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Sentencing aboriginal offenders.

R. v. Gladue (1999) hit the front page of the Globe and Mail as the seminal case on sentencing Aboriginal offenders. Indeed that was the initial response of those working within the criminal justice system. The question now is whether Gladue will change Canadian jurisprudence or whether the systemic injustice toward Aboriginal people will continue unabated.

Jamie Tanis Gladue had pleaded guilty to the manslaughter of her common law husband and had been sentenced to three years imprisonment. Alcohol was a factor in the commission of the crime. There were also significant elements of provocation in that the husband acknowledged his infidelity, before telling her, "... she was fat and ugly and not as good as the others." In determining sentence, the judge noted Ms Gladue was Cree but did not live within an Aboriginal community. The Court then held there "were no special circumstances arising from ... [a] boriginal status that he should take into consideration" in deciding the appropriate disposition. The case then proceeded through the British Columbia Court of Appeal to Canada's highest court.

The Supreme Court of Canada in Gladue bluntly acknowledged the discrimination within the judicial system toward Aboriginal people and their over representation in Canadian penal institutions, noting

"... the excessive imprisonment of Aboriginal people is only the tip of the iceberg insofar as the estrangement of the Aboriginal peoples from the Canadian justice system is concerned."

The event giving rise to this analysis of the plight of Aboriginal people was proclamation of section 718.2(e) of the Criminal Code of Canada. This new legislation urges sentencing courts to consider "all available sanctions other than imprisonment ... with particular attention to the circumstances of Aboriginal offenders."

A "framework of analysis" has been provided by the Supreme Court. In particular, "... the unique background and systemic factors which may have played a part in bringing the particular offender before the courts" must be considered. This would involve contemplating imposing a sentence which, while meaningful to the offender's community, would also satisfy the entrenched concepts of deterrence and denunciation. The value of restorative justice was underscored because "the prevention of crime as well as individual and social healing cannot occur through other means."

The Supreme Court expanded on the restorative justice theme and noted many Aboriginal communities have traditionally emphasized this concept. The Court provided this definition:

"... In general terms, restorative justice may be described as an approach to remedying crime in which it is understood that all things are interrelated and that crime disrupts the harmony which existed prior to its occurrence, or at least which it is felt should exist. The appropriateness of a particular sanction is largely determined by the needs of the victims, and the community, as well as the offender. The focus is on the human beings closely affected by the crime."

The Report of the Task Force on the Criminal Justice System and its impact on the Indian and Metis People of Alberta, Justice on Trial (The Cawsey Report) recognized the distinctiveness between the traditional British and Aboriginal approach to justice. The Aboriginal model incorporated the following goals:

* The focus is on problem-solving and restoration of harmony.

* Restitution and reconciliation are used as a means of restoration.

* The community acts as a facilitator in the restorative process.

* The offender is impressed with the impact of his action on the total.

* The wholistic [sic] context of an offenceis taken into consideration including moral, social economic, political and religious and cosmic considerations.

* Stigma of offences is removable through conformity.

* Remorse, repentance and forgiveness are important factors.

* Offenders take an active role in the restorative process.

This restorative philosophy appears to be enshrined in the new provisions which state the sentencing court must craft a sentence which fulfills sentencing objectives including rehabilitation, reparation to the victim and to the community, and the promotion of a sense of "responsibility in offenders and acknowledgment of the harm done to victims and the community."

Parliament, in these recent amendments, introduced conditional sentences in section 742.1. A conditional sentence is a term of imprisonment ordered to be served within the community. Such a sentence is available where the offence is not one punishable by a minimum term of imprisonment and the court "imposes a sentence of less than two years." The other prerequisite is that the community would not be endangered by the offender serving the sentence in its midst. A conditional sentence should provide an infrastructure for a court to create a restorative disposition.

What then is the nature of the evidence which should bc produced in the sentencing of Aboriginal offenders? Mr. Justice Cory, in Gladue, provided a guide to the type of evidence to be adduced:

"For this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code? What understanding of criminal sanctions is held by the community? What is the nature of the relationship between the offender and his or her community? what combination of systemic or background factors contributed to this particular offender coming before the courts for this particular offence? How has the offender who is being sentenced been affected by, for example, substance abuse in the community, or poverty, or overt racism, or family or community breakdown? Would imprisonment effectively serve to deter or denounce crime in a sense that would be significant to the offender and community, or are crime prevention and other goals better achieved through healing? what sentencing options present themselves in these circumstances?"

A case which predates Gladue but which illustrates the appropriate evidence to be called at an Aboriginal sentencing hearing is R. v. A.G.A. (1998), a sexual assault case. Submissions were heard from four witnesses. The Chief of the Band Council for the First Nation Band involved explained his knowledge and the degree of remorse of the offender, provided a character assessment, and described the offender's many community activities. He put forward the solution proposed by the affected community which included assistance by Elders in rehabilitating the accused. The Chief informed the Court, "... that to members of the A. First Nation Band, the criminal justice system is one imposed upon them and which they, therefore, resent and often mistrust."

Other participants included the Health Director of the Band who explained the various alcohol and drug support groups. She spoke to the degree of community support for the particular offender as well as his remorse.

Two Elders assisted the Court. One, the father-in-law of the accused, had experienced incarceration within the criminal justice system and explained it had ".. left him with a healthy disrespect for the law and substantial bitterness towards the judicial system." It was his opinion the level of community support would enable the accused to comply with a conditional sentence order.

The other Elder, an aunt of the accused, responded to the issue of how women within the community would respond if the offender were not incarcerated: "... she answered that the women were still friendly and supportive of the Accused."

A conditional sentence was imposed.

A not insignificant hurdle is the degree of thought and work counsel must now put into a sentencing hearing. The process will be more costly and the question of how the expense will be met, if not privately funded, has not yet been addressed. Conditional sentences provide a framework for returning Aboriginal justice principles to the Aboriginal people. Whether it may be so applied is currently an issue under reserve by the Supreme Court of Canada in R. v. Wells, a decision expected to be released this fall.
COPYRIGHT 1999 Legal Resource Centre of Alberta Ltd.
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Copyright 1999 Gale, Cengage Learning. All rights reserved.

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Author:Bryant, Marian E.
Date:Oct 1, 1999
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