No Incentive for Pretrial Rehabilitation - ECP
Rehabilitation is an important objective for sentences that Canadian criminal courts place on offenders. Jurisprudence first recognized that incarcerating offenders does not effectively rehabilitate them in the case R. v. Proulx. However, legal scholarship indicates that restorative principles have been restrained in recent years. This case from the Manitoba Court of Appeal outlines a situation where the Criminal Justice system has placed barriers to legitimate rehabilitation for offenders who may choose rehabilitative programming of their own volition.
Lewyc-Sullivan was arrested with 145.15 grams of cocaine, two kilograms of a cutting agent called benzocaine, a digital scale (with traces of cocaine and benzocaine on it), and a cell phone filled with information regarding the debts he was owed for the sale of these drugs. He was charged with possession of cocaine for the purpose of drug trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act, SC 1996, c 19. He pled guilty to the charges. At his sentencing, Lewyc-Sullivan indicated that he sold cocaine specifically to fuel his own habit of using substances.
Before this sentencing hearing, by Lewyc-Sullivan’s request, he was released to the Behavioral Health Foundation (BHF). This institution provides Addiction Treatment Services to individuals facing charges in the Criminal Justice System, among other programs. Those who desire to engage in this program have to specifically request remand to BHF for a pre-trial period. Participants are then provided with a pre-sentencing report concerning their efforts regarding the Addictions Treatment programming and the individual’s general potential for rehabilitation. Participants to the Addiction Treatment Services Program are accepted based on their suitability for the program. Eligibility is also based on “suitable financial arrangements,” indicating that payment is organized before they start the program. Lewyc-Sullivan spent 10.5 months at BHF and was sober for the entirety of his time spent in the program.
The sentencing judge, referencing the pre-sentencing report prepared by BHF, commented on the potential for Lewyc-Sullivan’s rehabilitation and specifically mentioned that the accused had “an above average chance of rehabilitation.” However, the judge placed superior weight on the sentencing objectives of denunciation and deterrence. The Criminal Code, R.S.C. 1985, c C-46 outlines the relevant objectives of sentencing in s. 718 as: denunciation of illegal action, deterrence of the offender or others causing that particular crime, and rehabilitation of offenders. The imposed sentence was 54 months’ imprisonment less pre-sentence custody. The sentence was also informed by mandatory minimums imposed by the Controlled Drugs and Substances Act, SC 1996, c 19.
Grounds of Appeal
When appealing the weight that a sentencing judge gives to the various sentencing factors involved in a case, the appellant must prove an error in principle which had a material impact on the sentence or led to a demonstrably unfit sentence. Additionally, the judge’s discretion in the imposed sentence must be unreasonable. Lewyc-Sullivan argued that the sentencing judge neglected to appropriately contemplate the principle of rehabilitation and that the sentence would have been the same without his self-sought pre-sentencing rehabilitative efforts. The Court of Appeal decided that the sentencing judge gave suitable consideration to his rehabilitative efforts, that the sentence imposed was not demonstrably unfit for Lewyc-Sullivan, and that the judge’s discretion was not unreasonable.
Lewyc-Sullivan also initially raised the ground of appeal that the sentencing judge should have considered his trafficking activity as low-level or street-level drug trafficking. Manitoban jurisprudence describes a low-level or street-level cocaine trafficker as someone who sells “a few rocks on the street to support his own habit.” Mid-level drug trafficking is illustrated through a person who supplies drugs and has decision-making responsibility among other local drug traffickers. Lewyc-Sullivan fulfilled the categorical indications of mid-level drug trafficking, realized the dubious tenability of this argument, and dropped the ground of appeal at the hearing. Lewyc-Sullivan’s mid-level drug trafficking was one of the aggravating sentencing factors which led the sentencing judge to prioritize the principles of denunciation and deterrence.
Implications for the Principle of Rehabilitation
The result from this case, while it reflects a correct application of the various legal principles involved, begs several questions: What motivation do offenders in Lewyc-Sullivan’s position have to seek rehabilitation prior to their sentencing? Should mid-level drug dealers be encouraged to participate in pre-trial rehabilitation and work towards eventual reintegration to Canadian society if that process is severed through incarceration? Would it not be more efficient for them to commence rehabilitation post-imprisonment? Since imprisonment is not an effective means of rehabilitation, Lewyc-Sullivan’s sentence effectively severed the rehabilitative work he had done. This could make it more difficult for him to continue this self-improvement once his sentence has completed. It could also potentially undo some of that work, since it has been found that longer prison sentences can increase the risk of recidivism once the offender has re-entered Canadian society. Additionally, if the offender is to be believed and started trafficking drugs solely to fuel his own substance behaviors, the Addiction Treatment Services Program directly addressed the underlying cause of his offence. The offender in this instance did gain the unquestionable benefit through his rehabilitative work of a reduced period of incarceration. The trial judge indicated that their decision was influenced by the pre-sentencing report, and this indication was upheld at the Manitoba Court of Appeal. However, mandatory minimums and centering the principles of denunciation and deterrence practically work against the principle of rehabilitation before an offender has served a prison sentence. The framework of legal narratives in this case creates a situation where individuals are discouraged from seeking out pre-sentencing rehabilitation. While the decision in this case could have the effect of deterring future potential cocaine trafficking in Manitoba, it also could have the effect of deterring cocaine traffickers from seeking out rehabilitation programs. In turn, the sentencing principles set out in s. 718 of the Criminal Code, R.S.C. 1985, c C-46 do not harmoniously work toward the protection of Canadian society and reduction of crime through the rehabilitation of offenders, but are instead in conflict with one another.
For Lewyc-Sullivan, the decision in this case means serving his initial sentence of 54 months’ incarceration. This period of imprisonment could seriously undermine the self-improvement he initiated through his pre-trial release to BHF. For those in situations similar to Lewyc-Sullivan, this case could impact their incentive to engage in equivalent rehabilitative processes. If rehabilitation is going to lose in paramountcy to denunciation and deterrence in cases of mid-level drug traffickers, regardless of their own efforts and potential and improvement, it only functions to temporally limit periods of incarceration. As previously stated, incarceration is not a channel for rehabilitation and creates significant barriers to recovery itself. If the Canadian Criminal Justice System intends to legitimately rehabilitate those convicted of mid-level drug trafficking, it should not disincentivize pretrial rehabilitative programs.
 Criminal Code, RSC 1985, c C-46, s 718(d).  R v Proulx, 2000 SCC 5, at para  Department of Justice Research and Statistics Division, “An opinion on reform changes with respect to the principles and purposes of sentencing” (1 July 2017), online: Department of Justice <www.justice.gc.ca/eng/rp-pr/jr/orc-orp/p5.html> [perma.cc/CC4W-CUTZ].  R v Lewyc-Sullivan, 2021 MBCA 92 at para 3.  Behavioral Health Foundation, “Addiction Treatment Services Program” (n.d.), online: Behavioral Health Foundation <www.bhf.ca/men-women-family-treatment-services/> [perma.cc/6V29-N9A8].  Ibid.  Lewyc-Sullivan, supra note 4 at para 7.  Ibid at para 11.  Criminal Code, supra note 1, s 718(a). Ibid, s 718(b).  Ibid, s 718 (d).  Lewyc-Sullivan, supra note 4 at para 6.  Ibid at para 1.  R v Gilchrist, 2004 MBCA 21 at para 13.  R v Rocha, 2009 MBCA 26 at para 63.  Lewyc-Sullivan, supra note 4 at para 8.  Department of Justice Research and Statistics Division, “An opinion on reform changes with respect to the principles and purposes of sentencing” (1 July 2017), online: Department of Justice <www.justice.gc.ca/eng/rp-pr/jr/orc-orp/p5.html> [perma.cc/CC4W-CUTZ].  Ibid.