28 Seconds

by Michael Bryant

  There is no point reconstructing what Darcy Sheppard’s life might have been like had he been qualified to voluntarily participate in a Drug Court. Or if the Toronto Police Service officers on the scene at George Street in the early evening of August 31, 2009, speaking with Sheppard less than an hour before his death, had not allowed him to drive off on his bike, badly intoxicated. Regardless of whether they made a grave error, my question is whether there is a systemic issue with police correctly identifying substance abusers and having tools to respond appropriately.

  “At the time, I believe a good decision was made,” Staff Sergeant John Spanton told the Toronto Star. “In terms of his sobriety, the officers made the decision that he was okay. And I would stand behind that.”

  “I asked for the police to give him a ride home,” Misty Bailey, Sheppard’s girlfriend, told a Toronto Star journalist soon after he died. Another published report said that Sheppard’s friends “begged” the police to allow him to stay at their place, rather than hit the streets drunk.

  “They [the police] said ‘No, he’s going to [take] himself home,’” Misty said.

  Under questioning by reporters, one Toronto Police Service constable snarled that they weren’t a taxi service, after all.

  Perhaps not, but there are street workers and social service workers that can work with police to intervene and direct someone like Darcy Sheppard to a detox centre, or otherwise to a safe haven. Or police ought to be trained to manage substance abuse as if it’s an ailment, rather than a nuisance to be shooed away down the street.

  In Canada, government jurisdictions turn out to be aligned for a comprehensive response to substance abuse within the justice system. Health care and the administration of justice are both provincial matters. I have little doubt that had some of my cabinet colleagues and I stayed behind for a few cabinet meetings, for a few minutes each time, we could have cobbled together a coordinated approach to detoxifying and potentially treating the addict-accused.

  There are a number of ways to do it, but it fundamentally requires a hybrid approach: health and justice officials collaborating on a patient/accused, where there is a willingness by the addict to admit and address the substance abuse. This would not displace the entire penal system. Obviously, people ought to be punished by incarceration for serious crimes. Our Canadian democracy will not tolerate anything less.

  But rehabilitation is also a purpose of the corrections system. It’s called correctional, after all. And that work on recovery from an addiction needs to begin as soon as possible for the accused addict. Those detained pending trial are innocent until proven guilty, which means that treatment for those people today is practically nil. And yet most of the provincial prison population are not people serving their sentence, but accused detained pending trial (which ultimately can be used as a credit against a sentence, at a rate of two-to-one or sometimes more). Opening up rooms for recovery to all addicts in contact with the criminal justice system, based on their willingness rather than their alleged or proven offence, would generate opportunities for people to get better, to change their lives, for the better of the many.

  Indeed, treatment or recovery for the addict, accused or convicted, innocent or guilty, requires primarily a willingness. Twelve-step groups are permitted to engage with prisoners today (at no cost), but this availability is too random and only for a small proportion of the accused/convicted addicted.

  What about the inherent costs of all this? I’m talking about reorienting the criminal justice system into an addiction recovery system of hope, less than a conviction machine. This changes the way that police are trained, prosecutors are trained, and judges are oriented in their courts. It may not require any legislative change, other than using a statute as a policy directive. There would be howls of protest until it all started happening, at which point the common sense of treating the disease rather than its symptoms becomes self-evident.

  Is this affordable? I’m not going to offer up the typical answer that we can’t afford not to. Or, that the savings from treating the addicted will offset the treatment costs. Suffice it to say, governments hear this argument practically every day, and it rarely cuts the mustard. The parliamentary system requires the executive to justify its spending of tax dollars, and that means budgets that, line by line, account for dollars spent and services delivered. Funding of these programs requires a reorienting of existing programs, expansion of some niche programs, and that all must be budgeted.

  There is more than one way to fund this. The massive distillery, beer, and wine industry is a good place to start. Just as tobacco companies have increasingly had to foot the bill for societal costs, affecting their profit margins, the time will come when the filthy lucre has its reckoning. Those profits are huge. Anheuser-Busch InBev N.V. is a Belgian–Brazilian publicly traded company, based in Leuven, Belgium. It is the largest global brewer with nearly 25 percent global market share. Profits for 2010 exceeded US$4 billion. Most of those profits are found in North America.

  Meanwhile, about half of the alcohol industry’s profits come from underage drinkers and alcoholics. In 2001, a minimum of $22.5 billion (17.5 percent) of consumer expenditures for alcohol came from underage drinking and $25.8 billion (20.1 percent) came from adult pathological drinking (meeting clinical criteria for alcohol abuse or dependence). The combined value of underage and pathological drinking was at least $48.3 billion (37.5 percent) and, as an alternative analysis showed, as much as $62.9 billion (48.8 percent).*

  Whether through taxation (of the producers/distributors, not just consumers!), class action, or industry-sponsored programming, those who profit from a legal substance that leads to illegal and harmful activity ought to pay their fair share for the ill effects of their products. (Of course, one of the worst offenders is the provinces themselves, most of which own the liquor stores and all the gaming profits. Having negotiated a multi-billion-dollar gaming deal with First Nations on behalf of the province of Ontario, I’ve seen the possibilities regarding directed revenue sources toward a shared objective.)

  The costs of treatment, meanwhile, are less than you’d think. The world’s largest 12-step recovery program, and its offshoots, accepts no dues or fees. There are no officials, no official leaders, no trained professionals necessary for a meeting to occur, or for recovery to take place. There are expenses for rentals of space and some coffee, all of which are covered by each group through a voluntary passing of the hat.*

  Obviously staffing and infrastructure are needed for a government to undertake a comprehensive approach, but my point is that the treatment itself, the miracle work, is not necessarily a cost barrier. Only the willing need apply, but there is no wait list, and no fees charged to the willing, for local 12-step programs. Some people find that treatment centres, some non-profit, some for-profit, are needed before recovery is possible. This is particularly true for adolescents facing substance abuse.

  Regarding the latter, in 2006 I learned about the Pine River Institute when its founder and CEO, Karen Minden, met me in my constituency office. I was her MPP and represented her last resort to save Pine River Institute from a critical funding shortage.

  The Institute is a residential treatment centre located in a peaceful, forested area outside of Toronto. It’s for 13- to 19-year-olds struggling with mental health issues, and specifically addictive behaviours. They learn math skills and life skills side-by-side. There’s nothing like it in Ontario, and few existing in North America.

  As a newly sober MPP, I was particularly driven to assist the Institute. In what amounts to a bureaucratic miracle, we found funding for the Pine River Institute in the Victims’ Justice Fund of the Ministry of the Attorney General. I remained an ally in government, as more members of Cabinet came to see this remarkable place help young people save themselves from their demons. After I left politics, I joined the (volunteer) Board of Directors to continue service to the worthy cause.

  At some point after first meeting with Karen Minden a
nd her husband, the Board’s chair at the time, I found myself up at the Institute getting a tour, and having lunch with the kids. I’d privately asked Karen if it were possible to meet with some kids, to share with them my story, as a recovering alcoholic, and that happened in a bright room with large, comfy chairs, pulled together in a circle.

  But then that miraculous thing happened that I’d eventually learn was commonplace: I was learning from them, not the other way around. As we went around the room to share our experiences, each of these young men and women, all about 17 years old, tried to bolster my recovery and congratulate me on achieving sobriety.

  Years later, just after the accident, Karen Minden telephoned me to offer her support and comfort.

  “We have some young Darcy Sheppards here at Pine River these days,” she said, and in the ensuing silence was a prayer for those kids, and for the adolescent Darcy that received all the love in the world from Allan Sheppard, but no doubt could have benefitted from a Pine River Institute had it existed in his time.

  But I don’t just see Darcy Sheppard in the kids at Pine River, or sitting across from me in a 12-step meeting, leg quivering, eyes darting, jaw clenched. I see him everywhere, and in many people, in some dreams and nightmares. I see him in those camo-green pants, gesticulating outside bars and under street lights, on streets city-dirty and on sidewalks surburban-clean. I see him everywhere but mostly in the shadows. He was a soul, as Claudel would put it—a soul with holy aspirations, which, deprived of daylight, worshipped in the night.

  * JustResearch. (2003). No. 12. Ottawa: Department of Justice Canada. http://canada.justice.gc.ca.

  † The 2012 budget allocates “$21 Million over Five Years to Upgrade Baggage Scanning Equipment at Canadian Airports.” Government of Canada, Budget Papers, Chapter 4.2: Supporting Families and Communities (June 6, 2011). www.budget.gc.ca/2011/plan/chap4b-eng.html.

  * The Economic Value of Underage Drinking and Adult Excessive Drinking to the Alcohol Industry. (2003). New York: The National Center on Addiction and Substance Abuse (CASA) at Columbia University.

  * Alexandre B. Laudet, PhD, “The Impact of Alcoholics Anonymous on Other Substance Abuse Related Twelve Step Programs,” Recent Dev Alcohol. 2008. 18: 71–89.

  SEVENTEEN

  Paying for It

  The reforms regarding addictions and the justice system may or may not have altered the fate of Darcy Sheppard. That is not for me to say.

  What I can discuss—and would be remiss in not addressing—is my own experience with the costs of a legal defence. After all, it’s not every day that the person accountable for the criminal justice system gets charged by the system, with its inherent fiscal costs.

  Criminal legal defence costs.

  Obviously, the vast majority of the population does not have hundreds of thousands of dollars for legal fees at their disposal. Nor did I.

  This dilemma resembles the health-care crisis for millions of Americans when suddenly faced with the enormous cost of caring for themselves, or loved ones (50 million Americans, or 16 percent, are uninsured; over 40 percent of personal bankruptcies are attributable to health costs). As with the health-care system in the U.S., where the government spends more per person than any nation in the world, the answer to this dilemma for the criminal justice system in Canada and the U.S. is not simply more government funding.

  The Province of Ontario, for example, already finances legal aid for the impoverished at a rate that vastly exceeds most jurisdictions (almost $300 million annually, or the cost of 20,000 new post-secondary spaces in our colleges and universities). People aren’t willing to spend a lot more on taxes to fund criminal legal defences, for a variety of reasons. People are innocent until proven guilty, but I bet you’d balk at personally subsidizing the legal fees of the Hells Angels—not because they’re presumed guilty, but rather because we live in a democracy. It’s just not feasible to imagine that there is a magic bullet for this problem.

  Universal coverage for criminal justice defence costs is fiscally a non-starter. Nor is the status quo acceptable to those who consider, even in passing, the unaffordability of our legal system. Nor is the answer simply more tax dollars. I have now personally lived through this public policy issue, as a defendant, and I’ve lived through the administration of the justice system, as Attorney General. Here are my thoughts.

  The issue boils down to the assumption of risks and who pays for what. Currently, our governments, on behalf of taxpayers, make zero contribution to the risk that one of their constituents (unless impoverished) will be confronted by the criminal justice system. Every day you take the risk that you’ll be hit with legal bills in the hundreds of thousands of dollars. In hindsight, I wish that I’d insured myself against this risk.

  The answer, I think, lies somewhere in that idea of coinsurance or copayment, not unlike the approach taken by the United States when it comes to health care—a similarly imperfect approach in circumstances where universal coverage is unaffordable or just unrealistic. Governments could use their legal aid budget to provide incentives to the private insurance industry, on behalf of taxpayers, to render insurance products for people who choose to insure themselves against this risk. I’m convinced that the amount invested by governments in legal aid every year could be better spent on such a coinsurance or copayment system, governed by a means test. Therefore, Conrad Black would have none of his legal fee insurance—which, by the way, it was reported he had via board directors’ liability insurance*—subsidized by taxpayers, whereas the impoverished would have all their insurance covered, with the middle class falling in between.

  Such an insurance system would still involve democratic, capitalist choices. For example, I personally chose to take the Marie Henein approach, in circumstances where I knew I was innocent and concluded that a trial was unnecessary. That was an expensive choice. And let me be clear: any financial manager would have told me that I could not afford that choice. I got a second mortgage, in essence (whereas Dalton McGuinty got a second mortgage to defray the costs of his Ontario Liberal leadership campaign in the 1990s, the latest economic crisis turned on personal and institutional choices about financial leverage and risk management—that is, people make judgments about risk all the time, and have to live with the consequences). But one need not pursue the Cadillac defence. A solid defence can be obtained for much less, not unlike the auto insurance system in Ontario and many other provinces, where civil litigation and damages are covered by auto insurance, up to a point.

  I wish I’d thought of this idea when I was Attorney General, but I am very comfortable defending our record on access to justice. We legalized and regulated paralegals, to allow for more affordable legal services alternatives to a lawyer. We provided the largest increases to the legal aid budget since the heady times of Ian Scott. We provided the largest funding increases to sexual assault centres (10 percent) that they’d ever seen. And we increased the complement of prosecutors and judges (without which the system slows down and costs increase) at an unprecedented rate. But I wish we’d done more.

  Prosecutors, not police, should lay criminal charges.

  The foregoing reforms address addiction within the system, but what of the system itself? People often ask me what I’ve learned, as a former Attorney General, from my inside look at how the system works.

  Truth be told, one cannot build a justice system around how to charge and prosecute a former Attorney General. So I don’t pretend that my experience is typical of anything. That said, I did experience, personally and financially, what it’s like when the justice system has you in its crosshairs. Plus, I’ve attended the University of Marie Henein, with whom I had many long conversations about how the system really works. And this experience has changed the perspective of this former Attorney General.

  As Attorney General, I was very familiar with the back end of the justice system: where the final decisions were made—to prosecute, to withdraw charges, to find guilty, to uphold or reverse on appeal. I go
t to know prosecutors and judges from across the province, at all levels of experience and jurisdiction. From rookie Crown attorneys to the chief justices. I also got to know a number of police chiefs, for whom I have great respect.

  It’s not the back end of the justice system that I’m worried about. It’s the front end: where decisions get made that sometimes have to be fixed at the back end. Along the way, from those early decisions of the police to final outcome, it can be a living hell too easily dismissed for those fortunate enough not to have lived it first-hand. I have come to see, first-hand, that the criminal justice system can be a juggernaut, with a natural path inclined toward a finding of guilt. Once the wheels are set in motion, criminal charges take on a momentum that easily overwhelms an accused. As Attorney General, I was not so naïve as to imagine that all agreements between Crown and defence (so-called plea bargains, as if all are a bargain) were driven simply by guilt or innocence. But I hadn’t realized, until I lived it, how steep is the path of least resistance to a finding of guilt. This does not bode well for the presumption of innocence.

  For those charged with a criminal offence, the police and some prosecutors appear to be conviction machines. They have checks and balances that allow for corrections of miscarriages of justice, after the fact, via appeals and similar procedures that allow for an impartial second look. But during an investigation and prosecution, the overall orientation of too many police officers is the pursuit of a criminal conviction. That’s their job, as they view it. One is theoretically innocent until proven guilty, but it doesn’t feel that way at all when you’re in it.

  So the weighing of evidence done by a trial judge ought not be an academic exercise. It requires an appreciation of what really happened on the ground. What was the orientation of a particular investigation and prosecution: skeptical investigation or a hunt for what is most damning? Is the accused a frequent flyer in the justice system, or is this their first foray? Are the police or prosecutors veterans or rookies? Is this the experienced Guns and Gangs Task Force or the Traffic Division? Does the investigation seem blasé or highly professional? Is anyone going through the motions here, or worse—overly eager for a conviction? Do the players really believe the accused to be innocent until proven guilty, or are they driving up their stats?