The Alberta Court of Appeal recently faced an interesting dilemma when pondering how to sentence a legally blind man. The accused had been found guilty of sexual assault. He was legally blind and had used a guide dog since he was 17. The trial judge feared for his safety in prison and worried that time in jail for him would be significantly more punishment than other prisoners, and would violate the UN Convention on the Rights of Persons with Disabilities. She sentenced him to house arrest for 18 months along with conditions in a probation order. The Crown appealed. The Alberta Court of Appeal split two to one in its decision. Two judges disagreed with the trial judge and ordered time in jail for the offender. They noted that Corrections Services required an assessment of the special needs of the handicapped, he would have a case worker, other staff and agencies could be called in, he would be in a segregated unit, and he would have access to all programs, including the gym, except for the work program. Although he wouldn’t have his guide dog, he could use his cane. They ruled that reasonable accommodation for his needs could be attained. They also rejected her ruling that the UN Convention was breached.
Justice Peter Martin agreed with the trial judge that this was an exceptional case such that imprisonment would be disproportionately harsh. He wrote: “Incarceration is a stressful experience for anyone. A totally blind man such as the respondent would be unable to make his way around in his new surroundings, read signs, or see another prisoner approaching him. He would be completely defenceless and at the mercy of other prisoners and his keepers to help him perform even the most basic of daily functions. That is particularly so as the respondent would not have the assistance of his guide dog on whom he has come to depend for the past 10 years.” His opinion was that house arrest in this case would meet the ends of justice.
R. v. Myette, 2013 ABCA 371 (CanLII)
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