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| John L. Hill |
Her defence is seeking an absolute discharge, the most lenient adult sentence, arguing that for the first time her traumatic personal history and the systemic failures she endured are being given meaningful weight. Judge Ian Hutchison is considering the submission. “It's an acknowledgment by this court that for the first time in this woman's life, consideration is actually being given to her history for the first time, and that for the first time, she's going to be given mercy, essentially,” her lawyer, Jeremiah Raining Bird, told the court in June and reported by CBC.
Tobaccojuice’s life has been shaped by severe childhood abuse, alcohol addiction starting at age seven, foster care, racism and family experiences with residential schools. She also has fetal alcohol syndrome and PTSD.
Her criminal history is extensive: she is serving a life sentence for a 1997 murder committed at age 15. She has numerous convictions for hostage-takings and in-custody violence during her early years in federal prisons. Prosecutors argue an absolute discharge is inappropriate and contrary to institutional safety, given her long record of violent incidents. They say doing so could undermine order and encourage similar behaviour.
Serena Tobaccojuice kept acting out even after she arrived at a federal penitentiary. During her first 10 years of imprisonment, she accumulated several convictions for hostage-taking, assaults, extortion and forcible confinement. Her victims included other inmates, as well as prison guards and a nurse.
Crown prosecutor Andy Melvin says the record disqualifies her from receiving an absolute discharge. He stated it would be contrary to the public interest. "Order needs to be maintained in Canada’s correctional system," he said, and a three-year sentence is more appropriate. There’s no doubt Tobaccojuice has “had a tragic life,” he told the court in June, “but that has to be balanced with the tragedy that she has inflicted on others.”
Correctional officers’ representatives warn that a discharge for confining guards would harm staff morale and institutional security. The Crown seeks a three-year sentence. Tobaccojuice, meanwhile, says the 2022 incident occurred while she was in severe pain and not receiving medical attention; she also threatened self-harm.
This case goes beyond simply proving beyond a reasonable doubt that this inmate committed a crime. Essentially, Raining Bird is putting our correctional system on trial and making the Correctional Service of Canada a defendant. The case has uncovered serious issues from Tobaccojuice’s nearly 30 years in custody, including long periods in segregation or isolation, sometimes for years, and treatment conditions that witnesses described as “horrific.” Some of her behaviour is described as stemming from frustration, fear and mental health issues worsened by the prison system’s treatment of Indigenous women.
Dr. Stuart Grassian, a psychiatrist with decades of experience, testified as an expert in Canadian legal challenges to prolonged “administrative segregation” (i.e., solitary confinement). His evidence showed that very limited social and environmental stimulation causes severe psychiatric harm: he described a syndrome marked by cognitive and perceptual impairments, emotional disturbances, psychosis or delirium, suicidal ideation and lasting brain dysfunction.
In the landmark 2018 B.C. Supreme Court decision (British Columbia Civil Liberties Association v. Canada (Attorney General), 2018 BCSC 62), the judge accepted Grassian’s testimony, noting that even a few days in isolation can push someone into “mental torpor” or psychotic states. That medical-psychological harm was central to the court’s finding that the legal provisions allowing indefinite solitary confinement violated prisoners’ Charter rights — particularly under s. 7 (life, liberty, and security of the person) and s. 15 (equality, especially given the disproportionate impact on individuals with mental illness and Indigenous people).
Despite being eligible for day parole since 2018, she has never applied. Perhaps leaving the prison system and starting down the path of recovery can restore her faith in humanity and herself. She now hopes for escorted temporary absences to access Indigenous ceremonies and begin healing. Her ultimate release will depend on the Parole Board of Canada, regardless of the outcome of this case.
The case is important because it highlights a new approach to criminal law. The Crown maintains the traditional approach of seeking punishment for the accused’s actions. Counsel Raining Bird is asking the court to consider why the offence was committed and understanding that provides better insight into sentencing decisions. Justice Hutchison sentenced Tobaccojuice to one year, to be served concurrently with her life sentence. This will not affect her parole eligibility dates, although her chances of a positive parole decision might be reduced.
John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. His most recent book, Acts of Darkness (Durvile & UpRoute Books), was released July 1. Hill is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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