Sentencing The Aborigonal Offender
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Sentencing The Aborigonal Offender Sentencing The Aborigonal Offender Document Transcript

  • Chapter 18 SENTENCING THE ABORIGINAL OFFENDER A. LEGISLAnON §18.1 Section 718.2(e)of the Criminal Code] provides that, 718.2 A court that imposes a sentence shall also take into consideration the following principles: (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with parti- cular attention to the circumstances of aboriginal offenders. §18.2 Section 38(2)(d) of the Youth Criminal Justice Ace provides parallel legislation: 38.(2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in section 3 and the following principles: (d) all available sanctions other than custody that are reasonable in the cir- cumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons ... §18.3 Sentencing principles of restorative justice are an important part of our law.' Sections 718.2(e) of the Criminal Code and 38(2)(d) of the Youth Criminal Justice Act are not merely restatements or codifications of existing sentencing law either with respect to the general principle of restraint in the use of imprisonment or the common law practice res- pecting aboriginal offenders. The Supreme Court of Canada has stated: In our view, s. 718.2(e) is more than simply a re-affirmation of existing sentencing principles. The remedial component of the provision consists not only in the fact that it codifies a principle of sentencing, but, far more importantly, in its direction to sentencing judges to undertake the process ] R.s.C 1985, c. C-46, as am. 2 S.C 2002, c. 1, as am. Morrisey (2000), 148 CCC (3d) 1, at pp. 22-23 (S.CC); Proulx (2000), 140 CCC (3d) 449, at p. 464 (S.CC); Bunn (2000), 140 CCC (3d) 50S, at p, 515 (S.CC); M.N., [2004] Nt!. J. No.2 (Nt!. CA.).
  • Sentencing of sentencing aboriginal offenders differently, in order to endeavour to achieve a truly fit and proper sentence in the particular case ... What s. 718.2(e)does alter is the method of analysis which each sentencing judge must use in determining the nature of a fit sentence for an aboriginal offender." §18.4 Statistics Canada" reports that 68.5 per cent of the aboriginal popu- lation in Canada now resides off-reserve. Section 718.2(e) of the Criminal Code, however, does not distinguish those who follow a non-traditional lifestyle from those who follow a traditional path, nor is a person disentitled to the application of the provision merely because he or she chooses urban over reserve life or is in transition. In Gladue." a 20-year- old aboriginal woman stabbed her common law husband to death in a "near murder". Indeed, she stabbed him twice, the second time after he had fled in an attempt to escape. Ms. Gladue entered a guilty plea to manslaughter and the court imposed a sentence of three years imprison- ment. On appeal the sentence was allowed to stand only because the appellant had - six months after incarceration - been granted full parole with restorative justice terms and provision for alcohol and substance abuse counselling. That result was clearly in the interests of both the appellant and society and took into account the unique circum- stances of the aboriginal offender. There is no geographic exclusion in section 718.2(e) of the Criminal Code. The fact that Ms. Gladue and her common law husband resided in Nanaimo, British Columbia for a time .and before that in Mcl.ennan, Alberta - "a regular community" - did not disentitle her to a sentence that fully embraced the principle of restorative justice. Indeed, according to the Supreme Court: Section 718.2(e)applies to all aboriginal offenders wherever they reside, whether on- or off-reserve, in a large city or a rural area. Indeed it has been observed that many aboriginals living in urban areas are closely attached to their culture. See the Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples, vol. 4, Perspectives and Realities (1996), atp.521: Throughout the Commission's hearings, Aboriginal people stressed the fundamental importance of retaining and enhancing their cultural identity while living in urban areas. Aboriginal identity lies at the heart of Aboriginal peoples' existence; maintaining that identity is an essential and self-validating pursuit for Aboriginal people in cities. And at p. 525: 4 Gladue, [199911 S.c.R. 688, at p. 708. 5 Statistics Canada, Aboriginal Peoples Suroev, January 21,2003. 6 Supra, note 4, at pp. 695-98.
  • Sentencing the Aboriginal Offender Cultural identity for urban Aboriginal people is also tied to a land base or ancestral territory. For many, the two concepts are inseparable . . . . Identification with an ancestral place is important to urban people because of the associated ritual, ceremony and traditions, as well as the people who remain there, the sense of belonging, the bond to an ancestral community, and the accessibility of family, community and elders. Section 718.2(e) requires the sentencing judge to explore reasonable alternatives to incarceration in the case of all aboriginal offenders. Obviously, if an aboriginal community has a program or tradition of alternative sanctions, and support and supervision are available to the offender, it may be easier to find and impose an alternative sentence. However, even if community support is not available, every effort should be made in appropriate circumstances to find a sensitive and helpful alternative. For all purposes, the term "community" must be defined broadly so as to include any network of support and interaction that might be available in an urban centre. At the same time, the residence of the aboriginal offender in an urban centre that lacks any network of support does not relieve the sentencing judge of the obligation to try to find an alternative to imprisonment? §18.5 Jason Skani pled guilty to participating in the robbery of a convenience store in Mill Woods, Alberta in the early morning hours of March 15, 2001.At the time, Mr. Skani was wearing a sweatshirt with the hood up and a scarf that obscured.his face. Creckol ]. imposed a conditional sentence: In my view, Mr. Skani's childhood on the Cold Lake First Nation's Reserve, where he was raised at first by his grandmother, but as an adoles- cent soon found himself alone and subject to the vagaries of the justice and social welfare systems, is the kind of systemically disadvantaged history that the law requires that I consider. In my view, a life beginning in the absence of his mother, continuing with her when her own troubles prevented her from parenting, and culminating in life on the street as an adolescent, resulting in incarcerations and dependency ... The facts in this case are illustrative of the systemic factors which lead to the over-incarceration of aboriginal offenders: poor economic and social conditions; lack of education; lack of employment opportunities due to lack of education or training as a youth; and family dysfunction and break- down. Mr. Skani originates from a background bearing all the hallmarks of tragedy associated with cultural alienation. 7 Ibid., at pp. 735-36.
  • Sentencing If community support and supervision are available, it is possible to impose a non-custodial sentence. Community is broadly defined so as to include a network of support and interaction available in an urban-aboriginal environment. I find there is ample evidence here to show that community support and supervision are available to Mr. Skani in the urban-aboriginal community described so eloquently by the witnesses. Mr. Skani's involve- ment takes him out to reservations as well, where he lives within the traditional culture for periods of time. That, too, offers support and reaffirmation for his goals." §18.6 In Pangman' four members of the Manitoba Warriors were charged with conspiracy to traffic cocaine. All of them were members of the group's executive living in Winnipeg and they all had criminal records of varying length and degree. The sentencing judge imposed sentences of 30 months to four years' imprisonment after accounting for pre-trial custody. Kevin Cook's sentence, however, was reduced from 30 months' imprisonment to 18 months' imprisonment and 18 months' probation by the ManitobaCourt of Appeal. The court observed that section 718.2(e) of the Code is not merely a codification of the existing state of the law but rather has a remedial purpose for all offenders, focusing as it does on "the concept of restorative justice. This is not reverse discrimination; what is required is not favouring of aboriginal offenders over other offenders but taking into consideration the unique circumstances of Canada's aboriginal 'people, whether they reside on or off reserve, or in urban or rural areas. In the Manitoba warriors' case the court remarked that: [B]esides being remedial with respect to all offenders, the subsection requires judges to pay particular attention to aboriginal offenders. The amendment altered"the method of analysis which each sentencing judge must" use in determining the nature of a fit sentence for an aboriginal offender ... This is not reverse discrimination. It is an acknowledgment that "to achieve real equality, sometimes different people must be treated differently. This methodology must be applied even to aboriginal people living in urban centres and even to those with fragmented connection to the community .... 10 S Skani, [2002]A.J. No. 1579, at paras. 60-67 (Q.B.). 9 (2001), 154 CCC (3d) 193 (Man. CA.); see also Wilson, [2003] B.CJ. 620 (S.C), and Laliberte (2000), 143 CCC (3d) 503 (Sask. CA.). 10 Fangman, supra, note 9, at pp. 204-05.
  • Sentencing the Aboriginal Offender §18.7 It was not the intention of Parliament to prefer the aboriginal offender over other offenders.'! As the court in Fangman rightly observed; the legislation was does not mandate better treatment for aboriginal offenders. It does, however, reflect a legislative acceptance that there are serious social problems with respect to aboriginal people that may, in a given case, require more individualized, creative and innovative solutions: .Parliament has chosen to give the judiciary a statutory reminder of this principle and to ensure that it is not forgotten when aboriginal offenders are being sentenced.F . §18.8 Section 718.2(e) is accordingly intended to provide the necessary flexibility and authority for sentencing judges to resort to a restorative model of justice in sentencing aboriginal offenders and it demands that judges look hard for alternative sanctions to imprisonment. The Court has. indicated that where aboriginal background and systemic' factors have played a significant part in bringing a particular offender before the court, the sentencing judge must consider those factors in evaluating whether imprisonment would actually serve to deter or denounce crime in a way that would be meaningful to the community of which the offender is a member. In many instances, more restorative sentencing principles will gain primary relevance precisely because the prevention of crime as well as individual and social healing cannot occur through other meansY §18.9 Conventional concepts of sentencing are inappropriate for the most part for aboriginal offenders because those concepts have not responded well to the needs, experience and perspectives of aboriginal people or aboriginal communities." Accordingly, what is required in all cases where an aboriginal person is the offender is an approach through restorative justice to alternative sanctions including community-based sentences." This approach does not dictate the imposition of different sentences for all aboriginal offenders." §18.10 Disparity of sentence among offenders should not be a concern as it would bea natural consequence of the individualized focus of 11 Pelletier (2004), 186 CCC (3d) 1 at para. 17 (B.CCA.) 12 Ibid. at p. 219, per Huband J. 13 Gladue, supra, note 4, at p. 725. 14 Gopher (2006), 205 CCC (3d) 1 at para. 35 - 37 &-42 (Sask. CA.). 15 Kakegamic (2006), 81 O.R. (3d) 664 at p. 672 (ant. CA.); see also Jensen (2005), 195 CCC (3d) 14, at para. 27 (ant. CA.). 16 Pelletier, supra, note 11, at para. 18; see also Gopher, supra, note 14 at para. 38 - 41 & 44.
  • Sentencing restorative principles. Indeed, neither the contemporary jurisprudence, nor s. 718.2(e) of the Criminal Code mandates better treatment for aboriginal people when they are being sentenced." Rather, sentencing courts are directed to consider the serious and unique social issues pertaining to aboriginal people in aid of sanctions that are truly meaningful to aboriginal peoples." The task is relevant even where the offence istoo serious for community based sentences and it may be that the length of a term of imprisonment is apparently less than that given non-aboriginal offender." Typically however, the more violent and serious the offence, the more likely, as a practical reality, that the terms of imprisonment of aboriginals and non-aboriginals will be similar." Of course, when the offence is one of striking violence and the circumstances require emphasis on denunciation and deterrence; aboriginal offenders are likely to receive the same sentences as their non- aboriginal counterparts." Indeed, Iacobucci J. in Wells observed that: Notwithstanding what may well be different approaches to sentencing as between aboriginal and non-aboriginal conceptions of sentencing, it is reasonable to assume that for some aboriginal offenders, and depending upon the nature of the offence, the goalsof denunciation and deterrence are fundamentally relevant to the offender's community. As held in Gladue, at para. 79, to the extent that generalizations may be made, the more violent and serious the offence, the more likely as a practical matter that the appro- priate sentence will not differ as between aboriginal and non-aboriginal offenders, given that in these circumstances, the goals of denunciation and deterrence are accorded increasing significance.f §18.11 In Sackanay, the Court of Appeal for Ontario stated: Admittedly, both Gladue and the later Supreme Court of Canada decision in R. v. Wells ... acknowledge that sentences should not be automatically reduced for aboriginal offenders, and that for more serious and violent offences sentences are likely to be similar whether the offender is aboriginal or not. Still, Gladue mandates a different approach to sentencing aboriginals because of the systemic or background factors that playa part in bringing them before the court. The appellant's background is a poignant example of just how much the upbringing of an aboriginal can differ from that of most Canadians. The appellant was born in Moose Factory. When he was an infant his natural father was killed. Both his mother and his stepfather who 17 Morris (2004),186 CCC (3d) 549 at para. 55 - 57 (B.CCA.). 18 Jensen, supra, at para. 26 - 28. 19 H. (V.A.), (2003),171 CCC (3d) 309 at para. 38 - 41 (ant. CA.). 20 Anaquod, [2005]S.J.No. 531 at para. 6 (Sask. CA.). 21 Carriere (2002),164 CCC (3d) 569 (ant. CA.). 22 Wells (2000), 141 CCC (3d) 368; at p. 386 (S.CC); see also Gates (2002),163 CCC (3d) 274 (B.CCA.) ..
  • Sentencing the Aboriginal Offender raised him were alcoholics. Domestic violence permeated the household. When the appellant was eight years old, he tried to commit suicide. When he was nine, he resorted to drinking to relieve the tension and loneliness of his upbringing. He often tried to run away from home. He spent most of his adolescent years in group homes or in custody. He has a grade 10 education and few skills. He has suffered from the effects of alcohol and drug abuse. Although the appellant's crimes warrant a jail sentence, the hardships he has suffered should be taken into account in determining a fit sentence.f B. ABORIGINAL OFFENDER PROCEEDINGS §18.12 The possibility of exceptional sentencing solutions requires particular attention to detail in pre-sentence reports, documentary evi- dence and viva voce testimony." Procedurally, it is incumbent upon counsel and/ or the sentencing judge to see that there is a full evidentiary record before the court. On a Gladue hearing, in addition to information concerning the particular circumstances surrounding the offence and its effects upon the community, there should also be evidence before the court of:" (a) the offender's aboriginal, Inuit or Metis" status; (b) the band, community or reserve the offender comes from and whether the offender lives on or off the reserve or in an urban or rural setting; (c) whether the offender has been affected by family or community breakdown, poverty, overt racism, alcohol or substance abuse in the community; (d) the particulars of treatment facilities, the existence of a justice committee and any alternative measures or community-based programmes that the offender may access; In addition, the sentencing judge should have: (a) a general understanding of systemic poverty, alcohol and substance abuse, cultural and racial bias in the community at large; and 23 Sackanay (2000), 47 O.R. (3d) 612, at p. 615 (ant. CA.); see also H. (DA) (2003), 171 CCC (3d) 309 (ant. CA.). 24 M.E. Turpel-Lafond, "Sentencing Within a Restorative Justice Paradigm: Procedural Implications of R. v. Gladue" (1999),43 CL.Q. 34; see also L.L.J., [1999]B.CJ. 2016 (S.C). 2S Laliberte, supra, note 9, at pp. 534-35. 26 Powley, [200312S.CR. 207.
  • Sentencing (b) evidence to determine the issue whether or not crime prevention could be better served by principles of restorative justice or by imprisonment in the case under consideration. §18.13 It is not acceptable for a court in sentencing an aboriginal person to proceed to judgment in the' face of a deficient record." While interested participants share in the responsibility of collecting and placing before the court information necessary for a meaningful aboriginal sentencing hearing." the judge'S contribution has been described as an "affirmative duty" . This element of duty is a critical component of s. 718.2(e) ... There is no discretion as to whether to consider the unique situation of the aboriginal offender; the only discretion concerns the determination of a just and appropriate sentence. Where a particular offender does not wish such evidence to be adduced, the right to have particular attention paid to his or her circumstances as an aboriginal offender may be waived. Where there is no such waiver, it will be extremely helpful to the sentencing judge for counsel on both sides to adduce relevant evidence. Indeed, it Is to be expected that counsel will _ fulfill their role and assist the sentencing judge in this way. However, even where counsel do not adduce this evidence, where for example the offender is unrepresented, it is incumbent upon the sentencing judge to attempt to acquire information regarding the circumstances of the offender as an aboriginal person. Whether the offender resides in a rural area, on a reserve-or in an urban centre the sentencing judge must be made aware of alternatives to incarceration that exist whether inside or outside the aboriginal community of the particular offender. The alternatives existing in metropolitan areas must, as a matter of course, also be explored. Clearly the presence of an aboriginal offender will require special attention in pre-sentence reports. Beyond the use of the pre-sentence report, the sentencing judge may and should in appropriate circumstances and where practicable request that witnesses be called who may testify as to reason- able alternatives.f" §18.14 Once the evidentiary record is complete, the sentencing judge must carry out a three-step inquiry. The judge must." 27 Poitras (2006),214 CCC (3d) 366, at para. 11 (B.CCA.) 28 Kakegamic, supra, note 15 at pp. 670 - 677; see also John (2004),182 CCC (3d) 273 at pp. 281 - 287 (Sask. CA.) and Cappo, [20051S.J.No. 720 (Sask. CA.) 29 Gladue, supra, note 4, at pp. 731-32. 30 Laliberte, supra, note 9, at p. 533; see also MS.R., [2002]B.CJ. No. 845, at para. 13 (CA.), following Gladue, supra, note 4, at para. 85: "Where a sentencing judge at the trial level has not engaged in the duty imposed by s. 718.2(e) as fully as required, it is incumbent upon a court of appeal in considering an appeal against sentence on -this basis to consider any fresh evidence which is relevant and admissible on sentencing."
  • Sentencing the Aboriginal Offender (a) examine the unique systemic or background circumstances com- mon to aboriginal offenders as a group; and (b) consider the particular circumstances of the offender which resul- ted in him committing the crime for which he is before the court; and (c) strive to arrive at a sentence which is informed, just and appro- priate in the circumstances having regard to the information obtained in steps (i) and (ii). §18.15 Tribal courts have been set up across the United States to address the same problems that we see in Canada. They are not simply administrative tribunals to handle minor regulatory matters, but are actual trial courts. Those Healing to Wellness courts, as they are some- times called, are independent tribal justice systems that work to meet the specific needs of individual communities. While some experimentation with such a model is attempted from time to time, there is no present parallel in Canada to the American tribal court system. Rather, the focus in this country is an acknowledgement of the problem and a commit- ment to tackle the hard issues. For example, an aboriginal persons' court has been established in the city of Toronto, Ontario. What distinguishes the court from other courts is the staff. Those working in the specialized court have training and resources at hand as well as a thorough understanding of the range of programmes and services available to aboriginal people in the city. The court staff all work to assist the judge and counsel gathers the information required for the three-step Gladue inquiry. Currently the court presides over judicial interim release hearings, guilty pleas are accepted and sentencing hearings take place. Trials are presently deferred to the ordinary courts." C. OVERREPRESENTATION §18.16 The drastic overrepresentation of aboriginal peoples within both the Canadian prison population and the criminal justice system reveals a sad and pressing social problem; indeed, it could fairly be termed a crisis in the Canadian criminal justice system. The unreasonably high number of aboriginal offenders in penitentiaries is itself underscored by a dispro- portionately high number of suicides by aboriginal offenders in the 31 Aboriginal Legal Services of Toronto, Gladue (Aboriginal Persons) Court, Ontario Court of Justice - Old City Hall: Fact Sheet (October 3,2001).
  • Sentencing correctional system .. In a country such as Canada where aboriginal citizens represent only about 2.8 per cent of the population, it is very troubling that aboriginal people account for 18 per cent of the federally incarcerated population nationwide.Y'The picture is even more disturbing when broken down provincially." In 1999, 12 per cent of the population of Manitoba consisted of aboriginal people. However, that same year 66 per cent of all prisoners on remand status and 70 per cent of the total population of provincial inmates were aboriginal. In 1994,Saskatchewan, when aboriginal people accounted for about 10 per cent of the population, had 72per cent of those sentenced to correctional centres and 57 per cent of those sentenced to penitentiaries .as aboriginal offenders." The statistics show that aboriginal persons have a 10- to 25-times greater chance of going to jail than non-aboriginal offenders. Lillies Terr. Ct. J. observed: The problem of over-representation of First Nations people in the Yukon jails is well known and differs little from similar over-representation of First Nations people in the jails of 'other provinces and territories. In general, while only 20% of the Yukon population is aboriginal, First Nations' people represent between 60% and 75% of the jail population." These statistics are especially prejudicial for many aboriginal offenders who, because of their background, are more adversely affected by incarceration and less likely to be "rehabilitated" thereby, since imprison- ment is often "culturally inappropriate and' regrettably discrimination towards them is so often rampant in penal institutions"." §18.17 Any justice system that produces such race-based disparities such as this needs desperately to pay "particular attention to the circumstances of aboriginal offenders"." Section 718.2(e)is designed to remedy the 32 Correctional Services of Canada, Aboriginal Offender Statistics, May 23, 2003. 33 Laliberte, supra, note 9, at p. 531; Pangman, supra, note 9, at p. 205. 34 Canadian Centre for Criminal Justice Statistics, Adult Correctional Services in Canada, 1993-1994 (Ottawa: Statistics Canada, 1994), Table 41; see also M. Jackson, Locking Up Natives in Canada (1988-89), 23 V.B.C. 1. Rev. 215, and The Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada (1996). 35 Schafer, [2000] Y.J. No.7, at para. 18 (Terl. Ct.). 36 Gladue, [199911 S.C.R.688, at p. 725. 37 T. Quigley, "New Horizons in Sentencing?" (1996),1 Can. Crim, L.R. 277, at p. 278.
  • Sentencing the Aboriginal Offender excessive imprisonment of aboriginal people, which is "the tip of the iceberg insofar as the estrangement of the aboriginal people from the Canadian. criminal justice system is concerned=." D. HEALING CIRCLES §18.18 Poverty, substance abuse, lack of education, and lack of em- ployment opportunities for aboriginal people are a fact of life for many. There is also bias and racism. The courts now recognize that the criminal justice system has not responded very well to aboriginal offenders and are turning to the aboriginal communities themselves for answers. These communities are being asked by judges for more direct input in sentencing proceedings, whether judges were thinking of prison-based or community-based sentences. Increasingly, aboriginal communities have welcomed the opportunity to be involved in the criminal justice system and to work with judges. §18.19 Beginning with the Archambault Report in 1938,many reports on sentencing have stressed the importance of community involvement in the sentencing process. It is now an accepted proposition that the sentencing process must address the underlying causes of crime, and the best way to achieve this is with the assistance of the individual offender's community. The community may also provide a sentencing judge with information about an offender that will be useful either in recommending a detention facility with programmes sensitive to the particular offender's needs, assessing the fitness of sentences and, if there is to be incarceration, post-custody release plans. §18.20 As early as 1971,the Court of Appeal for Ontario recognized that cultural background and social relationships should be especially recognized and considered in assessing the fitness of a sentence for an aboriginal offender." Proof of an aboriginal bloodline in and of itself, without more, will not be considered likely to constitute a mitigating consideration. Evidence concerning the offender's cultural background in the context of the particular case, however, may well be a powerful factor in mitigating the sentence. In the case of Firemani" the offender, an aboriginal, was convicted of manslaughter. He came from a remote aboriginal community 38 Gladue, supra, note 26, at p. 721. 39 Fireman (1971), 4 CC.C (2d) 82 (Ont. CA.); J. (C.) (1997), 119 CCC (3d) 444 (Nfld. CA.). 40 Supra, note 29; Naqitannk (1986),26 CCC (3d) 193 (N.W.T.CA.).
  • Sentencing in Northwestern Ontario where he had little contact with English- speaking society. The Ontario Court of Appeal ruled that even a short term of imprisonment in a penitentiary would be an especially substantial punishment because he would be ripped from his northern community and placed in an institution where he would have difficulty with communication (he spoke virtually no English). The court also addressed the great loneliness that this man would feel in custody. The original sentence of 10 years' imprisonment was reduced on appeal to two years' imprisonment. This recognition that the cultural and traditional circumstances of an offender may require a sentence reduction was reaffirmed in F. (A.),41 a case concerning an elder of the Sandy Lake First Nation, an Oji-Cree community in Northwestern Ontario. The offender, a trapper, had spent all of his life in that remote community and had only limited knowledge of the English language. In reducing the sentence from that which the court considered otherwise appropriate, it was said that imprisonment would be more .difficult for him and would produce in him a loneliness "that is far greater than any sense of loneliness he may have experienced in isolation in the wildemess'C" Due in part to cultural differences, lengthy terms of imprisonment are predictably disastrous on native people who still live on the land, especially on those who live in remote communities." §18.21 Long before the establishment of a formal Canadian. criminal justice system aboriginal communities had systems for resolving con- . flicts and controlling antisocial behaviour. In recent years courts have begun to re-examine traditional aboriginal methods of conflict resolution. Important initiatives have been taken at the level of community-based healing for aboriginal offenders. One such method is direct investigation at the instance of a trial judge. Indeed, in Hunter" the Alberta Court of Appeal approved of the sentencing judge's order for an investigation and report into the social conditions, alleged political corruption and purported financial mismanagement on the Stoney Indian Reserve at Morley in order to fully appreciate the particular circumstances of the 41 (1994),35 CR. (4th) 62 (Ont. Geli. Div.), affd. (1997),101 O.A.C 146, at p. 150 (CA.), leave to appeal to S.CC refused [1997] S.CCA No. 464. 42 Ibid. at p. 67, CR.; see also Curley, Issigaitok and Nagmalik, [1984] CN.L.R. 72 (N.W.T.CA). 43 P. (J.A.) (1991),6 CR. (4th) 126, at p. 141 (Y.T. Terr. Ct.). 44 (1998),125 CCC (3d) 121 (Alta. CA), revg. (1997),211 AR. 110 (Prov. Ct.).
  • Sentencing the Aboriginal Offender aboriginal offender to be sentenced. As well, the sentencing judge may invite the community to file the results of any healing initiatives that have taken place in the community without the court's involvement prior to sentencing." Another initiative is the invitation to justice committees or counsels of tribal elders to advise the judge directly on the fitness of contemplated sentences." A major initiative in recent history is the direct participation by members of an offender's community in the sentencing/healing process through the procedure of the healing circle. Each of these techniques accepts as a premise the cultural differences between aboriginal and westem societies and the need for our criminal justice system to proceed in a partnership that accommodates both value systems. Restorative justice is the touchstone: Restorative justice has been defined as the creation of a positive environ- ment for change, healing and reconciliation for offenders, victims and communities. It is a condemnation of criminal actions rather than per- petrators and an integration of offenders into the community rather than a stigmatization or marginalization of them. Within this framework the offender is encouraged to accept responsibility and to make reparations to the community. The restorative approach defines crime as a violation of one person by another and focuses on problem solving and the repair of social injury. It is a system in which the community is facilitator, where restoration is used as a means of reconciling the parties, and where the liability to the victim is recognized and redressed.Y §18.22 It is in this regard that the sentencing circle has been a particularly important procedural innovation." The sentencing circle appears to be particularly suited to those cases where the offender is likely to receive a suspended sentence or a period of imprisonment followed by a period of probation to be served when an offender retums to his or her aboriginal community." The process may also be useful in assisting the judge in determining whether a constitutional exemption from the application of mandatory firearms prohibitions should be granted.f The use of the sentencing circles in the criminal law sentencing process of an aboriginal person has become increasingly prevalent in recent years. The form it takes, and the actual roles and responsibilities of the judge, prosecutor and defence counsel vary considerably." Generally, however, in using 45 Sellon (1996), 140 Nfld. & P.E.I R. 313 (Nfld. TD.). 46 H. Lilies and B. Stuart, Creative Justice: "The Role of the Community in Sentencing" (1992), Vol. 8, No.4 Justice Report I, at pp.3-4. 47 Laliberte (2000), 143 CCC (3d) 503, at pp. 529-30 (Sask. CA.). 48 ].(j.) (2004), 192 CCC (3d) 30 at pp. 35 - 49 & 55 (Nfld. CA.). 49 . Peters, [1998] S.J. No. 706 (Prov. Ct.). 50 Johnson (1994),31 CR. (4th) 262 (Y.T.CA.). 51 Manyfingers, [1996] AJ No. 1025 (Prov. Ct.).
  • Sentencing the sentencing circle, community members may contribute directly to sentencing decision-making, involving other community members by virtue of a hearing and interactive pre-sentence report. §18.23 Healing circles employ an interactive predetermination report procedure in aid of a proposed plan that will differ in some mix or measure from the sentences that courts ordinarily impose. It has proven to be a very valuable method of tailoring a fit sentence that involves the community in the administration of the plan." Courts have noted the educative and tangible deterrent effect of locating the sentencing/ healing proceedings in local communities, where possible, but the pro- ceedings may take place where the court ordinarily sits." As a practical matter, such a court hearing is much less formal than a conventional one and, in fact, maybe held wherever there is sufficient space and in a location that is agreeable to all of the participants. It can be convened in any room large enough to accommodate the audience in attendance, for example, community auditoriums, school gymnasiums or motels. There may be an inner and outer circle, but seating arrangements are not critical to the process. If there is an inner circle, it should be composed of people directly involved in the discussions; the outer circle should be composed of those who wish to observe and speak only when called upon. The inner circle always includes the following: the judge; Crown counsel: the offender and, if the offender is represented, defence counsel; court reporter; the offender's family members, community members who are indirectly involved in the offence; aboriginal elders; police officers; probation officers; experts who have had dealings with the participants; and victim(s) or a representative if a victim cannot attend and a representative is needed to balance the consultative discussions." The circle is an open court proceeding that is recorded; translation is pro- vided where necessary. Ordinarily, participants are welcomed and intro- duced, facts of the offence and offender are presented and then the discussion is opened to the circle. The proceedings are not time limited and can explore any number of subjects, but ordinarily they include an assessment of the underlying causes of the crime and the impact of the crime on the victim's family and on the larger community. There is neither sworn testimony nor cross-examination of the participants; no rules regulate the statements that may be made. A healing plan is effectivelynegotiated among equal participants and an arrangement is 52 Morin (1995),134 5ask. R. 120, 101 WAC: 120, at p. 129 (CA.), revg. (1993), 114 5ask. R. 2 (Q.B.). 53 F. (A.) (1994),35 CR. (4th) 55 (Ont. Gen. Div.), 54 Morin, supra, note 41; ]oseyounen, [1995] 5.J. No. 362, at paras. 28 and 31 (Prov. Ct.).
  • Sentencing the Aboriginal Offender eventually reached by consensus. 55 Of course, the judge has the final word on the implementation of the plan. A feature common to all healing circles is the participation of the offender's community members in fashioning an appropriate response to the crime committed by that offender. §18.24 The goal of the circle is to achieve an eventual healing in the whole community, including the victim and the offender. All interested parties participate. While sentencing circles in each community are significantly different in many respects, common to all circles is the opportunity for the community to participate and assume responsibility. The circle setting continues to forge new partnerships between the justice system and the community, and provides a positive working environment for developing a common desire to explore new avenues for sharing responsibility. In extracting the best from the community and the justice system, the circle often produces wonderful surprises that can dramatically alter the usual and expected sentencing disposition.i'' §18.25 Lillies and Stuart describe the process as follows: The judge removes his gown, and takes a seat along with everyone else. The defence counsel sits with his/her client and the client's family. The Crown, R.CM.P., probation officer, courtworker, community members, witnesses, and other accused persons are left to find a comfortable spot in the circle. Additional chairs can be placed in an outer circle to accommodate latecomers, but once a case has started, protocol discourages people from leaving the circle. After the opening remarks by the judge, all persons in the circle introduce themselves. The Crown and defence lawyers make their submissions at the beginning as they would normally do, although they are not required to stand. Thereafter, the community members in the circle take over. They seldom need coaxing. They too remain seated while speaking. The discussions, while informal, are often intense and emotional. They focus on the needs and rehabilitation of the offender and the need to protect the community. And although the judge is still responsible and accountable for making the final decision, his role during the hearing changes to that of a chairperson- rapporteur.Y . 55 J. Roberts and C Laprairie, "Sentencing Circles: Some Questions" (1997), 39 Crim. L.Q. 69. 56 Webb, [199111 CN.L.R. 148, at para. 31 (Y.T. Terr. Ct.); Labelle (2002), 163 CCC (3d) 404 (Alta. CA.). 57 H. Lilies and B. Stuart, supra, note 36, at pp. 3-4.
  • Sentencing §18.26 One of the judge's duties in the circle process is to act as a discreet facilitator to allow the participants to express themselves." Often participants need trained support workers." One of the most important things these professional workers do is identify power imbalances bet- ween offenders and victims. Judges need this information to make sure adequate support is provided. It goes without.saying that truly volun- tary participation of the victim, if there is one, is of principal importance. Victims may participate in a variety of ways and degrees, including: giving victim impact statements, giving consent but not participating, participating through a third party or participating fully. However, the victim's wish not to participate in the process does not determine that there will be no circle. In this respect it should be mentioned that in special circumstances (to be carefully ascertained and examined by the trial judge) a victim may be represented at the circle by a surrogate. Such a representation may particularly be desirable or appropriate in a sexual assault situation. In other words, the presence of the victim is usually essential to the success of a sentencing circle but there will be cases where a circle can be successfully held with a surrogate taking the victim's place.6O §18.27 A not guilty plea and consequent trial, in and of itself, is also not determinative, provided the offender, at the time of the circle proceed- ings, embraces the process and admits responsibility for the wrong- doing." §18.28 The circle procedure is based upon two fundamental principles. First, the misconduct may not be the fault of the offender alone: the community must bear some responsibility if it did not respond to cues that preceded the offence because every community, like every family, bears a responsibility for the health and well-being of its members. Second, the community as a whole, not just the individual offender, should contribute to a solution to the problems that engendered the offence, A successful healing circle will end, therefore, with a consensus concerning the appropriate disposition of the case, though the final disposition is, of course, issued by the trial judge. The ultimate dis- position recognizes community resources that can be mobilized to assist 58 Naappaluk (1993), 25 CR. (4th) 220 (Dutil J.CQ.). 59 R. Ross, "Victims and Criminal Justice: Exploring the Disconnect" (2002),46 Crim. L.Q. 483; R.G. Green, Justice in Aboriginal Communities: Sentencing Alternatives (Saskatoon: Purich Publishing, 1998). 60 Taylor (1997), 15 CR. (5th) 48, at p. 78 (Sask. CA.); R. (S.) (1994), 29 CR. (4th) 187 (Nfld. ToO.);Moses (1992), 71 CCC (3d) 347 (Y.T. Terr. Ct.). 61 Taylor, supra, note 49, at p. 89.
  • Sentencing the Aboriginal Offender in the healing process. In the end, the process educates the whole community on the effects of the wrongful conduct, enhances community interest in the proceedings and contributes to the legitimacy of the criminal justice system as it touches the community. Rupert Ross, an Assistant Crown Attorney for the District of Kenora in the Northwestern Region of Ontario, notes: Conventional wisdom has it that general deterrence focuses on the Canadian Community as a whole. It speaks to national concerns, expresses national revulsions requiring national denunciation and sets national standards. I have a problem with this in an Ojibway-speaking community three hundred air miles north of Thunder Bay. It is my sense that its inhabitants are not in the least touched by a Globe and Mail report of a deterrent sentence announced by the Court of Appeal in Toronto. They are, however, immediately and deeply affected by any sentence handed down in their own community. In fact, it is precisely the isolated and self contained nature of those communities which guarantees that measures aimed at effecting general deterrence will have that intended effect. These communities because of their size and their isolation and their sense of community are capable of learning lessons from events themselves, and so have less need of the courts drafting responses aimed at making lessons clear. In the result there is, in my view, much less need to do something I find very difficult to do, sacrificing an individual and his family for the sake of communicating a message.62 §18.29Significant deterrence is achieved through the public nature of the sentencing/healing process itself: 111is deterrent effect is magnified when the sentencing takes place in a circle and many members of the community participate.f In fact, some courts have noticed that, in certain circumstances, there may be much less of a deterrent effect when an offender is simply removed from the community for a period of time and then returns to the community feeling that he or she deserves no further .sanction. In R. (5.) it was stated: Collective responsibility for the offender and victim must be taken by the community. One leader put the problem before me quite well. It was his view that when a person is sent away to prison he returns and that ends the matter. It is perceived that he has served his time and therefore shouldn't be questioned any further about the matter. Supposedly he is cured and rehabilitated. In fact, the opposite often occurs. He has not been cured and he feels that he no longer deserves any sanctions from his own community. 62 R. Ross, "Leaving Our White Eyes Behind: The Sentencing of Native Accused" (1989),3 CN.L.R. 1, at p. 11; [acobish (1997), 155 Nfld. & P.E.I.R. 197,481 A.P.R. 197, (sub nom. J. (C,)) 119 CCC (3d) 444 (Nfld. CA.). 63 Gingell (1996),50 CR. (4th) 326 (Y.T. Terr. Ct).
  • Sentencing Even if on probation he is answerable to a probation officer outside the Innu community." _ §18.30 Having to face and be answerable to, or shamed, in one's own community may, in the circumstances of a particular case, be a far more difficult and punitive sentence than simple removal for a period of time with no requirement for real post-sentence reintegration. TI1ehealing circle dispositions are restorative in objective and the process has been aptly called reintegrative shaming.f §18.31 Although the punishment produced by the healing Circle is intended to be restorative, it may have strong elements of retributive justice; for example, aboriginal people have, for centuries, used banish- ment as a method of redressing wrongdoing. Punishment could take many forms: expulsion, ostracism while remaining in the community or simple exclusion from some community activities. In Taylor66 the Saskatchewan Court of Appeal did not overturn a period of banishment as a term of probation where the recommendation for banishment was rooted in a concern to use isolation and its consequential self-discipline, self-treatment and self-examination to help break a generational cycle of abuse. §18.32 The circle approach to healing requires two important factors to be demonstrated before a court will ordinarily agree to convene such a hearing. First, the offender must have a firm intention to rehabilitate him- or herself and must agree to be bound by the decision of the circle. Second, the community must agree to become involved for the offender's sake." The community infrastructure and facilities available for rehabili- tation may be the most important considerations when exploring a community-based sentence. The circle process surveys the needs of the aboriginal offender and the community and explores what resources are available and which may benefit the offender most. It may be that in certain cases imprisonment may only delay needed community-based rehabilitation programming, counselling or other programmes that are not available in custody and that the circle participants believe necessary. In addition, other factors favouring a healing circle include the following:" (a) the disputed facts have been resolved in advance; 64 R. (5.) (1994),29 CR. (4th) 195, at p. 205 (Nfld. ToO.). 65 T. Quigley, "New Horizons in Sentencing?" (1996),1 Can. Crim. L.R. 277, at pp. 286-87. 66 Taylor, supra, note 49. 67 Alaku, [1994] NW.T.R. 193 (Dutil J.CQ.). 68 Johns (1995), 66 B.CA.C 97, 108 WAC 97, [1995] Y.J. No. 132, at para. 25a (CA); c:v., [1995] Y.J. No. 186 (Terr. Ct.).
  • Sentencing the Aboriginal Offender (b) the defendant must have genuine roots in the community in which the circle is held and from which the participants are drawn; (c) the defendant must agree to be referred to the healing circle and be bound by its direction; and (d) the complainant must be willing to participate and has been sub- jected to no coercion or pressure in so agreeing. §18.33An important question asked during the circle'sentencing/healing process is whether removal from the community would achieve some goal that outweighs the deleterious effect of removing the offender from family, community and community rehabilitation.f" Judges who have participated in the process often speak positively of the experience. More information is made available to the court because those who know the offender best are encouraged to participate. The process encourages victim/ offender reconciliation. The victim is encouraged to participate in the process .directly. For his or her part, the offender will receive a constructive form of censure for the offence. The offender will be taught about the harm suffered by the victim and the community at large and will participate in a process that allows for "making it right", The process recognizes that at the time the sentence is imposed the offender may need a great deal of education and counselling before fully appreciating what he or she has done. Better information is provided to the court on the exact needs of the offender and the community's capacity to meet those needs and viable solutions tailored to the specific offender can then be found. Moreover, the broader community is con- sulted and asked to advise the court of its views on why the wrongdoing was committed, how such offences may be prevented in the future and what the community as a whole is able to contribute to the process. Underutilized resources are recognized and deeper social problems, such as poor education, inadequate transportation, limited social programmes, alcoholism, gas sniffing, unemployment, sexual abuse and so on, are addressed to bring about change." §18.34 Finally, courts have undeniably recognized that the use of healing circles is part of a "reclamation" process as aboriginal communities struggle to regain control over their own affairs. In many ways, the circle is a matter of moving back to the future. Most interestingly, it shows that creative solutions, which accommodate traditional aboriginal culture, 69 Bill (1998),13 c.a. (5th) 125, at p. 137 (B.C.S.C); Socobasin (1995), 147 N.5.R. (2d) 225, 426 A.P.R. 225 (N.5.5.C). 70 See, e.g., Moses, supra, note 49; Webb, supra, note 45; Brown (1992), 13 c.R. (3d) 346 (Alta. c.A.); Cheekineio (1993), 80 c.c.c. (3d) 143 (Sask. Q.B.).
  • Sentencing values and beliefs and which also serve the accepted goals of sentencing, can be found. Consider the words of Stuart C]. Terr. Ct. in Jacob: There will be a next case. There have been many other similar cases. There are right now, within our communities, within our institutions, children, young boys, young men, with stories similar to Marcel Jacob. Unless we change what we do - we as families, communities, professionals - there will be many more "next cases". How many Marcel Jacob's do we need before we appreciate that if we always do what we have always done, we will always facewhat we always face - the next case to sentence, the next victim to heal. The next case, like so many before, will leave in its wake the.broken lives of . victims; shattered families; angry, fearful and frustrated communities; burned out, despairing professionals, and young men sitting in jails, grow- ing more disconnected, more hopeless and ultimately more dangerous. The next case will bring out angry, fearful, frustrated friends and family of the victim and citizens demanding retribution. Punishment is sought as a quick fix for anger and fear. It never is - either a quick fix or a solution for very much. I have always known that harsh sentences garner public support for the judiciary. I have also always known that when a youthful offender returns to his community older, more disconnected and dangerous after a long jail sentence and commits another, often more vicious crime, few will blame the court. They should. The finger of public condemnation shifts to correc- tions. The court can elude public disapproval for the next offence, as most will recognize we did our job - we imposed the very harsh sentence the community sought. The cycle persists, as the community again calls for a harsh sentence. The next case involves a new victim, a different, usually more serious crime, but the same offender. There is hope we all might probe this tragedy to find what is necessary to prevent at least some of the parade of "next cases". We must do more than debate whether the sentence should have been more or less. We must all do the demanding, difficult moral work to question whether what we are now doing is contributing to the next case. This case marks a deeper recognition of the greater need to build constructive connections within communities than to build state-dominated justice resources. Communities, not the state, must lead the "sea change" needed to foster community well-being ... we have the potential to do much better . . . be open to how much more can be achieved working together in an integrated system than what we can achieve working alone . .. until we extend our understanding of what We do beyond the parameters of our responsibilities, we will not see the value of holistic responses ... We need to extend our understanding of our impact beyond the horizon of our individualroles in processing cases ... Most important, we need to invite all voices into a dialogue about change. Each voice must
  • Sentencing the Aboriginal Offender be respected. The voices must span the entire system and reach deeply into our communities - from offenders and victims to voices from the business, faith and professional communities. Any change that only involves the "justice professionals" cannot amount to much more than tinkering. Fundamental change calls for all of the "village" to be involved, and to share responsibility ... Imagine for a moment that the cumulative effect of all the abuse youth such as Marcel endure creates a festering mass of anger, pain, frustration, and an irrepressible yearning to strike out at authority. Think of this mass as a large rock - so large that no family, no community, no professional, no agency can alone lift this rock to a better place. Everyone tries. Repeated efforts leave them exhausted, burned out, despairing and resigned to failure. Yet if all took on the challenge in a coordinated effort, the rock can be moved. Marcel was too much for his family to manage. He was too much for social workers, probation officers, judges, psychologists - too much for anyone person or agency to manage alone. So many times in dealing with young people like Marcel everyone struggles essentially alone, without an integrated effort that reaches far beyond the specific resources they possess. They all do their jobs, but the job needed to make the difference does not get done. As long as we fail to work together, we will fail to make a difference." §18.35 Canada's experience with aboriginal people has demonstrated that conventional sentencing procedures and dispositions are largely incapable of addressing the causes of criminal conduct in aboriginal communities. For recidivism to be reduced sentences must be both .meaningfulto the offender and seen as legitimate by the community. The most effective and just way, in my view, that the sentencing process can assist with the reduction of aboriginal jail populations, other than by simply not putting aboriginals in jail, is to sentence in a manner which reduces rates of aboriginal recidivism. This requires an understanding of what kind of sentence will most effectively work in the aboriginal context and thereby reduce the probability of reoffence.72 §18.36 Section 718.2 of the Criminal Code and section 38(2)(d) of the Youth Criminal Justice Act, as well as the developing case law in this area, provide the tools, a direction and an opportunity for change. One issue is crystal clear: the problem of aboriginal overrepresentation in Canada will continue to increase unless all participants in the criminal justice system work harder. The early data is quite disturbing! Despite the enactment of Bill CAl in 1996, Aboriginal over-representation appears to be increasing in Nova Scotia, Quebec, Ontario, Manitoba, Saskatcheweri, Alberfa, and British Cohirnbia. This is a disturbingfinding, especially because the 1999-2000 provincial inmate populations should 7! Jacob, [2002] YJ No. 49, at paras. 2-6, 143-72 (Terr. Ct.). 72 Auger, [2000] A.J. No. 784, at para. 61 (Q.B.).
  • Sentencing have been reduced, not only by s. 718.2(e),but also by other 1996 reforms designed to decrease the use of imprisonment: the codification of principles of restraint in Bill C-41, statutory recognition of adult diversion, the creation of conditional sentences and provisions designed to reduce the use of imprisonment in default of fines.73 73 J. Rudin and K. Roach, "Broken Promises: A Response to Stenning and Roberts' 'Empty Promises' " (2002),65 Sask. 1. Rev. 3, at p. 34.
  • Sentencing, "' , " SEVENTH EDITION", '::."-. ;"',; r;;" .',:' FL. Clayton C. Ruby ..'". , i..': Breese Davies . , Delmar Doucette ', _. "j' Lexi s Nex is ®
  • .. .': PREFACE'" , .. -.j Of all the recurring aspects of a criminal triaC,'serit~ndng i~ the part counsel most often deal with inadequately. there, is little, of the excitement that characterizes much of criminal" law; mbst of the actual sentencing is discretionary: The prin<;ipr~~, controlling' the,~*ercis~ ()! that discretion, however, are not obscure; they are merely unknowri.among the profession. Every practitioner keeps a few cases of note tucked away in the back of his orher mind, but thIs,!s hl3;r9Jy~nad~qWite approach to a sentencing problem. ' ' "'" ,., ," " This text attempts to canvass the law of sentencmg,but it does 'not include all. cases. The object has been, where possible, to setout and analyze principles so that more effective submissions can be made to assist the sentencing judge. English cases have been relied on, where applicable, for principle and ,:,., procedure. However, insofar as quantum of sentence is concerned, it ,must be remembered that England has a different institutional system than we do; therefore, no real comparison is possible. This work will be kept up to date with revisions as the law of senten- cing develops. We would be grateful to any members of the profession who would be good enough to write with criticism or suggestions of any sort; it is only with the help of the profession that this book can remain a useful guide to sentencing in Canada. In this book, masculine gender has been used to avoid referring to both genders concurrently, e.g., "he/she". No sexist connotation should be inferred. Whenever the masculine gender is used in this text, readers should assume a reference to the feminine as well. The preparation of this, the seventh edition, was greatly assisted by a large number of people. I enlisted the assistance of an incredible group of co-authors: Breese Davies, Delmar Doucette, Sarah Loosemore, Jessica Orkin and Caroline Wawzonek. It was a pleasure working with all of them. I owe them a tremendous debt of gratitude. In addition, Adriel Weaver contributed greatly to the chapter respecting the Youth Criminal _ i. 'r Justice Act. Law students Emma Haydon, Mabel Lai, Gabriel Ho, Blake Chapman, Fadi Yachoua, Sanford Riley and Hilary Dudding generously volunteered their time to research developments in sentencing jurisprudence and assist in the chapter on range of sentence. My articling students Tanya Thomspon and Ildiko Erdei went above and beyond their regular responsibilities to assist with all aspects of this edition. I am grateful to Daniel Brodsky, who continues, edition after edition, to Otter yaluable insights into the sentencmg of native offenders, and to Justices Gilles Renaud and David Cole, whose contributIOns to past editions were so significant and important that not to acknowledge them would be unthinkable.
  • x Preface I would also like to thank ,lilY legalassistant Mandy Machin, who has patiently assisted with this book from the fourth edition onwards. My thanks are also extended to Larissa Mair and Sarah Batista. ' MfU1yother'mdividual~hav~ '~~ntributed in various ways to the previous six editions 'of, this work, 'and I remain forever in their debt: with the public<;ltion of the seventh edition, they have become too numerous to list for fear of fuissi,ngany of them. But they allknow who ','th ' '" , ",'" , , " ,,' ~~ '" : ',.,. , , t am also "ery grateful .toLexisblexis Canada ,Inc.'for assistance with theediting of this maliu~criI't: Responsibility for the work as a' whole remain?, of course, my own. ' , Cliiytoh C:E.uby -Toronto, Ontario , 'March 2008 r,j