HOUSE ARREST

In Most of N.B., Checking Up on Offenders at Home Means Phone Calls, A
Few Surprise Visits and Chance

The 26-year-old drug dealer had been convicted eight times on
drug-related offences.

He was nabbed again by police last fall and ended up in court in
December. He told the judge he wanted to kick his drug habit and asked
to serve his sentence under house arrest.

Later, he would admit he knew he would never successfully complete the
sentence.

He was right. Barely six weeks into a six-month conditional sentence,
he was back on the drugs - in fact, he broke nearly every condition
the court imposed.

But how would the authorities ever find out? How can anyone know
whether offenders are using illegal drugs, associating with criminals
or abiding by a curfew if it's all done behind closed doors? Does
house arrest really work?

Essentially, the answers to those questions come down to enforcement.
And in most of New Brunswick, police are the missing ingredient.

Checking up on offenders doesn't top the priority list for any police
force and in most communities, it doesn't even make the list.

Police in Moncton, Fredericton, Miramichi and the RCMP in smaller
communities don't actively check on people serving conditional
sentences. They wait for tips, chance encounters and the belief that
they'll recognize offenders in their community.

In Saint John, police aren't so willing to leave enforcement to chance
encounters.

"We take a very active role in enforcing conditional sentences in
partnership with Probation Services," said Sgt. Kim Phillips, head of
the street crime unit of the Saint John Police Force.

He said his unit conducts random, but regular, visits to offenders - a
few visits here, a few dozen there. In one week not long ago, officers
made two visits to every person on a conditional sentence in Saint
John.

The street crime unit does its own visits, the patrol unit does its
own visits and sometimes the two units work together - often with the
assistance of Probation Services.

"If house arrest isn't enforced, what's the point?" asks Jim Peters,
who supervises conditional sentences in the Saint John area for
Probation Services.

Thanks to the strict conditions Saint John judges impose and the
vigorous enforcement by police and Probation Ser-vices, conditional
sentences are working very well in Saint John, said Jim McAvity, the
head Crown prosecutor in Saint John.

"In this area, sentence supervisors, who are probation officers, take
the responsibility very seriously and the sentences are continually
monitored."

If an offender is caught breaking the conditions, Saint John judges
are also quick to revoke the sentence and send the offender to jail
for the remainder of the sentence.

Mr. McAvity said there's been a lot of "fine tuning" of conditional
sentences since Parliament created the sentencing option in 1996 -
both in conditions imposed and enforcement.

"If the probation department wasn't doing as good a job enforcing
these sentences then society would have reason to be concerned about
these things."

Throughout most of New Brunswick, supervision is left to Probation
Services and correctional officers.

In fact, there are three levels of supervision, said Leslie Reid, a
senior program and policy advisor for the Department of Public Safety.

Probation officers act as sentence supervisors and, since conditional
sentences are considered jail sentences served in the community,
correctional officers are also responsible for checking up on
offenders by telephone. There are also between five and seven
correctional officers "in the field," who can call or drop by any time
of the day or night.

Ms. Reid said there are a minimum of two face-to-face visits each
month; one daily phone call made at random times; and two other random
phone calls on non-work days.

The probation officer also makes "collateral checks" to ensure that
offenders are attending programs as directed for addictions, mental
health issues and other concerns.

In Saint John, there is the added level of police enforcement.

Last month, Mr. Peters teamed up with the Saint John Police Force to
check on dozens of offenders. In two nights, they made 60 visits to
offenders on conditional sentences and others awaiting trial who were
on similar agreements with the court. As a result of the spot checks,
two offenders had their sentences revoked and are now serving the
remainder of their sentence behind bars.

Mr. Peters said there will always be those "who will push the
envelope" and test the diligence of the monitoring.

"They're taking their chances, because it won't go undetected for
long."

He conservatively estimates that 85 per cent of offenders successfully
complete their sentence - and it's not for lack of checking.

"There's always a little kink here and there, but overall, it's
working pretty well," said Mr. Peters.

The head of public prosecutions for the province said Crown
prosecutors identified some early problems with supervision. For
example, said Glen Abbott, offenders forwarded their phone calls to
other locations.

"Since then, probation officers have electronic machinery to prevent
such things from happening."

Sgt. Phillips likes the concept of conditional sentences - as long as
offenders are closely monitored. He said it provides the ideal
situation for people who want to keep their jobs and continue to look
after their family.

"Judges use it in a very prudent and appropriate fashion. In other
jurisdictions, perhaps there's been a problem, but here, we've
collectively taken a very serious approach to it."

Sgt. Phillips is also pleased with the improvements in the conditions
that are imposed.

"We've worked with the courts and probation services to get workable
and enforceable conditions," he said.

When an offender is handed a conditional sentence in Saint John, he or
she can expect to:

be put on a curfew;

abstain from the use and possession of non-prescribed drugs;
and

allow police to enter and search their residence at any time without a
prior judicial authorization like a search warrant.

In drug cases, some judges prohibit the offender from associating with
anyone with a criminal drug record. Judges have also started to impose
a condition that prohibits visitors from entering the residence at any
time, for any reason.

Sgt. Phillips said enforcement could not work without officers being
able to search the residence without a warrant. After all, police
don't have time to get a warrant if an offender refuses to let them
in. By the time they return with a warrant, potential evidence could
be flushed down the toilet or thrown out a window.

He would like to see urine analysis added to ensure compliance with
the drug and alcohol conditions that are frequently imposed.

Some jurisdictions also use electronic monitoring to ensure house
arrest and curfew conditions are obeyed. The programs are costly, but
effective.

Without such measures, defence lawyer David Kelly said the system has
inherent problems if offenders don't take the conditions seriously.

Before arguing for a conditional sentence, Mr. Kelly quizzes his
clients on their commitment to abide by the typical conditions. He
warns them that if they mess up, they could face a longer jail term
than they would have originally since judges are encouraged to make
conditional sentences longer than the jail term they were
contemplating.

"Generally, you have limited luck with conditional sentences with
repeat offenders because they're the people who are most likely to
reoffend. There has to be a lot of co-operation between the offender
and probation services."

Mr. Kelly said he has seen a lot of people abuse the
system.

"There are a lot of people who are willing to take the chance that the
jail or Jim Peters or probation aren't going to call them when they're
out at Mispec beach on a sunny summer afternoon."

The most common reasons for failure are "frustration and opportunity,"
said Mr. Kelly.

"You're frustrated at the fact that you're stuck in the house on a
sunny, hot day and really, you're on your own. There are no bars or
electric fence to keep you in. If you go out the door, that's up to
you."

For the RCMP, which polices most of New Brunswick, it boils down to a
lack of resources, said provincial spokesman Sgt. Gary Cameron.

He said the force has had to prioritize and conditional sentences
"take a back seat" to most other enforcement issues.

He said the public has to take an active role in community policing
and in many small communities, residents know which neighbours are on
house arrest and other conditions. Officers who live in those
communities also know which offenders are serving sentences.

"Officers know everyone and would recognize who would be on
conditions," he said.

The same goes for Moncton, where the Codiac RCMP patrols a population
of more than 90,000 with 127 sworn officers.

"The town is not that big and we would be able to identify them very
quickly," said Const. Michel Mercier.

The Fredericton Police Force doesn't go out looking for violators
either, said Staff-Sergeant Tim Kelly, the officer in charge of the
criminal investigation division.

"We don't enforce any of those conditions," he said.

If officers come across someone violating any of their conditions,
then they'll haul them back before the courts so a judge can deal with
it.

Staff-Sgt. Kelly points out that although these offenders are removed
from the jail, his force hasn't been given any more resources to
supervise them in the community.

In Miramichi, if police catch someone violating their conditions, they
report it to the probation officer, said Sgt. Sam Williamson, of the
court section of the Miramichi Police Force.

"We just don't have the manpower to go around and check
everyone."

Mr. Abbott hesitates to wade into the issue of enforcement. He said
the saying "the more, the merrier" could apply to enforcement, "but I
don't know that you need police forces adding to the enforcement by
Public Safety."

While New Brunswick hasn't kept track of success rates for conditional
sentences, one of Canada's leading authorities has analyzed statistics
from several other provinces.

Julian Roberts, a professor of criminology at the University of
Ottawa, reports that the rate of successful completion fell from 78
per cent in 1997-98 to 63 per cent three years later. Most often,
offenders fail by violating conditions rather than committing new crimes.

"If these trends toward lower success rates continue, they will be
cause for concern, as they will fuel criticism of the sanction and
undermine judicial confidence in the disposition," wrote Prof. Roberts
in an academic paper.

Prof. Roberts said lack of information makes evaluation difficult. It
also makes some judges leery about allowing offenders to serve their
sentences in the community.

He said "until now, judges have been sentencing in the dark, unaware
of the general success or failure of the sanction and of whether the
conditional sentences that they impose have been appropriately
supervised..."

Prof. Roberts said the only way to increase public - and judicial -
confidence is to collect better statistics.

"In order for judges to exploit the full potential of conditional
sentencing, they, and other actors in the sentencing process, will
need more and better data; we can only hope that such statistics will
not be long coming."

In the meantime, anecdotal feedback is as good as it
gets.

Just ask the 26-year-old drug addict who had to let Sgt. Phillips and
Mr. Peters into his apartment on Mecklenburg Street in Saint John last
month.

He knew he wasn't supposed to have the pager that sat on his bedroom
dresser, nor the cellphone nearby. He certainly knew he wasn't
supposed to have the bag of marijuana sitting on his nightstand.

And he must have known that his stint on a conditional sentence was
over.

He was immediately taken to court where his six-month conditional
sentence was revoked, leaving him to serve the remaining
two-and-a-half months behind bars.