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Case of ex-Toronto gang leader sparks debate on correctional system fairness

A security guard walks outside of the Toronto South Detention Centre in Toronto on Aug. 27, 2015.

Mark Blinch/The Globe and Mail

As Alejandro Vivar recovers from multiple bullet wounds at Toronto South Detention Centre, he has become emblematic of the challenge of balancing public safety with rehabilitation and the difficulty of severing gang ties.

More than three weeks ago, while Mr. Vivar led a morning workout class in Christie Pits Park, the former gang leader was shot several times by an unknown gunman, who also hit a bystander. On Friday, Mr. Vivar, on parole at the time of the shooting, was discharged from hospital and sent to a provincial jail until a parole hearing is scheduled, his lawyer confirmed.

Vivar's return to jail, despite being a victim of the shooting, has sparked debate about fairness in the correctional system. A parolee who has not breached any conditions of their release can still be punished if their release is deemed a potential threat to public safety.

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"The message being sent to any individual is not only are you responsible for your actions, but you're responsible for the actions of every other person with whom you may have contact," said Kim Pate, executive director of the Canadian Association of Elizabeth Fry Societies. "That's ludicrous."

Mr. Vivar first made headlines for a murder charge in 2003, but was later acquitted when a witness providing testimony admitted to having perjured himself at a preliminary hearing. He was later the top target for Toronto police in Project Cheddar, the 2007 drug and weapons raid that landed him a 10-year prison sentence for firearms and narcotics possession.

The sequence of events that quickly turned Mr. Vivar from shooting victim to inmate highlights the difficult decisions Correctional Services Canada (CSC) and the Parole Board of Canada must make.

When CSC suspends parole, and the parole board deliberates revoking altogether, the two agencies consider the impact it may have on the community and how victims, as well as the offender, will be affected. In the case of Mr. Vivar, the nature of the shooting, in broad daylight and with a second victim, led CSC, the body responsible for overseeing offenders, to request that Toronto police arrest Mr. Vivar when he was released from hospital.

"[Day parole] is a privilege, not a right. It's a privilege to be in the community," said Holly Knowles, a spokeswoman for the Parole Board of Canada, adding that the decision-making process for parole suspension or revocation largely defers to considerations over public safety.

As gangs settle long-standing grudges, the public is at risk of becoming collateral damage, as Mr. Vivar has acknowledged. Last week, Mr. Vivar posted a photo on Instagram, taken in a hospital room. In the caption, he acknowledges the safety risk of teaching his class in a public space. "I want to sincerely apologize for putting any of you in danger. My goal has and will always be to bring health, joy and happiness to others through fitness." The post was subsequently deleted.

Still, his lawyer contends Mr. Vivar did not commit any crime and is not aware of any breaches of his parole. In Mr. Vivar's parole documents, there are six conditions he is required to meet: avoiding persons involved in criminal activity, seeking employment or remaining employed, not using drugs, owning only one mobile phone, disclosing all finances and not gambling.

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CSC notes that an offender does not need to breach any conditions in order to end up back in custody. A parolee can taken back into custody if the CSC believes their presence in the community poses an elevated risk. There no set time frame under which this process operates.

"When we're suspending [parole], we're doing so because there's some kind of risk in the community that we believe we can no longer manage the way we have been managing [risk]," said Kyle Lawlor, a spokesperson for CSC. Though he could not comment on specific cases, he did say cases such as Mr. Vivar's are "difficult."

Critics disagree, arguing that holding a victim responsible for actions out of his control sets an unsustainable legal standard and is contrary to due process.

"Yes, public safety is a priority, but the presumption is that we're looking at the actions of an individual that pose a risk to public safety, not the actions of others towards that individual," said Ms. Pate.

Both Mr. Vivar's lawyer and family have expressed concern over his transfer to Toronto South. His family worries the jail is ill-equipped to deal with Mr. Vivar's unhealed wounds. The sprawling facility is the subject of multiple health-related complaints and is "notorious for its inadequate medical care," said John Struthers, Mr. Vivar's lawyer.

Within the past few years, by the Parole Board of Canada's own admission, Mr. Vivar has taken "credible" steps to distance himself from gang life. A high rank, it seems, can undermine efforts.

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"It's a totally different thing to be a leader," saidJooyoung Lee, a sociologist at the University of Toronto. "Those kinds of statuses are stickier. They're more durable. They follow you around even after you have officially tried to disavow or distance yourself from that world."

In multiple columns for the Kingston Whig-Standard, Mr. Vivar did just that – disavowed his life as a gang member and wrote extensively on his desire to transform himself.

Police believe Mr. Vivar was targeted and estimate the suspect was between 25 and 30 years old. For younger gang members, a high-profile shooting, such as the one in Christie Pits Park, can establish a reputation. "They're looking to do things that will win them acclaim and respect," Mr. Lee said. "One of the biggest things you can do to gain respect is to commit lethal or near lethal violence against a potential rival, especially if the person has a past history in a gang."

Family members do not believe Mr. Vivar knew the assailant. That the police have yet to make any arrests is of no surprise to Mr. Lee. "It falls in line with the code of the street: People know, but they don't want to talk because being a snitch is almost the worst thing you can be on the street."

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