Law Times

Page 6 April 22, 2013 • lAw Times COMMENT u Editorial obitEr By Glenn Kauth Report shows need for better screening I t's ironic that the former chairwoman of the Canadian Human Rights Tribunal was, as a report found last week, herself harassing and insulting her employees. In a disturbing report to Parliament last week, that's exactly what Canada's public sector integrity commissioner found following an investigation of former tribunal chairwoman Shirish Chotalia. An immigration, human rights, and employment lawyer from Alberta, Chotalia became tribunal chairwoman in late 2009. Among the findings, the report concluded Chotalia referred to employees in derogatory terms, questioned their competency, and spread misinformation about them in the workplace. The complainants included members of the tribunal itself, one of whom was subject to insults and defamatory comments. Chotalia, the report noted, brought up issues about the member's health and capacity to work in front of other employees. "Ms. Chotalia also attempted to prevent this member from interacting with employees of the CHRT and to control the member's personal relationships with former colleagues, including judges and police officers, by forbidding the member to meet with them unless she was present," last week's report states. The list of disturbing actions noted in the report is long. Chotalia, the report found, called another tribunal member "immature" and a "child;" ordered staff to spy on an employee without valid reason; maintained a secret file on a staff member; and made unreasonable demands such as requiring employees to work outside of regular hours and be available around the clock by BlackBerry. "She also asked individuals to come to work when on sick leave and to work while on holidays," the report states. I Chotalia, the report found, also accused people of stealing from her and talked of conspiracies related to the fact that she was a Conservative appointee, is a "brown woman from Alberta," and the unions didn't like her. Inexplicably, the report found, she ordered staff to go ahead with a trip to Vancouver for a mediation session despite the fact the parties had come to an agreement. She flew to Vancouver anyway and, according to the report, "transferred onto a San Diego bound flight for a previously planned personal trip." The public sector integrity commissioner noted his office was unable to interview Chotalia as part of the investigation. "Ms. Chotalia never respond- ed to any of our further requests to participate and comment," the report states. In the meantime, she resigned from her position late last year. The report, which found Chotalia committed gross mismanagement, is disturbing on a number of levels. As someone whose role is to uphold human rights and work against discrimination and harassment, Chotalia's actions, as found by the commissioner, are especially troubling. As the report points out, the federal government needs to do a better job of screening its appointees to ensure they adhere to the values inherent in the jobs they do. — Glenn Kauth Bid to remove intermittent sentences criticized ntermittent sentences are about to become unavailable in Alberta. Premier Alison Redford's government has announced Alberta intends to phase out intermittent sentences in a bid to save $942,000. Intermittent sentences enable offenders sentenced to 90 days or less to serve their time on weekends. An offender would serve a 90-day sentence over 15 weekends if it begins on Friday evenings and ends on Monday mornings. Typically, the offender enters the jail on the day of the sentencing for processing, which counts as one day, and returns on Friday evening. There are some interesting nuances to intermittent sentences. Clients can serve the sentence at dates arranged to accommodate their schedule if ordered by the court. So it's possible to serve a sentence from, for example, Monday night to Friday morning if that fits the client's work schedule. Although the sentence can't exceed 90 days, I have seen instances where the court sentenced the offender to 90 days on one set of charges only to have the client return for sentencing a few days after the expiry of Law Times This ensures good conduct the first intermittent sentence. However, back-to-back senA Criminal and may specifically require offenders to present themtences would become one conMind selves sober to the institution. tinuous sentence pursuant to s. Intermittent sentences serve 139(1) of the Corrections and many rehabilitative purposes. Conditional Release Act. They're not just for employWhere the minimum penment as there's nothing in s. 732 alty for an offence exceeds 90 to restrict their use in that mandays, an intermittent sentence ner. Intermittent sentences can isn't possible. An example permit offenders to continue would be a third conviction for their education or take care of drinking and driving because the minimum penalty is now Rosalind Conway their children or an elderly parent. It's important to note that if 120 days. However, it may be possible to persuade the court that an in- the situation changes, offenders can apply termittent sentence is appropriate for the to the court to allow them to serve their balance of the sentence if the offender has sentence on consecutive days. The statutory criteria for imposing an served sufficient dead time. However, if an offender is serving an intermittent sentence are as follows: the age intermittent sentence and then receives a and character of the offender, the nature of second one, the first converts to straight the offence, the circumstances of its comtime pursuant to s. 732(3) of the Criminal mission, and the availability of appropriate accommodation to comply with the order. Code unless the court orders otherwise. That's where the problem comes in The court must order probation during the intermittent sentence in order because even if the Criminal Code proto cover the period when the offender is vides for intermittent sentences, provin the community and it can, of course, inces can do away with them if they impose it for up to three years thereafter. choose not to have the facilities. Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 Tel: 416-298-5141 • Fax: 416-649-7870 • www.lawtimesnews.com Group Publisher . . . . . . . . . . . . . . . . . . . Karen Lorimer Editorial Director . . . . . . . . . . . . . . . . . . . Gail J. Cohen Editor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Glenn Kauth Staff Writer . . . . . . . . . . . . . . . . . . . . . . . .Yamri Taddese Staff Writer . . . . . . . . . . . . . . . . . . . . . . Charlotte Santry Copy Editor . . . . . . . . . . . . . . . . . . . . . . Mallory Hendry CaseLaw Editor . . . . . . . . . . . . . . . . . Adela Rodriguez Art Director . . . . . . . . . . . . . . . . . . . . . . Alicia Adamson Production Co-ordinator . . . . . . . . . . . . . Catherine Giles Electronic Production Specialist . . . . . . . Derek Welford Advertising Sales . . . . . . . . . . . . . . . Kimberlee Pascoe Sales Co-ordinator . . . . . . . . . . . . . . . . . . . Sandy Shutt ©2013 Thomson Reuters Canada Ltd. 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Circulation inquiries, postal returns www.lawtimesnews.com An offender's ability to keep employment, continue education or care for family is crucial to reintegration into society. And it seems harsh and punitive that the criminal law will apply differently in one province than in others. An intermittent sentence isn't a lenient sentence. The law provides for it. If a harsher sentence were appropriate, the client could arguably serve it on Saturdays and Sundays only, which would mean that a 90-day sentence would then take 30 weekends to fulfil. The Criminal Code makes it clear that Parliament intended for criminal sanctions to be proportionate and recognize rehabilitation as a goal in sentencing. As the code states, "An offender shall not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances." New mandatory minimum penalties are already restricting judicial discretion. Taking away intermittent sentences only exacerbates the situation. LT Rosalind Conway is a certified specialist in criminal litigation. She can be reached at rosalind.conway@gmail.com. and address changes should include a copy of the mailing label(s) and should be sent to Law Times One Corporate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. Contact Ellen Alstein at ............ 416-649-9926 or fax: 416-649-7870 ellen.alstein@thomsonreuters.com advertising Advertising inquiries and materials should be directed to Sales, Law Times, 2075 Kennedy Rd., Toronto, ON, M1T 3V4 or call: Karen Lorimer ....................................416-649-9411 karen.lorimer@thomsonreuters.com Kimberlee Pascoe ..............................416-649-8875 kimberlee.pascoe@thomsonreuters.com Sandy Shutt...... sandra.shutt@thomsonreuters.com

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