘just cheer up,’” Rosborough wrote.

Access to reasonable bail, Rosborough noted, is a constitutional right. Demanding that an addict abstain, especially if there’s no access to addiction treatment, he ruled, was not reasonable.

“Requiring the accused to perform the impossible is simply another means of denying judicial interim release.”

The inevitable result, he found, is that alcoholics arrested for minor crimes repeatedly breach their bail conditions and end up back in custody. That, he argues, is one reason aboriginal offenders are overrepresented in Canadian prisons.

Rosborough is one judge in the province’s lowest court, and his ruling isn’t binding precedent. Still, Steven Penney, a professor of criminal law at the University of Alberta, says it’s so wellargued, it will be both influential and persuasive.

“It’s not often you see such a thorough and analytical ruling on bail at the provincial level,” says Penney. “It’s fairly unusual.”

But if Rosborough’s ruling was remarkable, the response of the Alberta government is even more so.

Greg Lepp is assistant deputy minister of Justice, responsible for Crown prosecutions. He says the province will not appeal Rosborough’s judgment.

“There’s not much in this decision we can disagree with,” says Lepp. “It’s authoritative and well set out. He’s right on the money. The police and the courts should not be seeking conditions of release that are impossible to comply with.”

Lepp says Crown prosecutors and courts tend to apply a ban on drinking as a bail condition as “a matter of rote.”

“We can no longer do this automatically,” he says. “We used to proceed on the assumption that, yeah, if you want to stop drinking, you can make a conscious decision to do so. Now we know it’s not that simple.”

In many cases, he says, someone is arrested for a minor offence, such as public intoxication, and is then unable to comply with their bail conditions. They get sucked, he says, into a whirlpool of breaches and rebreaches, as their addiction is criminalized.

Far from appealing the ruling, Lepp says he wants to use it as a teaching tool, to help Crown prosecutors craft reasonable bail conditions on an individual basis. In some cases, he says, an order to abstain from drinking would be reasonable, if the accused were entering rehab or was not a severe alcoholic. In other cases, he acknowledges, the court might have to deny bail completely, if the accused really can’t stop drinking, and if their chronic intoxication makes them a continuing risk to the public.

Will this new philosophy be so easy to sell to the public? For many, alcoholism is less a disease than a character flaw, a moral weakness. Others would argue that drinking is not a right, but a government-regulated privilege. In some cases — as in the case of an accused impaired driver — it is surely not unreasonable for the courts to forbid the person on bail from drinking.

In other circumstances, though, this particular automatic bail condition criminalizes the homeless, the hopelessly addicted and the mentally ill, wasting police resources, courtroom time and remand centre beds. In a province where we don’t invest enough resources in rehab programs, or in fighting the social roots of addiction itself, it is unjust, not to mention inefficient, to run revolving-door courtrooms, with people preordained to violate their bail conditions.

Judge Bart Rosborough’s judgment is a victory for radical common sense, and for fundamental justice. Let’s hope the condition is contagious.