28 Seconds

by Michael Bryant

  After the accident, the community of bicycle couriers rallied repeatedly in Darcy Sheppard’s memory. It is an underclass and a counterculture that renders a lot in metal: their bikes, their piercings of face and body. Their uniform often includes camouflage pants, which the dead man was wearing that night.

  While Sheppard and I did come from different beginnings and different worlds, and while I have no way of ever understanding the pain and consequences of his past, there was more intersection of our life experience than any of those so quick to grab at a Bonfire of the Vanities narrative might have imagined.

  We are told in recovery that alcoholics are probably destined to spend a portion of their lives in the company of other alcoholics. The only question is whether they will be drinking together while they do so, or helping each other to stay sober. It has been, to date, and one day at a time, my great good fortune to be among the latter.

  We are also told that all our experiences, no matter what they are, have value when shared with others. They serve either as examples when we do succeed, or as warnings when we don’t. In that sense, and in others, Darcy Allan Sheppard, whose friends called him Al and whose name will be linked to mine for the rest of my days, stays with me always.

  SIXTEEN

  The Elephant in the Room: Criminal Justice Reforms

  If anyone got the short shrift from our criminal justice system’s blindness to addiction, it was Darcy Sheppard. His tale is littered with opportunities for intervention and support for someone clearly needing aid from the health-care system. Maybe for a time he was, like many, unwilling to face his demons. But the system did not offer him a mirror, nor did it seek to treat his addiction when his willingness did arrive. Darcy Sheppard is a poster child for the failure of our criminal justice system to aid the sick through health care.

  Compared to other governments, the Ontario government I served with, led by Premier Dalton McGuinty, did more than most. But we never fully opened our eyes to the harms wrought by substance abuse. Simply put, the human carnage and financial cost are monumental. Five years ago, the Canadian Centre on Substance Abuse estimated the costs of substance abuse on the health-care and justice systems, along with lost workplace productivity, at $39.8 billion annually in Canada. Three years ago, the Centre for Addiction and Mental Health (CAMH) estimated that alcohol abuse alone costs each Canadian $463 a year and that direct health-care costs for alcohol abuse exceed those of cancer. Let me repeat that: direct health-care costs for alcohol abuse exceed those of cancer.

  An extensive study done for CAMH—Avoidable Costs of Alcohol Abuse in Canada, 2002—suggested that implementing six recommendations could, even under conservative estimates, save 800 lives a year, save more than 88,000 acute care hospital days a year, and save $1 billion a year across the country.

  “We should take alcohol way more seriously than we currently take it,” said CAMH senior scientist Dr. Jürgen Rehm at the time. “It is one of the main costing factors within our health sector and it is preventable.”

  The harm ripples on and on, into homes, into wombs. Alcoholism blackens eyes, breaks noses, and worse. A separate research study by CAMH established a link between drinking and domestic and partner violence. In the chapter on Canada in a book called Unhappy Hours: Alcohol and Partner Aggression in the Americas, international researchers found that the level of alcohol consumption was strongly associated with being both the perpetrator and victim of partner violence.

  Alcoholism harms newborns, ruins their lives. A 2006 report for the Institute of Medical Science at the University of Toronto estimated that 3000 babies are born each year in Canada with fetal alcohol spectrum disorder (FASD). At the time, best estimates put the annual costs associated with those under 21 affected with FASD at almost $350 million. Darcy Sheppard was one of those babies.

  Alcoholism is in your home, or on your block. According to a 2004 Canadian addiction survey, while most Canadians who consume alcohol drink in moderation, about 16 percent of those who reported drinking in the previous year admitted consumption levels associated with an elevated risk of alcohol-related problems.

  Alcoholism is cunning and baffling, not only for alcoholics, but for everyone else, lulling all of us into thinking it’s someone else’s problem. Studies also suggest that Canadians’ perceptions of the relative seriousness of substance abuse are out of whack with the actual costs they impose on society. Total costs associated with alcohol are more than twice those for all other illicit drugs (according to the 2002 data), yet the public consistently rated the overall seriousness of illicit drugs (in the Canadian Addiction Survey of 2004) as higher.

  This is neither stupidity nor mere perversity. Researchers have found there are strong psychological, social, economic, or cultural incentives that serve to conceal or downplay the true nature of certain hazards in society. After all, alcohol is readily and legally available to all adults.

  Being legal, alcohol is still the drug of choice, the Canadian Centre on Substance Abuse reported in a 2007 study that compared the perceived seriousness against actual costs of substance abuse. “As such, [it] commands a somewhat privileged position in our society,” the report said. “Data on the significant costs of alcohol to Canadian society, however, suggest that it is appropriate to confront this position and expose alcohol as a significant yet relatively under-recognized social risk.”

  In sum, substance abuse is everywhere, it’s right in front of you, it’s wreaking havoc, it’s hurting, it’s killing, and it’s costing you, the taxpayer, a lot of money.

  Worse still, the consequences of substance abuse get too little attention, too late, at the back end (the justice system), rather than the front (as a chronic health issue). One scholarly report reviewed federal spending for 2005, finding that of the tax dollars spent dealing with illegal drugs, 73 percent is spent on enforcement, 14 percent on treatment, and the remainder on harm reduction, prevention (3 percent), and research.

  Not surprisingly, many alcoholics and drug addicts run up against the criminal justice system. Some crimes are perpetrated merely to feed addictions, as in the junkie who robs, steals, or defrauds in order to fund a habit. Other crimes have possession or consumption of drugs or alcohol as an element of the offence: narcotics possession and trafficking, driving under the influence of alcohol or drugs. Some arise as a consequence of intoxication: nuisance-related offences, usually involving drunken revelling or vandalism; but also assault, sexual assault, and murder.

  As the Ontario Legislature’s Select Committee on Mental Health and Addiction said in its August 2010 report, fully half of Canadian offenders reported substance abuse as a cause of their offence and 36 percent of those in custody in Ontario suffered from some form of mental illness.

  Yet, “far too many Ontarians experience their first contact with the mental health system through the justice system,” the committee said. “These are obvious signs that mental health and addiction care needs to be transformed in Ontario.”

  The lessons I have learned through legal and political experience and personal calamity support that argument. Darcy Sheppard’s story is the only exhibit needed to prove my case. In a nutshell, our justice system ought to have early on recognized that young Darcy needed help from the health-care system far more than he needed warrants, countless court appearances, and dead time in the bucket.

  The criminal justice system is blind to addictions, even though that’s what drives most crimes. Police, prosecutors, judges, corrections officials, and those accountable for the system—politicians like me in a former life—are often oblivious, willfully blind, or simply ignorant of the role that drugs, alcohol, or mental illness plays in a crime.

  For Sheppard was like most in the criminal justice system who wind up in the back of a squad car drunk or stoned, thanks to intoxicated violence, or intoxicated driving; or accused of a property or financial crime, the motivation of which was feeding an addiction, or paying its debts. This group of people might be thought of as the addict-a
ccused. It is not too difficult for them to self-identify, nor for the police or correctional authority to verify that identification. These people populate the criminal justice system at levels best described as epidemic.

  The Canadian Centre on Substance Abuse states simply that “the majority of offenders show evidence of some kind of substance abuse problem.” How big a majority? In my view, getting the exact number is splitting hairs. The point is that most of the people in the criminal justice system share one thing: it’s not the colour of their hair, or where they’re from, or whether they were dropped as a child, or whether their high school was public or private, or even their upbringing. The one thing that most offenders share is a substance abuse problem.

  In Saskatchewan, up to 93 percent of provincial offenders are identified as having a substance abuse problem. Approximately 80 percent of prisoners in prisons in England and Wales have a substance abuse problem. An assessment of the entire prison population in Maine found that almost 90 percent of prisoners had a substance abuse problem. In New Zealand, 80 percent of offenders used alcohol or other drugs immediately prior to committing their most recent offence(s).

  In fact, if all these addict-accused were treated differently than those not in this category, there wouldn’t be much left for the criminal justice system to do. Substance abuse fuels the criminal justice system like smoking fuels lung cancer. Or, more to the point, addiction is to the justice system what lung cancer is to health care: chronic, expensive, and screaming out for prevention over treatment. The difference, of course, is that addiction treatment is the prevention; the treated alcoholic has a good chance of staying sober, which means all those costs of his addiction disappear upon achieving sobriety. It is as if there were an antidote that actually cured lung cancer, provided that the patient didn’t ever smoke again. Wouldn’t the health-care system, on behalf of the taxpayer, want to get a hold of that antidote?

  I am personally accountable for many of these shortcomings, to be sure. I could have done more, I could have done better. After all, I was an MPP for a decade, in the provincial Cabinet for six years, four as Attorney General, literally accountable for the justice system in my home province. Consider my A.-G. duties, helpfully set forth in a statute. The breadth of these duties was daunting and inspiring for me when I first read them: “The Attorney General, (a) is the Law Officer of the Executive Council; (b) shall see that the administration of public affairs is in accordance with the law; (c) shall superintend all matters connected with the administration of justice in Ontario; … (e) shall advise the Government upon all matters of law connected with legislative enactments and upon all matters of law referred to him or her by the Government; (f) shall advise the Government upon all matters of a legislative nature and superintend all Government measures of a legislative nature; (g) shall advise the heads of the ministries and agencies of Government upon all matters of law connected with such ministries and agencies; (h) shall conduct and regulate all litigation for and against the Crown or any ministry or agency of Government in respect of any subject within the authority or jurisdiction of the Legislature; (i) shall superintend all matters connected with judicial offices.”

  Pretty serious job description.

  Looking back, I have considered how I “superintend[ed] all matters connected with the administration of justice in Ontario” with respect to addiction and mental health treatment. I have re-thought my approach and think that I had it backwards.

  Our approach perpetuated a justice system too often blind to the addicts and mentally ill people within the system. On the one hand, we expanded the niches within the system that actually addressed the unwellness, through a hybrid of health care and justice. Thus we expanded significantly the Drug Court in Ontario, and helped start a Mental Health Court. On the other hand, the vast majority of those addicts and mentally ill in the system were treated solely by blunt penal tools, without regard to what was often keeping them in a life of crime.

  A Drug Court, on the other hand, provides court-supervised treatment for individuals addicted to cocaine and/or opiates who have been charged with possession of, or trafficking in, small quantities of crack/cocaine or heroin, or with property offences in order to support their drug use, or with prostitution-related offences. The participants, heretofore criminal defendants, participate in what amounts to judicially supervised addiction treatment. Upon successful completion of the program, which lasts approximately one year, participants receive a non-custodial sentence, rather than incarceration. The latest studies show that 97 percent of Drug Court graduates do not return to the criminal justice system. Ponder that for a moment.

  I spoke as Attorney General at one of these Drug Court “graduations,” full of family and friends in the courtroom. People cheered and clapped. I was in my early months of sobriety, making it a pretty emotional moment for me. Thankfully, our government had made significant budget increases and expansions of the Drug Court and its jurisdiction. I’d also appointed the veteran prosecutor for the Drug Court, Mr. Justice KofiBarnes, to the Ontario Court of Justice; it was my first appointment.

  The niche courts are excellent and, like niche courts in the U.S., have had significant success in lowering recidivism. The most rigorous and conservative scientific estimates have all concluded that drug courts significantly reduce crime by as much as 35 percent compared to imprisonment. In addition, drug courts produce US$2.21–US$3.36 in avoided criminal justice benefits for every US$1.00 spent on them. Up to US$12.00 (per US$1.00 invested) is saved by the community on reduced emergency room visits and other medical care, foster care, and victimization costs such as property loss. Similar figures are found in Canada.

  However, these niche courts are just that—exceptions within the broader system that is blind to addiction and mental health. If someone is fortunate enough to have the opportunity to enter a Drug Court or Mental Health Court, then their prospects are improved. But what about the vast majority of the accused and convicted people in the system?

  An unintended effect of the niche courts is to create the illusion that the criminal justice system is doing something about addiction and mental health, when in fact it is barely paying lip service to the issue. The annual federal budget for Drug Courts in Canada, for six cities, is $3.5 million, or 0.027 percent of Canada’s overall budget spent on criminal justice services.* Much more is spent by the federal government on upgrading luggage security at airports than on rehabilitating addicts via Drug Courts.†

  Nor do the Drug Courts address the alcoholic in the system, or the addict who committed a violent crime, or someone with mental health issues. In other words, the vast, vast majority of those in the criminal justice system, either being accused or serving a sentence, do not benefit from the Drug Court approach.

  The solution is to adopt the Drug Court approach to the entire system, without limitation. This requires enormous political will, and I do note that I did not do it whilst I was there. I thought that the Drug Court expansions that we initiated when I was Attorney General were a good effort, when in fact it was window dressing at best.

  The comprehensive solution requires a social services worker in every courtroom, as is done in the Midtown Manhattan Street Court, which transformed that neighbourhood entirely. In that court, the social worker recommends to the judge the best next step for an accused, based upon a professional diagnosis. If the accused broke a window, and he’s an addict, then there is a common-sense response from the judge: restitution for the broken window, and treatment for the addiction. That way, the justice system is part of the solution: addressing the harm done to the neighbourhood (the broken window is fixed) and the individual ailment (the addiction). If the addict gets treatment, the chances of that individual breaking another window decline dramatically. All of this is possible because the Midtown Manhattan Street Court is very alert to whether an accused is a substance abuser, and responds accordingly.

  However, if the justice system is blind to addictions, then the addict-a
ccused faces an all-or-nothing, lose-lose choice: deny any responsibility, perhaps evade a conviction, and go back on the street to cause more harm; the substance abuse ignored by the judge and untreated by the system. Or, the accused is convicted and faces only a financial penalty or some jail time, wherein the substance abuse likely worsens.

  Even more important, a comprehensive solution requires training for police, prosecutors, and judges that they are currently not getting. Police and prosecutors must triage the accused in the system, putting them into different streams. If police and/or prosecutor sees alcoholism or addiction or mental health as the root of the defendant’s alleged evil, then they go into one of those criminal justice streams. It is critical, in my view, that the accused or convicted themselves be afforded the opportunity to avail themselves of treatment, and to create an incentive for them to do so. Only the willing need apply.

  Such an approach ought not to be “soft” on crime. It would be wrongheaded if culpability were ignored in all this. I’ve been taught that the addict-accused ought to take responsibility for any harm done, for the consequences of addicted behaviour. This is an important part of substance abuse recovery—accepting one’s role in harm, making amends, and then moving on. The guilt and shame carried around by some makes crime and substance abuse an even more toxic combination for the abuser. The only way out is recovery, and recovery typically requires a measure of redemption—action taken to right a wrong as best possible.

  Accordingly, it’s common for recovering alcoholics and addicts to attempt to provide restitution, or otherwise reconcile with those harmed by the consequences of an alcoholic life. Fraud, tax evasion, theft—these brave people come forward to make amends for past harm done, usually in cold cases long forgotten by the victims or the authorities.

  In short, the justice system can continue its traditional role of finding culpability and fashioning a sentence, but all that ought to treat substance abuse as relevant. Most importantly, however, is that the justice system goes further, to work with our health-care system to help the substance abuser recover. To help that person get better.