Addicts, mentally ill need help, not jail time

In a rare political statement, B.C.'s highest court says system is clogged with out-of-control repeat offenders -- with no resources to aid them...

The B.C. Court of Appeal issued a plea to Victoria on Friday to improve treatment resources for mentally ill and addicted recidivists who are clotting up the criminal legal system.

At the end of a unanimous decision, three justices -- including Chief Justice Lance Finch -- concluded a lower court judge had difficulty sentencing a 27-year-old repeat offender because there was no medical help available.

They said the case was emblematic.

"This court can do no more than to acknowledge the lack of resources and urge our legislators to respond to the need," Justice Catherine Anne Ryan wrote for the panel.

It was a rare politically tinged comment from the province's highest bench and it touched a hot-button issue.

Mentally ill and addicted repeat offenders clog the system and what to do about them is a Gordian knot.

More jail time -- the solution some propose, doesn't help this population, in my view, because they're not bent, they're broken. These people aren't making criminal choices, they're out of control.

This judgment leans in the same direction.

Justice Ryan said this case "demonstrated the difficulty of sentencing the mentally ill offender, especially those who are also addicted to alcohol and/or drugs."

She said the courts are being asked to deal with offenders who cannot be controlled via ordinary probation orders because treatment services are not available.

As a result, they are released only to reoffend because they haven't received any help with their underlying problems.

Consider this case.

Over the course of six weeks, would-be Victoria artist Jonah Jae Donato committed six crimes culminating in a robbery.

On March 9, he pleaded guilty and was sentenced to a total of just over seven months' imprisonment to be followed by two years' probation.

At the time, the judge duly warned Donato that when he was released on probation he was to be of good behaviour, refrain from drugs and alcohol and to get treatment.

"Without treatment to back up the admonitions, such orders will often do the opposite to what is intended -- create a simple path to reoffending," Justice Ryan noted.

"Apparently, no treatment facilities were available to Mr. Donato at the time he was sentenced."

Which meant he remained on the legal system's treadmill.

Donato's first crime in this spree was spray-painting an outside wall of the Odeon Theatre in Victoria on Dec. 5, 2006.

He was drunk and told the officers he was trying to convey his message that the streets were dangerous. He was arrested for mischief and released.

On Dec. 10, Donato spray-painted an office building. He was drunk.

A private security guard stopped him on Jan. 11, stealing a bottle of beer from a downtown liquor store.

Donato was arrested and released on a promise to appear and not consume alcohol while awaiting trial.

On Jan. 12, he was found unconscious in the washroom of a local Blenz Coffee shop, a bottle of Drambuie by his side.

Five days later, he was caught bingeing on the street.

Lastly in this string of offences, on Jan. 18 wearing something resembling a veil, Donato drunkenly demanded money from an adult video store clerk.

The clerk handed him $20 and pushed a silent alarm.

Donato was in another part of the store stuffing merchandise into his jacket pocket when police arrived.

None of this behaviour should have been surprising.

Donato has a related record of eight thefts, fraud, assault, and mischief.

All of those crimes were similarly alcohol-fueled escapades and were dealt with in 2006 -- the longest sentence he received amounted to 30 days' incarceration followed by probation for a year. He was on probation when these offences were committed.

A psychiatric report filed with the court says Donato is afflicted with schizoaffective disorder and polysubstance abuse.

He has been admitted and received psychiatric treatment numerous times. Yet he is resistant to counselling and medication.

Released from jail on Sept. 17, Donato quickly breached his probation, pleaded guilty and on Oct. 1 was sentenced to 30 days.

He was released Oct. 20, but 10 days later was charged with three further breaches of probation along with theft under $5,000 and possession of stolen property.

He was released Nov. 1, having promised to admit himself to the Seven Oaks Mental Health Facility where a bed is now available.

"Mr. Donato's rehabilitation will not take place unless he receives treatment to address his mental health and addiction issues that give rise to his anti-social behaviour," Justice Ryan said.

"Fortuitously, the Seven Oaks Mental Health Facility has a bed for Mr. Donato and he agreed, pursuant to a bail order imposed Nov. 1, to take treatment at the facility... The conditions imposed by the sentencing judge, now tied to treatment, may provide the rehabilitative effect for which they were intended."

Donato was before the appeal court asking to have those conditions relaxed. And the court obviously had great sympathy.

He said he couldn't live without a drink and Justice Ryan said that was probably realistic.

His chances of rehabilitation had improved, she said, so the court would amend the proviso that he "refrain absolutely from ingesting alcohol or non-prescription drugs to a condition that requires that he not be found intoxicated in public."

Donato wanted access to an area of downtown Victoria from which he is currently prohibited -- "the south side of Fort Street to the south, the east side of Quadra Street to the east, the north side of Herald Street to the north, and the west side of Wharf Street to the west."

The appeal panel said that provision would remain in place because the area is where his crimes took place and offers easy access to illegal drugs and alcohol.

"If he needs to go to the area he can do so with the permission of his probation officer," Justice Ryan concluded.

Donato also wanted the ban on possessing "any spray paints, marking pens or any other items that could be used to create 'graffiti'" eased.

The panel varied that condition to say "he not carry spray paint in public."

Ian Mulgrew, Vancouver Sun

Published: Monday, November 26, 2007