Federal mistake leaves Yukon with a lot of legal work

Up until November 2010, the Yukon's probation officers didn't have any legal backing to do their job.

Up until November 2010, the Yukon’s probation officers didn’t have any legal backing to do their job.

That’s because Canada’s attorney general simply hadn’t ever “designated” them as the Criminal Code requires, said John Phelps, the Yukon’s chief federal prosecutor.

This means that for as long as the territory’s courts have been handing out conditional sentences, breach charges laid by the probation officers or conditional sentence supervisors didn’t actually count – despite the fact that they may have been added to a person’s record and could have even led to jail time.

But the federal oversight wasn’t caught until just recently – by accident, said Phelps.

“The practice in the Nunavut office was called into question and it turned out that across the North the practice varied but there were inconsistencies with respect to the designations,” Phelps said.

“There were problems in all three territories. It turned out that we were unable to locate any designations done in the Yukon territory, at any point in time. In the N.W.T.

it was sporadic, and in Nunavut it seemed it was sporadic as well.”

But the situation sounds worse than it actually is, said Phelps.

The conditional sentence, given by the judge, is legal.

“A judge is entitled to consider and grant a conditional sentence regardless of this designation taking place,” said Phelps.

And for most conditional sentences, most of the conditions are decided and detailed by the judge as well.

These range from a curfew to forbidding alcohol or possession of a weapon, to contacting specific people or going specific places.

If the person given the sentence was found in breach of the judge’s conditions, that breach still stands.

The attorney general’s oversight only matters for conditions placed by the probation officer, or conditional sentence supervisor.

These conditions aren’t very common but do exist, Phelps said.

They tend to be things like an obligation to attend specific treatment or counselling, or to reside in specific living arrangements.

“Breaches under those conditions may be problematic,” said Phelps. “We don’t know the volume of those breaches in the Yukon territory.”

Most times, when someone is found in breach of their sentence, it’s not for one specific condition, added Phelps. That means even if there were a case of someone who was given a null breach, it is likely they also breached a condition ordered by a judge, which was legal.

“I don’t anticipate that there are many, if any, individuals that would have been breached solely because they didn’t follow the direction of a supervisor,” Phelps said.

The territory’s office of the Public Prosecution Service of Canada is now going through all its own records and has sent out about 400 letters to people who may be affected by this oversight. After only about 20 per cent of the letters led to phone calls, the office decided to put ads in the local papers, said Phelps.

When people do call the office, they are told to contact a lawyer if they are interested in seeing what options they may have, said Phelps.

The worst-case scenario could be that someone was jailed because of a breach that didn’t count, which could mean the person may have legal means to file a lawsuit. Or perhaps their records may need to be adjusted to wipe any illegal breaches from them.

So far, Phelps’ office hasn’t done a full legal assessment and so it doesn’t know if there will be much recourse, if any, Phelps said.

“There are a lot of factors that would play in this,” he said. “My assessment would be that it’s relatively unlikely that there would be successful recourse, financially.”

The probation officers or conditional sentence supervisors in the territory are trained and qualified, confirmed Phelps. They were just missing the legal designation, which is usually done in a letter, identifying the supervisor by name, from the attorney general.

But there doesn’t seem to be a solid excuse for this “technical flaw.”

The provinces are responsible to do this designation, but it’s Ottawa’s responsibility when it comes to the territories, Phelps said.

“I don’t think that they forgot about us,” he said. “I think it’s the unique nature of the North.”

If you think this oversight may affect you, call 867-667-3981.

Contact Roxanne Stasyszyn at