The accused, blind since the age of 16 as a result of a car accident, worked with the City of Calgary as a spokesperson and presenter on issues of blindness and disability. He has represented Canada at the Paralympic Games in 1984 and 1992. (By my reckoning, he must be at least in his 40's as a result.)

The accused, who has a prior criminal record for fraud over $5000, was convicted in 2012 of assault and sexual assault involving a friend. The question of sentencing -- and whether it would be proper for the accused to "be sentenced to a period of incarceration in a correctional facility given that he is blind and requires 24 hour assistance from his guide dog" -- was considered by a judge of the Alberta Provincial Court in April of this year: R. v. Myette, 2013 ABPC 89

The crown in this case sought 18 to 24 months in a prison facility. The defence relied on Article 14 of the United Nations Convention on the Rights of Persons with Disabilities ("UNCRPD"), which reads as follows:

Article 14 - Liberty and security of the person

1. States Parties shall ensure that persons with disabilities, on an equal basis with others:
   a. Enjoy the right to liberty and security of person;
   b. Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty.
2. States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of this Convention, including by provision of reasonable accommodation.

While the UNCRPD is not in and of itself a "law" of Canada, in the sense that it does not in and of itself confer any particular rights to people, it is useful as an interpretive tool when looking at existing Canadian legislation. In other words, because Canada has signed on to the UNCRPD, when courts interpret legislation (including the Criminal Code), they may look at the legislation with a presumption that, when Parliament enacted it, they did not intend for it to breach an international treaty. Put another way, the court must read the Criminal Code in conjunction with the UNCRPD and interpret the Criminal Code as though the UNCRPD were part of it.

The question thus becomes: Can Corrections Alberta, which overseas provincial facilities, "provide reasonable accommodation to the accused if he is incarcerated in the province of Alberta".

The Government testified that this was a rare occurrence, and that the government has no particular policy on issues specific to blind prisoners. They also identified the following limitations that would necessarily arise if the accused were placed into custody:

1. The accused could not conceivably be allowed to have his guide dog with him, in part because there is no funding to get food for or take care of the dog, and in part because there would be no way to take the dog out to do its business. They were also concerned about the harm that could come to the dog from other prisoners.

2. There is no braille in the prison. Rules and regulations that other prisoners could read, forms to fill out to request items from the canteen -- all of this is available only in print. They go so far as to admit "there is no accommodation for any Braille signage in any part of the Corrections system".

3. None of the computers have "voice recognition software".

4. Nobody in the corrections facility has any training on dealing with blind offenders. "There are no handbooks and no special arrangements to handle the needs of an individual who cannot see who is incarcerated."

5. In practical terms, the accused would more or less have to "depend on the kindness of other incarcerated offenders to help him with activities within the jail including reading, use of computers, access to the prison library and access to the telephone".

6. There would be no possibility of the accused working while in the jail, even though other prisoners would have access to jobs.

7. None of the physical activity and sporting activities available to other prisoners would be suitable for a blind accused.

8. Because the accused would be in protective custody, he would be out of his cell for only 30 to 60 minutes each day.

The Court concluded from all this:

In summary, it is this Court’s conclusion that there is nothing even approaching reasonable accommodation in Alberta for Mr. Myette as a blind, accused convicted of sexual assault. If Mr. Myette were to be incarcerated he would be suffering a significant punishment beyond that suffered by other individuals incarcerated in the Corrections system in Alberta. In fact Mr. Myette’s incarceration would approach that of solitary confinement with severe restriction on any type of physical movement, access to services, access to counseling or access to activities such as exercise. Mr. Myette would also be severely limited to any form of social contact with other prisoners not because of his conviction for sexual assault but because he would not able to freely move with other prisoners in either a minimum or a medium security category. Mr. Myette would suffer the mental pain of solitary confinement and the lack of reasonable accommodation in the prison system, a sentence of gaol would be far more punitive than other prisons suffer in Alberta’s Corrections system.

In the end, the accused was sentenced to 18 months of a form of "house arrest" and subjected to a series of additional restrictions as follows:

1. The accused shall keep the peace and be of good behaviour.

2. The accused shall report to the Court every 6 months along with a letter from Probation outlining his progress. The first report will be due in August 2013. Probation is to book a date through the Case Management office and advise the Court of the same.

3. The accused shall report to Probation within 24 hours of the issuance of the Court’s decision, in person and thereafter in the manner as directed by Probation and at the time as directed by Probation.
4. The accused must live where directed by Probation and shall not change his address without prior written approval.
5. The accused shall be under house arrest, remaining in his residence 24 hours a day for the next 18 months subject only to the following conditions:
   A. Attending Probation or any counselling or treatment ordered by Probation.
   B. Attending Court or on legal counsel.
   C. Attending at school or work, as pre-approved by Probation.
   D. Walking the guide dog or attending to the daily physical needs of the guide dog, accompanying the accused.
   E. Shopping for the necessities of life (to a maximum of 1 hour per day).
   F. Attending any programs approved by Probation in association with the accused’ disability.
   G. Medical appointments, counsellor appointments, dental appointments and religious services.
   H. Medical emergencies for the accused or the guide dog.
   I. Attending the veterinarian with the guide dog.
6. The Court also orders the accused to attend counselling under the supervision of Probation in the following areas:
   A. Sexual Offender.
   B. Grief Counselling.
   C. Vocational Counselling.
   D. Alcohol and Drug Abuse Counselling.
   E. Any other counselling directed by Probation.
7. The accused shall sign all necessary releases to allow Probation to access his treatment records and the accused shall provide written proof to Probation on demand of attendance and completion of all counselling ordered.
8. The accused must return to school at an appropriate place to upgrade his education or the accused must return to vocational training in order that he can resume some form of employment suitable for a person with his disability. Probation is directed by the Court to find a suitable program for the accused either for school or vocational training, to assist the accused to register and to access any financial assistance that the accused may require in order to attend the programs. ...
9. The accused shall abstain absolutely from the purchase, possession, use or consumption of alcohol and any illicit drugs.
10. The accused shall not possess any weapons as that term is defined in the Criminal Code.
11. Finally, the Court directs Probation to write a report to the Court every 6 months as to the accused’ progress. The Court also directs the accused to perform community service in the amount of 50 hours, if in the opinion of Probation there is a place where the accused can perform such community service given his physical disability. Probation shall have the sole authority to determine whether the accused is fit to perform community service and to direct the place or places where such community service shall be undertaken.

The question that this all raises is an unusual one. Does the fact that our correctional facilities do not have braille, do not have programming suited to the blind, and do not have facilities that are suitable for a guide dog, justify foregoing a prison sentence? How does one balance the interests of society (protection, denunciation, etc.) and the right to equal treatment provided for in the Charter and, in this case, in the UNCRPD?

I suppose what bothers me about this decision is that a number of the issues cited by the judge are issues that ought to be easily resolved. JAWS, ZoomText, or other assistive technology could clearly be added to the computers. The Government has an obligation to provide materials in alternative formats, including braille, and the cost of doing so for this one individual ought not to be prohibitive. The notion that he requires 24 hour assistance from his guide dog is a curious one. For one, if this dog has been with him for more than 10 years, it is likely due for retirement in any event. For another, if he is in fact confined to his cell for 23 out of 24 hours in the day, the apparent need to have a guide dog would seem to be defrayed somewhat by his circumstances.

Obviously, no accused is going to challenge the government on this point. It is unlikely that anyone will come along and advocate for improvements to services that would allow them to go to jail. But it feels, to me, as though this is taking the easy road out, and that in this case, the interests of the individual have won out over the interests of society. The Government has not lived up to its duty to accommodate and that failure to accommodate has been sanctioned by the Courts.

I applaud Mr. Myette's lawyer for proving that the UNCRPD is not a useless instrument, but the context in which this has been done, and the factual basis on which the decision appears to have been rendered, is disturbing.