Electronic Monitoring an effective alternative to incarceration

Developing a Modernized Criminal Justice Strategy that supports Offender Rehabilitation while putting Safety and Security First

September 28, 2020 - by Scott Newark LLB

The criminal justice system in Canada is a continually evolving process where changes in legislation, policy, priorities, and technology are a reality. Electronic Monitoring (EM) of offenders is an example of this over the past decade which is especially relevant today as public policy is seeking to address dealing with more effectively monitoring high risk and repeat offenders, protecting victims of domestic violence, supporting crime prevention in communities, including indigenous communities, avoiding continuing criminalization by finding alternatives to custody and appropriately reducing caseloads through diversionary programs.

The use of EM to achieve these goals has expanded dramatically over the past decade with Provinces across Canada implementing EM programs and allocating funding for this specific purpose. Legal authorization for the use of EM as a condition of release has also grown over the same time period with both express legislative authorization  (Criminal Code and Corrections and Conditional Release Act) as well as Charter compliance confirmation as a ‘reasonable condition’ by different Courts in Canada including the 2007 Supreme Court of Canada Charkaoui case. (Charkaoui v. Canada – Citizenship and Immigration) [2007] 1 S.C.R. 350). A full analysis of the relevant legislation and court rulings is also available should it be of assistance.  

Inasmuch as Provinces have the jurisdiction for the ‘administration of justice’ pursuant to s. 92(13) of the Constitution Act, it is largely up to them to create, maintain and fund targeted programs that help achieve public interest goals through the deployment of modern EM technology systems. This is an area that has been a challenge because despite enacting specific legislation to authorize EM as a condition of release or rehabilitation, the federal government has not provided funding mechanisms to the Provinces, law enforcement or community organizations despite multiple funding programs with a mandate that could include this. This has had a significant impact as the application for EM as a condition of release or diversionary measures requires Crown consent which is unlikely if a Provincial program does not exist due to lack of funding. This issue needs to be raised by community organizations as well as criminal justice system officials as targeted EM deployment has proven to be not only a public safety enhancer but also a cost-effective force multiplier for those charged with enforcing our laws. 

Not surprisingly, this lack of public funding for EM has resulted in multiple cases of persons seeking release providing private funding for the EM as a condition of their release. While this is in the public interest, it is not an appropriate approach as too many people will be unable to provide the funding which creates negative public consequences. 

This Note will provide details of the different applications for EM system deployment including the benefits resulting therefrom. It will also provide specific details regarding ‘diversion’ programs under both the Criminal Code and the Youth Criminal Justice Act as these are underutilized legal mechanisms that can help achieve important community safety and offender rehabilitation goals by using legally authorized but under-utilized alternatives to the traditional criminal justice system.

Diversion Programs

Both the Criminal Code (s. 717- ‘Alternative Measures’) and the Youth Criminal Justice Act (s.4- ‘Extra Judicial Measures’) expressly authorize Diversion programs as an alternative to criminal prosecution. These programs can be offered by the Police (Pre-Charge) and post charge which would be approved and supported by the Crown.

Including EM as a consensual condition of a Diversion program is clearly supportive of the intended rehabilitative goals of this Federal legislation and Provincial programs. This is confirmed by Public Safety Canada policy.

https://www.ppsc-sppc.gc.ca/eng/pub/fpsd-sfpg/fps-sfp/tpd/p3/ch08.html#fnb8

Despite their differences, what all diversion programs have in common is that they are an alternative to prosecution or incarceration. The Crown recognizes that not all types of offences need to be dealt with through guilty pleas or trials, and that sometimes early intervention with an individual, can reduce or even eliminate the criminal exposure that comes with incarceration. This program could include, counselling, work or school commitments and community service, all the while the individual, will be kept accountable and compliant, by the EM GPS Ankle Bracelet solution, monitored and controlled by local Police. Once the accused has successfully completed their program, their charge or charges can be stayed or withdrawn by the Crown. The community Diversion program would be perfectly suited for “First Timers”, Low Risk Offenders and persons genuinely seeking to avoid ongoing criminality.

Law enforcement or community support groups interested in this ‘diversion’ approach can have an impact on its functionality by examining the existing Provincial program to ensure it is properly constituted, staffed, mandated, and funded. If deficiencies are noted, these same groups can then advocate for specific changes with the Provincial Attorney General’s office which will be the entity assigned responsibility for the program.

Applications and Benefits of Deployment

• Public Safety Enhancement – Significant public safety results with respect to increased and targeted monitoring of high risk and repeat offenders.
   
• Victim Safety – Improves victim, and especially domestic violence victim, safety, and stress reduction through the specialized features with pre-programmed ‘no go’ zones, three way real time communications and alerts as well as special victim alerts.
   
• Alternatives to Custody – It is increasingly recognized that alternatives to custody for certain offenders including young people, indigenous people, homeless people, and people with drug addiction can help prevent the further influence of the ‘criminal culture’ on offenders.
   
• Offender Rehabilitation – EM provides a certainty of prohibited behaviour detection for persons who need to, and want to, change their lifestyle to escape the downward path of criminality.
   
• Force Multiplier for Police – EM eliminates the need for ongoing surveillance of certain offenders which increases public safety while freeing up police resources for the critical work they perform.
   
• Cost Effectiveness – EM is significantly less expensive than keeping persons in custody and the technology capabilities. Companies such as SafeTracks GPS Canada allows this fiscal benefit without jeopardizing public safety.
   
• Reduced Case Load in the Criminal Justice System – Using EM as a condition for diversion or alternative measures programs, peace bonds and non-custodial sentences (probation, conditional sentence, intermittent sentence) will also help reduce the case load and delay in the criminal justice system which is a significant problem.

Recommendations

1. Law enforcement and community support groups interested in these non custodial, preventive, rehabilitative, victim protection, community safety and crime reduction objectives which are supported and enhanced by the deployment of EM solutions should closely examine existing Provincial programs, including ‘diversion’ programs, to ensure they are fully aware of this option, have the necessary partnerships, staffing, mandate and the required funding in place.
    
2. If deficiencies are identified, these same groups can then advocate for specific changes with the Provincial Attorney General’s office which will be the entity assigned responsibility for the programs. Law enforcement and community support groups should also engage with their Provincial and national organizations to seek their support for the actions they wish to see implemented.
    
3. Law enforcement and community support groups should identify and monitor possible federal funding programs relevant to the purposes they seek to accomplish through the deployment of EM systems. Examples of this include:

   • Public Safety Canada https://www.publicsafety.gc.ca/cnt/cntrng-crm/crm-prvntn/index-en.aspx
   • Justice Canada  https://www.justice.gc.ca/eng/fund-fina/form.html
   • Women & Gender Equality Canada https://cfc-swc.gc.ca/index-en.html
   • Indigenous Services Canada https://www.sac-isc.gc.ca/eng/1591289631120/1591289804651 

Canada is clearly moving towards a modernization of its criminal justice system which, through the use of existing non-custodial outcomes as well as use of legally authorized technology, like electronic monitoring, means we can enhance public safety while supporting reduced recidivism and successful offender reintegration to society.  It’s a strategy worth pursuing.

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Scott Newark is a former Alberta Crown Prosecutor who has also served as Executive Officer of the Canadian Police Association, Vice Chair of the Ontario Office for Victims of Crime, Director of Operations for Investigative Project on Terrorism and as a Security Policy Advisor to the governments of Ontario and Canada. He is currently an Adjunct Professor in the TRSS Program in the School of Criminology at Simon Fraser University. 

Among his many roles, Scott Newark is also a security advisor to SafeTracks GPS Canada which is a leading supplier of electronic monitoring systems in Canada.