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FASD
Saskatchwewan | Judge requests FAS solution: Young offender
diagnosed with fetal alcohol syndrome at centre of debate By
Dan Zakreski, StarPhoenix, Dec. 24, 1999 | Judge's
nudge badly needed The Star Phoenix Opinion: January 13, 1999
| Chatelaine magazine bio | Handling of teen appalls judge Kilburn
Hall staff 'wrong' to treat boy in such a way By Dan Zakreski
of The StarPhoenix , April 20, 1999 | Free
speech for judges: Turpel-Lafond's comments spark controversy
in legal circles, May 5, 1999 By Leslie Perreaux of The StarPhoenix
| Zakreski charged | FASD
| Other judges
Mary Ellen
Turpel-Lafond
Follow the career
of this gutsy judge who is using her office to do what judges
are supposed to do!
Court of Appeal to put
its spin on FAS rulings: Decisions rendered by Turpel-Lafond
the lightning rod behind bold initiative
By Dan Zakreski, S-P. September
30. 2000
The Saskatchewan Court of Appeal
is wading into the power struggle between provincial court judges
and the Department of Social Services over how best to deal with
offenders diagnosed with fetal alcohol syndrome (FAS).
This year, the upper court
has considered a series of disputed sentences where the offender
suffers from FAS. The majority of the appeals involve rulings
by Saskatoon provincial court Judge Mary Ellen Turpel-Lafond,
but are not restricted exclusively to her decisions.
The contentious aspect of the
rulings is Turpel-Lafond ordering Social Services to create special
treatment programs for the offenders rather than sending them
to jail.
The Court of Appeal heard such
a case Sept. 20. The justices will deliver a written decision
on the case with reasons -
the first time they've done
so on this issue. Previously, they simply ruled whether the sentence
stands.
The Court of Appeal decision
is expected to have wide ranging implications on future sentencing.
"The whole question of
FAS is a sleeping giant in the criminal justice system. As many
as 40 per cent of all young offenders in custody are FAS kids,"
says a judge who asked not to be named.
"From a narrow point of
view, it's not the jurisdiction of the court. But if the social
policy of the government is to imprison people who are brain
damaged rather than give them appropriate therapy, then it becomes
a central issue."
FAS occurs when a woman consumes
alcohol during her pregnancy. The damage to the child is wide-ranging
and permanent.
Grand Chief Gary Merasty of
the Prince Albert Grand Council has no problem with judicial
activism on this issue.
"If Social Services is
not responding then somebody needs to spark something,"
he said.
"We're all in favour of
jumpstarting the Social Services system."
Justice Deputy Minister John
Whyte says the dispute with the judges turns on jurisdiction.
"We don't believe that
judges in sentencing should prescribe specific program responses
when that requires the creation of a new program," he said.
"The social problems they
want us to deal with are ones that undoubtedly need dealing with.
But there comes a point when they give orders which require executive
government to make expenditure decisions, design decisions, policy
and regulatory decisions which we haven't yet made, and courts
don't have that authority over government."
Both lawyers working with FAS
clients and Department of Social Services officials agree that
the present system doesn't do enough.
"We still have a ways
to go in developing programs for people with FAS. We have to
develop more prevention programs . . . and certainly, aside from
prevention, we have to do more in the area of having programs
to deal with kids that already have FAS," said social services
spokesperson Doug Wakabayashi.
Legal Aid lawyer Kathy Grier
in Saskatoon has seen the sentences for three of her clients
appealed by the Crown this year.
"These were all kids who
had a diagnosis of FAS or fetal alcohol effect (a variation),
so the regular programs just don't meet their needs," she
said.
In one instance, Turpel-Lafond
ordered a youth worker be assigned to the case and that a comprehensive
plan be prepared for the youth's release. She also ordered the
youth sent to an in-patient treatment centre with an aboriginal
focus, and special education supports.
"The Crown is saying they
have no objection to these kids getting the treatment, but that
she (Turpel-Lafond) has to do it an appropriate fashion. They
don't agree it's an appropriate fashion," Grier said.
Whyte says the government sympathizes
with the frustration of the judiciary - but it won't take orders
from judges.
"Some of the judgments
ask us to do things that we're not ready to do. Perhaps we should
be ready to do (it but) it goes beyond what a judge, we think,
should be ordering," he said.
This isn't good enough, said
one judge.
"The bottom line is what
are you doing about FAS? The fact of the matter is they've got
zip going on FAS," the judge said.
"Jail is the only social
preferred option for brain damaged people if the government is
right."
Judge requests FAS solution:
Young offender diagnosed with fetal alcohol syndrome at centre
of debate
By Dan Zakreski, StarPhoenix,
Dec. 24, 1999
A 12-year-old Saskatoon girl
who broke into a house full of sleeping people and set a series
of fires is now at the centre of a debate over how the courts
deal with youth diagnosed with fetal alcohol syndrome (FAS).
On Thursday, provincial court
Judge Mary Ellen Turpel-Lafond postponed sentencing of the youth
until January because it's not clear what - if any - kind of
treatment is available for young offenders with FAS in Saskatchewan.
In delaying sentencing, Turpel-Lafond
questioned Crown and defence counsel about what type of FAS programming
is available in custody "for a 12-year-old girl with her
first set of offences.
"What is an appropriate
strategy for this young person?"
Turpel-Lafond instructed the
court to arrange for Social Services to supply an expert to speak
to the availability of programming.
The girl was diagnosed with
FAS when she was three years old. The condition is caused by
exposure to alcohol during pregnancy and studies suggest that
as many as half the youth in custody suffer from it. The effects
range from profound mental impairment to deficits in judgment
and reasoning.
The Crown is recommending the
girl serve one year in closed custody, followed by six months
in open custody and a year of probation. Crown prosecutor Val
Adamko said public safety is a serious concern because of the
girl's admitted role as instigator in a series of fires this
past fall in the city.
Defence lawyer Grant Crookshanks
said youth cannot get appropriate treatment for FAS in custody
anywhere in the province. He said that constructing a network
of supports in the community is the most effective way to change
her behaviour.
The negative social influences
she could encounter in jail "are not as concentrated"
in the community, he added.
Adamko said the girl can get
programming in closed custody. The issue is whether she can apply
what she's learned to situations on the outside, "and that's
where we differ."
The youth pleaded guilty to
arson, along with another 12-year-old girl and a 16-year-old
girl, in connection with a wave of garbage bin and house fires
on the city's west side this fall. They faced a combined total
of 51 charges.
The teenager has already been
sentenced to one year in secure custody and six months open.
The other 12-year-old has been sentenced to three months secure
custody and six months open.
In the most serious incident,
the three broke into a house full of sleeping people and set
fires. They then called 911 and assisted firefighters in evacuating
eight people from the multi-unit dwelling, including a man in
a wheelchair.
As firefighters worked on the
blaze, which caused more than $100,000 in damage, the three girls
told emergency staff how they awakened and then helped evacuate
residents from the suites.
Investigators became suspicious
because their names were familiar from an ongoing arson investigation.
The girl will spend Christmas
in remand at Kilburn Hall.
Judge's nudge badly needed
The Star Phoenix Opinion:
January 13, 1999
The judge who ordered the government
to develop a community-based treatment program for a 12-year-old
arsonist with fetal alcohol syndrome instead of jailing the girl
deserves kudos for the decision.
In a province that locks up
more of its young than any other jurisdiction in North America,
Judge Mary Ellen Turpel-Lafond's ruling addresses a problem ignored
for too long.
With research showing that
nearly 50 per cent of young persons being ground through Saskatchewan's
justice mill each year - a vast majority of them aboriginal youths
- suffer from some form of FAS, it's to be hoped that Turpel-Lafond's
decision finally will spur some action from government.
The predictable and tiresome
accusation of "judicial activism" has again reared
its ugly head in the wake of the ruling, with critics arguing
that the girl should have been locked up for public safety, not
let loose on the community.
Those who took the time to
read the judgment or acquaint themselves with the effects of
FAS, however, would agree that Turpel-Lafond's ruling was the
better course of action in the long run and one that should serve
as a model in other cases involving FAS-damaged youths.
"Community protection
is not served by temporary warehousing of FAS children in secure
custodial facilities because ... in all likelihood they will
return to the community in worse condition," Turpel-Lafond
said.
She worried that the youth,
only identified as ML, would bond with anti-social peers and,
"given her suggestibility, she will be ripe for participation
in further criminal activity at the direction of a more sophisticated
youth or group of youths she'll meet in secure custody."
As experts made it abundantly
clear to the court, children such as ML who develop FAS as a
result of their mothers consuming alcohol during pregnancy have
no regard for the consequences of their actions.
Although they know right from
wrong, they cannot relate cause to an effect. Therefore, the
principles of deterrence and social denunciation that underpin
incarceration don't apply to offenders with FAS. The goal of
rehabilitation also doesn't apply, because FAS is a lifelong,
physical neurological disability.
Turpel-Lafond found that ML,
like so many others with FAS, needs education programming, pro-social
activities, help to make positive contact with peers and family
and a high level of supervision to help her rehearse and learn
good behaviour in a social context.
Such mechanisms that help FAS
kids to live with their disability effectively cannot be delivered
in closed-custody, the court learned.
While FAS children learn to
perform well in the structured custody setting, they have no
ability to continue their behaviour once they regain their freedom.
The case of Serena Nicotine, another FAS youth who performed
well in lock-up but went on to kill the operator of the open
custody home to which she was released, is a prime example.
Turpel-Lafond made it plain
that jailing disabled children who severely lack education, socialization
and life skills, instead of providing the resources needed to
help them cope, is neither reasonable nor just.
It's something that our politicians
have known all along but have so far avoided addressing, perhaps
because they think it will cost too much.
Now, facing a court order that
requires it to come up with a program for one youth within 45
days and similar edicts from other judges soon bound to follow,
the government will be pressed to do what it should have done
long ago, not just in the interest of the youths involved but
for public safety in the long run.
A Mother's Reply to article
"Judge's nudge badly needed"
The Star Phoenix News, Saskatoon,
SK, Canada, January 13, 1999
I was very pleased to read
the coverage in the Star Phoenix of Judge Mary Ellen Turpel-Lafond's
ruling in the recent case against the 12 year old FAS arsonist.
I applaud her decision as I am sure many other parent's of FAS/E
children are doing.
Our children are only 9 and
10 years old, and hopefully will never have to stand before a
judge facing such charges. However, both of our children suffer
from the effects of the alcohol, solvents and variety of narcotics
that their birth mother abused during both pregnancies, and we
are growing increasingly frustrated by the lack of services available
to either our children or to us as parents of FAE kids.
Without the necessary treatment
and programming our children could very well become two more
statistics. This is totally unacceptable in my view. Appropriate
educational and therapeutic services are not only my children's
right it is the law! A country that boasts of an 8 billion dollar
surplus, one of the highest standards of living in the world
and claims to have an educational and health care system second
to none should be more than capable of providing these services.
The fact that we do not is a national disgrace.
As an adoptive parent I have
made several attempts to access programming for our children
because I am well aware of all of the risks that are associated
with FAS/E. Unfortunately, those services just don't seem to
be available to us. There are very few doctors or educators who
have a good understanding of this condition and any programs
we have found are not specific to FAS/E and are not government
funded.
We have had our children assessed
at a private learning institute and traveled 400 kms once a week
to enable our children to have the benefit of educational therapy.
Because of the distance, and expense we were unable to continue
beyond a year, even though it was beneficial to our children.
The cost was $36.00 an hour at 4 hours a week, for each child,
and we could not even deduct it on our income tax, because Learning
Disabilities, ADHD and FAS/E are not recognized as being disabilities
by our government. I pay for private counseling at a cost of
$50/hr for both myself and my children and one of our children
requires three different kinds of medication in order to function
in school, at home and in the community.
Due to the learning disabilities
that both children have they would each benefit from the use
of a computer for doing written work but they do not qualify
for special funding so we will probably have to purchase laptops
for school as well at some point, in addition to the special
software that they require. They also do not qualify for teacher
aides so I am presently making arrangements to hire someone to
tutor them after school. In addition, we have spent thousands
of dollars in repairing damages to our home as a result of the
impulsive destructive behavior that results from fetal alcohol
damage.
When I contacted Social Services
I was told that they do not provide any assistance to adoptive
families unless the special needs were identified prior to adoption.
FAE is not evident at birth and the learning and behavioral problems
usually don't become evident until the child is older. Social
Services was well aware that the birth mother had a chronic substance
abuse problem, but they did not make this information available
to us, and apparently did not know that this would cause our
children to have learning, behavioral and psychological difficulties.
Because I previously knew of
her history I was aware that these problems may surface at some
point, but most adoptive parents do not have the benefit of this
information and they adopt what they believe to be healthy babies
only to find out after years of heartbreak, that their children
have brain damage due to fetal alcohol exposure. Of course, since
this was not identified prior to adoption, they do not qualify
for any assistance either, and none of us get the support that
we all desperately need in order to understand and cope with
the very difficult challenges of raising an alcohol effected
child. As a result many adoptive or foster placements break down,
parents suffer from anxiety and depression, marriages fall apart
and the kids end up back in the system or on the streets.
The families who manage to
stay together and cope the best they can, do so with great difficulty
and at a huge cost emotionally and physically, to every member
of that family. Nothing in the world can prepare you for the
challenges of parenting an FAS or FAE child because until you
actually live it the behaviors are inconceivable and pretty much
indescribable.
The media has finally tuned
in to this issue in relation to young offenders. However, before
these kids become young offenders many of them are identified
as having learning and behavioral problems. Because there are
no adequate services for these kids they develop many of the
secondary conditions that are associated with FAS. We know that
FAS is the leading cause of mental retardation, learning disabilities,
ADHD, and conduct disorder, and that kids who have FAS have a
very high risk of abusing drugs and alcohol, developing antisocial
behaviors, dropping out of school, teenage pregnancy, committing
suicide and that they have a 90% risk of developing a psychological
disorder or mental illness. I recently read that 80% of violent
male offenders in Federal Penitentiaries have FAS/E and that
at least 50% of youthful offenders have FAS/E.
Why is it that we are doing
nothing as a society to address these problems? My children do
not qualify for any special services within the school, I can
not find a program that deals with all of the aspects of this
condition and I am not prepared to wait until my children get
into trouble with the law to get them the treatment that would
quite likely prevent this from happening in the first place.
We spend millions of dollars
a year warehousing FAS/E offenders in adult and youth correctional
institutions even though we know it serves no purpose other than
to ensure that they will undoubtedly, reoffend once they are
released back into the community. Serena Nicotene was released
from the Paul Dojack Center because the Social Workers that are
employed there had very little knowledge in the area of FAS even
though the majority of kids within those walls are alcohol effected.
Why is that?
A judge, who sees FAS kids
on a daily basis, obviously did not understand the implications
of this disorder either. This lack of understanding among the
very people we pay, and trust, to protect us, puts us all in
danger every day, because they are making irresponsible decisions
as a result of their ignorance regarding this condition. It is
also a huge disservice to the youth who are being deprived of
the help they need because of the lack of information and resources
available to those who make decisions regarding their fate.
Judge Mary Ellen Turpel-Lafond's
ruling is a step in the right direction because it forces the
government to address the special needs of FAS kids who have
already become involved in the young offender system. Unfortunately,
it does nothing to prevent these kids from becoming involved
in crime in the first place. FAS kids are born to parents who
have substance abuse problems and who are very often FAS or FAE
themselves.
As a result, many of these
children come into contact with Social Services at some point
and are subsequently placed in care. Those who are made permanent
wards are placed in adoptive homes or in long term care. This
provides a window of opportunity for identifying and treating
these children because most foster and adoptive parents would
gladly do whatever it takes to assist these children and provide
for their special needs, if the resources were available and
affordable to us. Providing community based programming to these
children and their parents through the form of early intervention
and ongoing treatment would greatly decrease the number of youth
who come into conflict with the law later on.
The public is rapidly losing
confidence in the Department of Social Services because the approach
to protecting children continues to be reactive, rather than
proactive and preventative. We are reminded daily of how the
system doesn't work and every change in policy seems to be a
step backwards. Intervention only takes place after a child has
either been seriously harmed or has done serious harm to another.
By this point so much damage has been done that it is often irreparable.
Cost effectiveness takes precedence over the needs of children,
and the rights of parents and preserving the sanctity of the
family unit, are put before the safety of children but these
approaches ironically result in much higher costs to us all,
both socially and financially over the long term.
The majority of these kids
are not being raised by their biological, substance abusing parents.
Most of them are in and out of foster care, group homes and institutions
and many other's are in permanent foster care or adoptive homes.
They have parents who care and are committed to raising them.
If Social Services would provide
the information we need to allow us to identify and deal with
the special needs of our children and if our educational and
health care professionals were given the resources that are required
to put the appropriate programming in place we could keep these
kids at home, in school and out of trouble.
There is no cure for what they
have but the with the right combination of medical treatment,
educational programming and a loving, secure and structured home
environment many of these kids can succeed in life. It is ludicrous
that they should have to burn down somebody's home or kill a
few people before these resources become available to them. It's
even more ludicrous to support the right of a pregnant woman
to do irreparable damage to an unborn child through the use of
alcohol. This is a phenomenon that exists soley because we, as
a society condone the use of alcohol by pregnant women.
When I watch my children struggle,
day after day, because of conditions that were 100% preventable
it not only breaks my heart, it makes me very angry. How can
we allow this to go on? Why should these innocent children have
to pay such a huge cost because of the apathy of adults? There
is no justification.
Errin Weigel Quill Lake,
Saskatchewan
Mary
Ellen Turpel-Lafond : Judge
- By Jacqueline Hennessy
First published in Chatelaine's
January 2000 issue.
-
- Her Honour's system Judge
Mary Ellen Turpel-Lafond's CV speaks for itself.
- Born: Feb. 15, 1963, St. David,
Man., to a Cree father and a mother of Scottish/English ancestry
- 1985: bachelor of laws, Osgoode
Hall Law School, Toronto 1988: master's degree in international
law, University of Cambridge, England 1990: doctorate of law,
Harvard Law School, U.S.
- 1990-92: lead counsel for
the Assembly of First Nations during debate over Charlottetown
accord
- 1994: first aboriginal person
in Canada to become a tenured law professor (at Dalhousie Law
School in Halifax); named one of Time magazine's new generation
of world leaders
- 1998: first aboriginal woman
appointed to the provincial bench in Saskatchewan; gains reputation
as outspoken defender of native and constitutional rights; described
by Chief Justice Brosi Nutting as "a bridge between the
aboriginal community and the Court"
Judge Turpel-Lafond
herself, however, speaks for others.
On what makes a just society
"People must be treated fairly. Historically, aboriginal
people have been left out of everything--the legal system, elections,
the school system. Equality has to be applied across the board.
That's worth getting up in the morning and working hard for."
On alternative sentencing "Why
should society shoulder the financial burden of putting people
in jail if it doesn't always work? Literacy, job placement, community
service--these things work better. We know they do."
On her greatest success "My
three-year-old daughter, Alphonsine. I keep a picture of her
right here with me. I want to leave my daughter with a good community--I
don't mean just Saskatchewan, but all of Canada."
On what really counts "Every
morning I say a prayer to the Creator, asking that I can do at
least one good thing today. Public service is the most rewarding
thing you can do."
Chiefs urge preventative
action
By Trina Gobért JULY
2000 Sage
Saskatchewan chiefs are telling
the provincial government that, when it comes to fetal alcohol
syndrome and fetal alcohol effects, it's a question of pay a
little now or pay a lot later.
 Acting
to support a controversial ruling by Native judge Mary-Ellen
Turpel-Lafond, (who is married to Saskatoon Tribal Council chief
Harry Lafond) the Federation of Saskatchewan Indian Nations passed
a resolution calling for action that will stop children suffering
from the affliction from falling through the cracks in the system.
First Nation leaders believe
that fetal alcohol syndrome and fetal alcohol effects are a root
cause of justice, education and health problems for Aboriginal
youth.
"We don't have the numbers
and a percentage as to how many are affected with FAS,"
said First Vice Chief Morley Watson of the Federation of Saskatchewan
Indian Nations. "There is not a lot of programming provincially
or federally out there. It is almost like starting from scratch."
On May 30, the chiefs of the
FSIN passed a resolution to aggressively take action on the issue
and are asking the Saskatchewan government to focus on the issue
and provide programming. "The number one thing that we have
to be most cognizant of is that it is very serious and the governments
and public are uneducated about it," said Watson. "A
lot of these young people don't realize the severity of their
actions and find themselves on the wrong side of the law. In
a lot of cases the education system doesn't realize they don't
have the same learning capabilities and as a result they are
looked at as being slow and they can't keep up. Then quitting
is the easy way out for them. So in the areas of justice and
education we want to bring some light to the situation."
Some tribal councils unofficially
realized the severity of the situation and did some preparatory
work. On June 1, the chiefs legislative assembly gave the official
go ahead to address the issue. "Hopefully, we can pull in
the feds with the province and set something in place to help
these young people," said Watson.
The national average for children
born with FAS is one to three per 3,000 children and between
160 to 600 births per 1000 for FAE.
A recent provincial court decision
ruled that the issue be addressed properly in regards to youth
possibly affected with the disease. The Crown appealed the decision
by Judge Mary Ellen Turpel-Lafond saying that she was steering
social policy.
"Judge Lafond said, because
there was no programming and no help available to the young individuals,
that she was not going to continue to incarcerate young people,"
said Watson. "What the province wants to do is to continue
to put them in youth detention centres as opposed to sending
them to get help for FAS and FAE where they can get treatment.
So, with no programming in place, the province just continually
wanted to have Judge Lafond incarecerate them and she didn't
want to do that."
Although the First Nations
have not heard anything more in regards to the appeal they plan
to continue to pursue discussions with the government to take
a closer look at the problem. "Like everything else government
is always hesitant because it is going to cost money," said
Watson. "I think when we talk of social programming this
fits right in because the longer that they don't help then the
longer they are still going to have high overhead costs for education,
justice, and health. So the big thing that we want to do is convince
them that it would be a better investment for us to work with
these young people now.
|
Handling of teen appalls
judge
Kilburn Hall staff 'wrong'
to treat boy in such a way
By Dan Zakreski of The StarPhoenix
Tuesday, April 20, 1999
Provincial court Judge Mary-Ellen
Turpel-Lafond lambasted staff at Kilburn Hall for placing a 17-year-old
boy in a concrete isolation cell in January with the lights off
and subjecting him to classical music played at high volume to
control his behavior.
When this did not work, five
staff using a plastic shield rushed the youth in the cell and
placed him in the "cradle" position. He was handcuffed
with his hands behind his back, his legs shackled and a further
apparatus used to connect the two at the knees so that he was
immobilized face down on the cell floor.
An emotional Turpel-Lafond
apologized to the boy for what happened in custody. In a strongly
worded 42-page judgment, she said the Department of Social Services
should immediately review its policies on isolation cells, restraint
policies and sending youths to police cells.
"What happened to you
at Kilburn Hall was wrong. You are not criminally responsible
for it and have been put through the unfortunate ordeal of a
trial and secure remand in an adult prison," she said in
the judgment, delivered in court last Thursday.
Social Services spokesperson
Bill Carney said Monday the department is giving the judgment
"a very thorough review." He added that the department
had already undertaken a review of the use of restraints and
what type are used.
"The other thing we're
reviewing is our confinement and segregation policy," he
said.
"We're going to take the
judge's ruling and give that full consideration as part of the
review."
In her judgment, Turpel-Lafond
acquitted the boy on charges of assault and uttering threats
related to the incident at Kilburn Hall where he was subdued.
For outstanding charges of
car theft and trafficking marijuana, she ordered his time served
on remand quadrupled - so three months would equal one year in
jail - to allow his immediate release. She also ordered that
the director of the Saskatoon Correctional Centre deliver the
boy's belongings to his mother.
At one point leaving the bench
to compose herself, Turpel-Lafond said that she "was shocked
to hear that in the isolation unit, young people can be placed
in cells without a mattress or sheet as these are treated as
privileges.
"It was evidence that
a mattress and sheet are used as part of a bargaining process
to get young people to behave. This is a breach of the Department
of Social Services policies which were filed with the court."
The youth had spent two nights
in city police cells and three days in isolation cells.
"It is arguable, contrary
to the Young Offenders Act, not to mention the Charter and the
Geneva Convention on the Rights of the Child, to send a young
person to the police cells," she said.
The boy was on remand at Kilburn
Hall Jan. 13 awaiting trial dates on the car theft charge and
the trafficking charge, when the incident occurred. It started
with his refusal to run five laps in gym - he ran only three
- and escalated to his confinement in his room. When he kicked
the door, he was placed in isolation.
The assault charge Turpel-Lafond
dealt with resulted when it was alleged the boy grabbed a worker
by the testicles while being placed in the cradle position. "In
acquitting him of the assault charge, I would suggest that an
assault may have been committed in this matter, but not by the
youth. I have heard evidence that one of the youth facility workers
struck the youth in the head several times," Turpel-Lafond
said.
The related charge of uttering
threats followed from a conversation overheard by a staff member
at Kilburn Hall.
At the request of Kilburn Hall,
and with his eventual agreement, the youth was remanded to the
Saskatoon Correctional Centre where he was placed on secure remand
because of reports the correctional centre had received from
Kilburn Hall. He spent three months there until his case was
dealt with last Thursday. Related story: Federation
wants inquiry into how boy was treated at young offenders facility
|
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Free speech for judges:
Turpel-Lafond's comments spark controversy in legal circles
May 5, 1999 By Leslie Perreaux
of The StarPhoenix
Some judges won't accept a
50-cent pastry as a gift. Others make headlines with speeches,
such as the recent example of provincial court Judge Mary-Ellen
Turpel-Lafond.
A vast grey area stretches
among judges over the level of public participation they find
acceptable to maintain their independence.
The senior judge who recently
refused an apple fritter from a visitor to the Court of Queen's
Bench may have simply been watching his waistline, but the tone
of his voice implied he didn't want to be seen accepting a gift.
The incident illustrates how
judges - especially older ones - will go to great lengths to
protect their independence. Part of this philosophy means public
statements by most senior judges are guarded and opinions straying
into the political realm are avoided. But among other judges
- particularly younger ones - the lines are shifting.
"A younger judge might
have taken that doughnut. If that happens, is that a problem?"
asked Daryl Labach, president of the Saskatoon Criminal Defence
Lawyer's Association.
Labach and several other city
lawyers on Tuesday came to the defence of Turpel-Lafond, whose
comments on a variety of issues have come under criticism. Turpel-Lafond
has been in more headlines for her opinions in 1999 than most
judges collect in their careers.
The judge, a legal scholar
with an impressive resume, has been on the bench for 13 months.
In recent weeks she has condemned
the treatment of a teenager in detention, spoken out on accountability
in Native government and commented for lawyers on a recent Supreme
Court decision calling for more alternative sentences for aboriginal
people.
Corrections workers were insulted
by the judge's characterization of the boy's time in jail. Native
people calling for more accountability in aboriginal government
felt she downplayed their concerns over corruption. Crown prosecutors
grumbled because her commentary on the Supreme Court decision
first went into the hands of Legal Aid lawyers.
Some lawyers said the concerns
and criticisms have been misguided.
Defence lawyer Mark Brayford
pointed out that judges make comments and write opinions on other
court decisions all the time. Every summer at a conference, dozens
of judges prepare commentary on the previous year's decisions.
Last year, 32 opinions were penned by judges.
"To put it mildly, it's
very common for judges to write about the legal issues that are
contained in case law," he said. "Judges interpret
legal decisions outside of court all the time."
"It's a part of legal
education," added Labach, who said Turpel-Lafond recently
spoke on the subject to his association.
Usually, the interpretations
are provided to other lawyers and law students, or published
in legal tomes, out of the general public's eye.
"Judges give speeches.
During the school year, a month doesn't go by that a judge isn't
speaking at the college of law," Labach said.
Brayford also said judges should
be allowed to make any comments they like on social issues, including
Native government accountability or the incarceration of youths.
"Judges must take care
in public statements not to affect cases that they are sitting
on as judges. Clearly, judges are not politicians, but clearly
there are social issues of the day that might be of interest
to that judge as a citizen," Brayford said.
Labach and Morris Bodnar, a
defence lawyer and a former MP, said they weren't as sure Turpel-Lafond
should have spoken out on Native governance and accountability.
"Most often we require
the judiciary not to be political. The question here really has
to be whether or not they were political comments. If they were
not, then it is fine for judges to make their views known because
this is important to rectify problems," Bodnar said.
Last week, the Saskatchewan
Party asked the provincial government to impose conduct guidelines
on judges because of Turpel-Lafond's speech.
Sentencing within a Restorative Justice
Paradigm
|
Truth can never be
told so as to be understood, and not be believ'd. William Blake, The Proverbs of Hell
