If alcohol-related concerns are unfounded, SCRAMx® lets the parent prove it more quickly and convincingly than is possible through urine testing, hair testing, or self-reports. SCRAMx® can also help in a number of ways when parents acknowledge an alcohol problem or when they deny it and risk management measures are needed until the issue is resolved.  

Here are some examples of how putting alcohol monitoring in place has made a difference in actual Ontario child protection cases:

• Children not apprehended;
• Overnight access reinstated;
• Access changed from supervised to unsupervised;
• A father who had been required to leave the home after an incident of domestic violence was permitted to resume living with the family;
• Alcohol abuse was eliminated as an issue of concern, allowing clinical work and litigation to focus on other issues;
• Alcohol abuse was confirmed as a concern and the parent agreed to attend treatment;
• A mother was permitted to resume breastfeeding;
• After the CAS agreed that monitoring was no longer required, the parent requested resumption of monitoring to assist her with relapse prevention.

Although many parents and child protection professionals immediately perceive monitoring’s constructive uses, some have a negative first reaction due to connotations they perceive in the use of an ankle bracelet as stigmatizing and/or overly intrusive. Dialogue and further reflection help overcome these concerns. When used to create an alternative to children being removed from a parent’s care, supervised access, twice-a-week observed urine screens, or protracted litigation, it becomes plain to most that monitoring is the least stigmatizing and intrusive of those choices.

In Canada, alcohol monitoring with SCRAMx® is provided by Recovery Science Corporation (RSC), who also provide alcohol monitoring, GPS and electronic monitoring in criminal cases. RSC’s staff include Peter Marshall, a lawyer, and Winnie Tan, a social worker, both with extensive experience in the child protection field. That experience means they bring more to the table than just a new piece of technology – they can help create and implement a monitoring plan that makes sense to everyone involved.

Since introducing SCRAMx® to Canada in 2010, RSC has provided monitoring for 20+ people in child protection cases in Toronto, York, Simcoe, Dufferin, Kawartha-Haliburton and Muskoka.

RSC welcomes inquiries from parents, workers, and their lawyers about how its alcohol monitoring can help in specific cases. Peter Marshall and Winnie Tan are also available to provide no-cost, CLE-eligible presentations at your firm, agency or local law association.

RSC’s GPS, radio-frequency, and alcohol monitoring programs have now been a part of over 25 plans of supervision that have helped defence counsel secure pre-trial release for their clients either with the Crown’s consent or following a contested bail hearing or bail review.

RSC’s services are available anywhere in Ontario, with release orders having so far been made by courts in Toronto, Brampton, Newmarket, Barrie, Milton, St. Catharines, Owen Sound and Parry Sound. The charges in RSC’s cases have ranged from drug and assault charges to murder.

Depending on the facts of the case, monitoring can help address the secondary and/or the primary grounds. Monitoring helps manage risk in cases where the court is likely to see house arrest, curfew, geographic restrictions or alcohol prohibitions as necessary, but is also likely to lack confidence that the accused will comply with those conditions.

RSC urges courts and stakeholders to see monitoring not as eliminating the risk of flight or further offences, but as a tool to help reduce those risks. RSC describes monitoring as reducing risk in two primary ways: by creating a disincentive to non-compliance, because the accused knows that non-compliant behaviour will be detected and reported; and by preventing the accused from being able to breach conditions repeatedly without being detected.

When analyzed this way, the first step in determining whether monitoring can make the difference between release and detention is to determine whether behavioural conditions can be crafted that, if complied with, would adequately address the risks identified by the evidence. If no behavioural conditions would be adequate, then monitoring won’t make the difference. If adequate conditions can be conceived, but risk remains high due to likely non-compliance, then the case may be ideally suited to the use of GPS, radio-frequency or alcohol monitoring.

Monitoring creates the opportunity to craft bail conditions that address the specific risk factors and circumstances of each case. For example, GPS means conditions that permit the accused to travel directly to and from work or school, or require the accused to stay away from certain addresses or neighbourhoods, can be effectively monitored.

In suitable cases, a more flexible form of house arrest can also be applied with GPS, such as a term requiring that the accused remain within 500 metres of a home address or remain within an area defined by specified boundaries, so that their movements are restricted but they are still able to carry on limited activities outside the home.

RSC uses the identical GPS technology that is used in California’s high-risk parolee program, which is the largest criminal justice GPS program in the U.S., with over 9,000 offenders monitored daily. RSC’s alcohol monitoring technology, SCRAMx®, is the identical technology used in the most innovative and successful DUI programs, such as South Dakota’s heralded 24/7 Sobriety Program, with over 270,000 individuals monitored to date.

RSC welcomes inquiries about how its GPS, radio-frequency or alcohol monitoring services can be integrated into a plan of supervision for any specific case. RSC president, Bracebridge lawyer Peter Marshall, is available to provide no-cost, CLE-eligible presentations at your firm, department, or local law association.

On September 24 in St. Catharines, in a bail review before Henderson J. of the Superior Court of Justice, the Court detained the accused on the tertiary ground, but commented that:

The electronic and GPS monitoring from Recovery Science in my view does add something substantial to the proposed plan. I accept that the provisions proposed by Recovery Science would provide a strong disincentive to breaching the terms of any release order….There is no doubt that the proposed plan today shores up the primary and the secondary grounds.

On September 25 and 26, following contested hearings at Toronto (Old City Hall), the Ontario Court of Justice granted release with our program’s GPS service monitoring the accused’s compliance with house arrest and geographic restrictions.

More information on these cases and our GPS service is available on request.

In R v D.L. (OCJ Huntsville; 20 September 2010), the accused pled guilty to charges of mischief under and breach of probation, both arising from an incident of domestic conflict that occurred while the accused was intoxicated by alcohol. The sentencing Court commented that the accused’s record, which included other alcohol-related offences, was such that it was “very difficult to look at a non-custodial sentence.” The Crown sought a 30-day sentence. Voluntarily, the accused had worn an alcohol monitoring ankle bracelet for about two months prior to his sentencing. A PSR reviewed the accused’s personal history and noted as strengths his employment history, current relationship, and demonstrated ability to abstain from alcohol as evidenced by the alcohol monitoring. Expressly relying on that PSR, the Court imposed a sentence of time served (three days) plus one day followed by 18 months probation, a sentence that did not require the accused to spend any further time in jail.

In R v T.Q. (OCJ Guelph; 24 June 2011), the accused faced two charges of impaired driving and driving while prohibited in connection with two separate incidents. He had three previous impaired/refuse convictions. The two new charges were treated as a combined fourth offence each carrying a mandatory minimum of four months.  He had served five days in pre-trial custody. The Crown sought nine to twelve months of jail time. Voluntarily, the accused wore a SCRAM bracelet for two months prior to sentencing, which confirmed that he had abstained from consuming alcohol during that time. He also provided the Court with other evidence, supported by a PSR, that he had recognized his problem with alcohol and was taking steps to address it. Citing the multiple sources of evidence that the accused was taking responsibility for his drinking and making progress, the Court imposed a total sentence of five months plus five days.  Given the accused’s record and the mandatory minimums that applied, it seems clear that the mitigating evidence, including the evidence of sustained sobriety confirmed by SCRAM, helped persuade the Court to impose the lowest sentence that could have been expected in the circumstances.

In R v J.P. (OCJ Bracebridge; 19 July 2011), the offender acknowledged breaching a conditional sentence term requiring her to abstain from the consumption of alcohol. The underlying offence (theft) and other previous offences were associated with alcohol abuse. The offender voluntarily wore an alcohol monitoring ankle bracelet between her release on bail and the conditional sentence breach hearing, a period of just under one month. In seeking to avoid being required to serve all or part of her remaining sentence in custody, the offender agreed to have conditions added to the sentence requiring her to reside with a responsible family member and to continue with alcohol monitoring. She had also arranged to attend residential treatment. Noting the 8 days she served in custody between being arrested on the breach and obtaining bail, the new conditions and treatment she proposed, and the one month of sobriety confirmed through alcohol monitoring, the Court did not require her to serve further time in custody. Instead, she was permitted to continue her conditional sentence with the monitoring and residency requirements added to its terms.

In R v M.M. (OCJ Brampton; 1 December 2011), the accused pled guilty to impaired operation, refusing to provide a breath sample, and driving while prohibited. The Court noted the “significant and aggravated pattern” in his record, which included four previous convictions for drinking and driving, two refusals to provide a breath sample, and four convictions for driving while prohibited. A mandatory minimum sentence of 120 days was required. The Court deemed his 99 days in pre-trial custody to be equivalent to a five month sentence. For eight months while on bail, the accused was subject to house arrest, an alcohol prohibition and, at his own expense, electronic monitoring and continuous alcohol monitoring by the SCRAM ankle bracelet. Monitoring reports were filed with the Court confirming he had complied with the house arrest and alcohol abstinence conditions. The Court gave two months credit for the eight months on these restrictive bail conditions, for a total credit towards the sentence of seven months, which the Court then imposed as a sentence for the impaired and refuse charges. With the mandatory minimums for those offences satisfied by the credit for time served and time on bail, the Court then imposed an eight month conditional sentence for the drive disqualified with house arrest, an alcohol prohibition and other terms including continued alcohol monitoring for the first three months of that sentence. This was an innovative and effective way for the Court to satisfy the mandatory minimums AND impose a conditional sentence, which would ordinarily not be possible and which gives the Court more power and flexibility than jail followed by probation. It is also extremely significant that alcohol monitoring while on bail helped the accused gain two months of credit towards the mandatory jail sentence.

In R v A.T. (OCJ Brampton; 20 March 2012), the accused pled guilty to two separate incidents of impaired driving, the second of which occurred while she was on pre-trial release for the first. Both incidents involved circumstances that the Court described as “horrendous” and “extremely aggravating”, including high BAC readings, children being present in the vehicle, accidents causing property damage, and attempting to bribe witnesses not to call the police. The Crown sought a period of incarceration, while the defence proposed a conditional sentence with an alcohol prohibition and SCRAM monitoring.  Voluntarily, the accused wore a SCRAM bracelet for over three months prior to sentencing. The accused had attended a highly regarded treatment program and the PSR noted a number of sources describing her as a changed person who had recognized her problem with alcohol and was taking to steps to control it.  In considering the monitoring, the Court noted that “it reflects (well) that you have decided to enter into this program whereby you, voluntarily, wear an alcohol detection bracelet and undoubtedly, that has been of significance and importance for you because it simply brings home to you, every time you think about having a drink that it is going to be reported to somebody…”. Citing the absence of a prior record, the guilty pleas, remorse, and “significant work in terms of rehabilitating yourself and changing your situation”, the Court imposed a 6 month conditional sentence with terms that included house arrest but did not require abstinence from alcohol or continued monitoring. This is another case in which it appears clear that, together with the other positive evidence, the pre-trial alcohol monitoring helped persuade the Court to see as appropriate a sentence that was less onerous than it might otherwise have imposed.

These cases suggest that any accused person facing charges associated with alcohol abuse, especially where there are multiple incidents or a prior record of similar offences, would be wise to consider alcohol monitoring while on pre-trial release.

Please contact us for more information on these cases or to discuss how continuous alcohol monitoring might help in your own case.

August 2012

R v J.P. M.-K., an unreported bail review decison of O’Neill J. of the Ontario Superior Court of Justice in Parry Sound made on 22 June 2010, was the first case in Canada to consider the use of continuous alcohol monitoring with the SCRAM® ankle bracelet in a pre-trial release plan.

The accused faced charges of assaulting a peace officer, breaching probation (x5), mischief under (x3) and assault, having been arrested in April 2010 while subject to a probation order that had just begun in March 2010. Alcohol abuse was a factor in the current charges and in the accused’s prior convictions. At the initial bail hearing, the justice of the peace ordered that the accused be detained. On the strength of an improved plan of supervision that included a new surety, treatment and continuous alcohol monitoring, the accused brought a bail review application seeking release. The Crown sought continued detention.

The Court found that the justice of the peace had been correct to order detention, because “left unchecked and simply on the strength of a promise, Mr. King would lapse back into alcohol abuse and more offences would be committed”. Finding that the new plan with alcohol monitoring helped address the secondary ground, the Court granted release with terms that included abstinence from alcohol and, at the accused’s expense, alcohol monitoring by the SCRAM ankle bracelet.

In the course of its reasoning, the Court also considered s. 718.2(e) of the Criminal Code of Canada, which provides that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders . The Court further referenced the principle enunciated by the Supreme Court of Canada in R v Gladue that “s. 718(2)(e) may properly be seen as Parliament’s direction to members of the judiciary to inquire into the root causes of the problem and to endeavour to remedy it…”. Acknowledging that s. 718(2)(e) and Gladue relate to sentencing, not bail, O’Neill J., quoting His Honour’s own 2003 decision in R v Pitawanakwat, stated that “it is in the interest of all concerned that….the root causes….of an offender’s action be dealt with at all stages of the criminal justice process”, including the bail stage.

This case is significant in its characterization of continuous alcohol monitoring as helping to create a reasonable alternative to incarceration and being a means of addressing alcohol abuse as a root cause of criminal behaviour, as well as in its ultimate ruling establishing that, where secondary ground concerns are associated with a history of alcohol abuse, including continuous alcohol monitoring in the plan of supervision can mean the difference between detention and release.

In contrast, R v K.K., an unreported decision of Bielby J. of the Ontario Superior Court of Justice in Brampton made on 25 January 2011, is a bail review in which a plan with continuous alcohol monitoring did not satisfy the Court that the accused ought to be released. The accused had been arrested on 17 October 2010 and charged with impaired driving, failure to provide a breath sample, breach of recognizance, fail to comply with probation and drive while disqualified. At the initial bail hearing, secondary ground concerns resulted in a detention order. The accused brought a bail review application, proposing a plan that included being subject to both continuous alcohol monitoring and house arrest with electronic monitoring using the SCRAM® system. The Court found that “the monitoring proposal is attractive and worth consideration”, but that detention was nevertheless required under the secondary grounds due to the accused’s circumstances, which included a record of three previous impaired charges since May 2007, multiple breaches of recognizance, probation, and driving prohibitions, and failure to follow through with an alcohol assessment. In obiter, the Court also commented that Mr. Kanagasundaram’s release could raise tertiary ground concerns.

Kanagasundaram makes it clear that continuous alcohol monitoring does not make release a sure thing. Where the accused’s pattern of alcohol-related conduct includes multiple recent impaired driving offences and breaches, and the accused has not demonstrated a commitment to obtain treatment for alcohol abuse, Courts may determine that monitoring is not sufficient to address secondary ground concerns. A demonstrated commitment to treatment and behavioural change will strengthen any plan of supervision and may be essential in cases where the accused has a record of serious offences and breaches. Treatment with monitoring will always be a stronger plan than monitoring alone.

Misquadis-King and Kanagasundaram are so far the only contested hearings to consider the issue of alcohol monitoring in a bail context. In other cases, including cases involving accused persons facing subsequent impaired driving charges who had taken steps to follow through with treatment, Crowns who initially opposed release have consented to release with continuous alcohol monitoring.

Please contact us for more information on these cases or to discuss how continuous alcohol monitoring might help in your own case.

Peter Marshall
August 2012