The provinces and federal government operate a mixed bag of electronic monitoring programs. The programs vary in significant respects. First, let’s summarize which governments operate programs, what type of monitoring they use and whether the monitoring is used pre-conviction, post-conviction, or both.
“GPS” refers to an ankle bracelet system that uses the Global Positioning System to continuously track the wearer; “RF” refers to an ankle bracelet system that uses a radio-frequency “tether” to monitor whether the wearer is home or not home; “pre-conviction” refers to bail, also known as pre-trial release or judicial interim release; and “post-conviction” refers to the various forms of community supervision that can follow a conviction, such as conditional sentence orders, temporary absences, probation and/or parole.
- BC – GPS, pre- and post-conviction;
- Alberta – no program;
- Saskatchewan – RF, pre- and post-conviction;
- Manitoba – no program;
- Ontario – RF, post-conviction;
- Quebec – no program;
- Nova Scotia – GPS, post-conviction ;
- New Brunswick – RF and GPS, post-conviction;
- PEI – GPS, post-conviction;
- Newfoundland and Labrador – GPS, post-conviction (pilot);
- Nunavut – no program;
- NWT – no program;
- Yukon – no program; and
- Correctional Service of Canada – GPS, post-conviction (the Canada Border Services Agency also uses GPS bracelets borrowed from CSC for immigration matters).
How a program is organized can have a significant impact on people
The government-operated programs that do exist vary in their policy objectives and parameters such as eligibility criteria and decision-making roles and processes. All of these differences have important implications for people charged with and convicted of criminal offences. Having the right technology available at the right stage of the criminal justice process can determine whether a person is held in remand custody or released on bail, whether they are able to obtain a conditional sentence instead of serving jail time, and, at the end of a custodial sentence, whether they are released earlier than they otherwise would be.
Difficult choices and differing perceptions
Electronic monitoring presents a number of challenges for governments when they are trying to decide whether and when to use it, which lead them to reach very different conclusions, and help to explain the variations we see in programming decisions. For example, at the same time that BC, Newfoundland and Labrador, PEI and New Brunswick were deciding to move forward with new programs, Alberta and Manitoba were deciding to discontinue theirs.
RSC’s non-government programs help fill the gaps
Recovery Science (RSC) operates Canada’s largest non-government electronic monitoring program. RSC offers programs using GPS, RF, and alcohol monitoring technologies, available both pre-conviction and post-conviction. RSC’s programs help fill the many gaps created when a suitable government program is not available.
Our GPS monitoring program has helped over 800 people obtain bail, with most of those being in Ontario. We know there are many more people in remand custody across the country who, if they, their families, and/or their lawyers were aware of our programs, would be able to put together a plan of supervision that could meet the legal tests for bail. In smaller numbers, our programs have helped people obtain conditional sentences, but with the concept proven, like bail, we know there are many more people across Canada who could serve their sentence in the community instead of in jail with the appropriate form of monitoring as part of their plan.
Future posts will take a closer look at the variations among the government-run electronic monitoring programs, the implications of those differences, and provide examples of how RSC’s programs can help when a government program is not available.
Since 2010, about 30 people facing criminal charges involving alcohol have achieved a better outcome by participating in RSC’s continuous alcohol monitoring programs. These cases have involved diverse factual situations and charges ranging from repeated instances of mischief to impaired driving causing death to murder. We believe there are many more cases in Canada where our alcohol monitoring programs can help.
Alcohol monitoring can help in a number of ways. The first thing that may come to mind for many people is that monitoring would be used in combination with a condition that the person abstain from consuming alcohol. This is certainly one way that monitoring can be used, but there are others which may not be as immediately apparent.
Evidence of sobriety
For example, in making submissions in support of a shorter jail sentence or a conditional sentence that can be served in the community, we often hear defence counsel advise the court that their client has been sober for some period of time. In many cases, the person’s self-report is the only evidence available to support this submission. Imagine if defence counsel could say to the court, “my client has been tested every thirty minutes, 24/7, for the past 6 months, and I have a report showing that every one of those tests was negative for alcohol consumption.” This is exactly what participating in RSC’s continuous alcohol monitoring program can make possible.
A person with a history of criminal charges associated with alcohol can leave the court in a quandary when considering an application for bail or a proposal for a conditional sentence. The court may see prohibiting the person from consuming alcohol as the only way to reduce the risk that they will get into trouble in the community, but may lack confidence that they will be able to abstain. In such cases, including participation in RSC’s continuous alcohol monitoring program as part of the plan of supervision can tip the balance in favour of the person being released or allowed to serve their sentence in the community. This is because the monitoring (a) can help the person abstain, because they know that, if they drink, it will be reported and (b) gives the court the comfort of knowing that, if the person does begin to drink, they won’t be able to do so repeatedly before anyone knows about it, because it will be detected and reported the first time they drink.
In some cases, the court’s quandary is even more difficult, because the court is concerned that the person simply won’t be able to abstain from consuming alcohol and that a court order requiring them to abstain will just lead to inevitable breach charges. The court may then be left with the impression that it has only two options, neither of which seems to satisfactorily serve the interests of justice – to keep the person in jail or to let them be in the community without a requirement that they abstain from alcohol. This is where RSC’s Soberleave program can help. With Soberleave, we combine alcohol monitoring with location monitoring, enabling a third option – the person who is dependent on alcohol can consume it, but to control the risk that creates, they are only permitted to consume alcohol at home and must be alcohol-free when outside the home.
Real Life Examples
While the number of cases in which RSC alcohol monitoring programs is still relatively small, the human stories involved have been quite profound. For example, in our very first case, a man with a history of alcohol-related offences, including assaults, mischief, and breaches, had been denied bail due to concerns that “if left unchecked and simply on the strength of a promise, he would lapse back to alcohol abuse” and commit more offences. With a new plan that included participation in RSC’s SCRAM continuous alcohol monitoring program, he was granted pre-trial release. This allowed him to be with his wife and children instead of in jail while awaiting trial, while ensuring that if he began to drink, the court would know.
Another young man faced charges of aggravated assault and attempted murder arising from multiple incidents during which he was intoxicated. The court noted that when he was intoxicated and experiencing jealousy, he lost control. His lawyers helped him bring together a plan of supervision that included residential treatment and dual GPS/alcohol monitoring, which satisfied the court that he could be released on bail so that he could get the help he needed for his addictions and mental health issues while awaiting trial, while ensuring detection if he did not comply with his conditions.
In another case, a man charged with impaired driving, and a record that included four previous convictions for impaired driving and convictions for refusing to provide a breath sample and driving while prohibited, had been denied bail. With a new plan that included participation in RSC’s SCRAM continuous alcohol monitoring program, he was granted pre-trial release. At his sentencing, the record of eight months sobriety he had established through the CAM program’s 48 tests per day helped him obtain a conditional sentence. His wife told the court that the program had helped him because he knew he could no longer hide his drinking, which led to him not drinking and to dramatic improvements in his relationships with her and their children.
These are just a few examples. In every case involving alcohol abuse and serious criminal charges, everyone involved is experiencing very difficult challenges, including the accused, the victim, their families, and the professionals trying to support them and see that the interests of justice are served. In many cases, alcohol monitoring may be able to help contribute to better outcomes.
RSC’s alcohol monitoring programs include continuous alcohol monitoring with the SCRAM ankle bracelet with tests every 30 minutes 24/7, and remote breath testing on a schedule of multiple tests per day.
While GPS monitoring has become an accepted part of the bail system, it’s important to weigh everything before deciding whether and when to propose it.
Case law has established the ladder principle, which is that the conditions imposed as part of a bail should be the least onerous ones necessary to meet the legal tests. At the same time, in difficult cases, the accused risks being detained if they don’t present a plan of supervision that is strong enough.
Several risk factors
Courts consider several risk factors, including that you will flee the jurisdiction or not show up for court, that you will commit further offences that endanger the public or interfere with the administration of justice — by intimidating a witness, for example — or that your release would undermine the public’s confidence in the administration of justice.
Judges can impose a number of conditions to try to mitigate those risks. They can order house arrest or a curfew, and prohibit the use of alcohol, drugs, cellphones or the internet.
RSC provides a variety of monitoring options that are used in criminal and family court applications, including GPS and alcohol monitoring.
Strengthening bail plans
Some accused persons will propose wearing a GPS ankle bracelet when they believe their bail plan needs to be strengthened in order to persuade the court that they can be released.
Being required to wear a GPS ankle bracelet is very intrusive and expensive, so you wouldn’t want to propose it if you thought the court would release you without it. Courts do sometimes release people who have agreed to GPS monitoring without requiring it, but there is always a risk that if you propose it, the court will order it — even if you might have been released without it.
Some people decide not to propose GPS monitoring at an initial bail hearing. Then, if they aren’t granted bail, they will add it later when asking a higher court to review the decision to detain them. There is a risk in doing this because, unless the original court made a legal error, the detention decision can only be changed if there has been a material change, such as some charges being dropped or new sureties being available. Some courts have found that adding GPS monitoring to a plan is a material change, while others have found that it is not.
RSC and GPS monitoring
When finding that GPS monitoring is not a material change, some courts have cited the fact that the accused could have presented it at the initial bail hearing but didn’t. Others have found that adding GPS monitoring at the review stage is a material change even though it could have been presented at the initial hearing. These different approaches mean that defense counsel need to be thoroughly familiar with the case law when advising their clients.
The bottom line is that it’s important for defense counsel to give thorough advice and for accused persons and their families to carefully consider whether to include GPS monitoring in their original bail plan or hold it in reserve to be proposed at a review hearing if they are detained.
When its GPS monitoring is being considered, RSC provides comprehensive written material explaining the program, which can be submitted to the court on its own or in addition to an RSC witness testifying. RSC is also able to provide defense counsel with helpful references to the case law on material change and other legal issues that may apply in specific cases.