[1] R. v. Gladue, [1999] 1 S.C.R. 688 at p. 710
[2] Justices Cory and Iacobucci, writing for a unanimous bench in Gladue, ibid. at p. 715
[3] S. Mihoeran and S. Lipinski, "International Incarceration Patterns, 1980-1990" (1992) 12 Juristat Service Bulletin 12, cited in J.V. Roberts and A. von Hirsch, "Statutory Sentencing Reform: The Purpose and Principles of Sentencing" (1995) 37 Crim. L.Q. 220-242 at pp. 228-229. The United States imprisons approximately 600 persons per 100,000 population while Canada imprisons approximately 130 persons 100,000 population. See, for example, Federal/Provincial/Territorial Ministers Responsible for Justice, Corrections Population Growth: First Report on Progress (Fredericton: Federal/Provincial/Territorial Ministers Responsible for Justice, 1997), Annex B at p. 1; U.S. Department of Justice, Bulletin: Prison and Jail Inmates at Midyear 1998 (U.S.: Office of Justice Programs, Bureau of Justice Statistics, March 1999). The report was authored by K. Gilliard; and U.S.'s The Sentencing Project, Americans Behind Bars: U.S. and International Use of Incarceration, 1995 (Washington: The Sentencing Project, June 1997) at p. 1. The report was authored by M. Mauer
[4] Appellate Justice Vancise, dissenting in R. v. McDonald (1997), 113 C.C.C. (3d) 418 (Sask. C.A.) at pp. 429-430
[5] While the percentage of offenders admitted to federal institutions for the commission of violent crimes also increased in 1990, a significant number of offenders were admitted for property crimes. (Department of Justice, Directions for Reform in Sentencing (Ottawa: Ministry of Supply and Services, 1990) at p. 17)
[6] Statistics Canada, "Prison population and costs" in Infomat: A Weekly Review (February 27, 1998) at p. 5
[7] Supra note 5 a p. 4. The ratio of dollars spent on incarceration to community supervision is estimated at 10:1 to 15:1. See, for example, Canadian Sentencing Commission, Report of the Canadian Sentencing Commission (Ottawa: Ministry of Supply and Services Canada, 1986) at pp. 42-44. The report estimates that the cost of warehousing an offender in a federal institution during the 1984-85 period was $40,672 compared with $4,508 for parole supervision. For a similar comparison between the costs of provincial incarceration and probation, see ibid. at pp. 358-359. Appellate Justice Rosenberg, writing in 1997, suggested that since the costs per inmate have remained relatively constant since 1984-85, the comparative data is likely of continued relevance. (R. v. Wismayer (1997), 33 O.R. (3d) 225 at p. 243)
[8] Section 35 of the Canadian Charter of Rights and Freedoms defines the phrase "[A]boriginal peoples of Canada" as including "the Indian, Inuit and Métis peoples of Canada". (Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.) In this paper, I have chosen to use the term 'Aboriginal' when referring to persons from these groups. In so doing, however, I do not intend to suggest that the peoples falling under the umbrella term 'Aboriginal' necessarily share the same philosophies and beliefs. Nor is it my intention to detract from the individuality of Aboriginal peoples
[9] In addition to Aboriginal offenders, other minority groups are also over-incarcerated. In Ontario, for example, urban blacks and other visible minorities are grossly over-represented in provincial jails. (J. Roberts and C. LaPrairie, "Sentencing Circles: Some Unanswered Questions" (1996) 39 Crim. L.Q. 69 at p. 78, citing statistics of Commission on Systemic Racism in the Ontario Justice System.)
[10] Pursuant to the Criminal Code of Canada, it is generally the case that an offender is to serve his or her sentence in a prison, other than a penitentiary when he or she is sentenced to a term of imprisonment for a term of less than two years, or where the aggregate total of sentences to be served consecutively does not exceed two years. (Criminal Code of Canada, R.S.C. 1985, c. C-46, s. 743.1(3) & (1)) An offender receiving a sentence of two years or more, or where the aggregate of the sentences received, to be served consecutively, is over two years is to be sentenced to imprisonment in a penitentiary. (s. 743.1(1)). In Canada, legislative powers are distributed between the Parliament of Canada and the legislatures of the provinces (ss. 91 and 92, Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5, formerly The British North America Act, 1867). The federal and provincial governments share jurisdiction in relation to correctional institutions: section 91(28) provides that Parliament has jurisdiction over penitentiaries, while section 92(6) provides that provincial legislatures have jurisdictions over prisons
[11] Figures taken from a national census completed in 1996 indicated that an estimated 799,010 identified as Aboriginal. (Supra, note 1 at p. 735.)
[12] Ibid. at p. 719, citing Minister of Justice, testimony before the House of Commons Standing Committee on Justice and Legal Affairs (Minutes of Proceedings and Evidence, Issue No. 62, November 17, 1994) at p. 62:15
[13] M. Jackson, "Locking Up Natives in Canada" (1989) 23 U.B.C. L. Rev. 215 at p. 215. Jackson suggests that the numbers of Aboriginal people incarcerated may actually be higher than these numbers suggest since government definitions of "native" vary and likely underestimate the number of prisoners that consider themselves "native". (Ibid..)
[14] Solicitor General of Canada, Consolidated Report: Towards a Just, Peaceful and Safe Society: The Corrections and Conditional Release Act -- Five Years Later (Ottawa: Solicitor General, 1998) at pp. 142-155. Similar issues exist with the indigenous peoples of Australia. For a discussion of the imprisonment of Australia's indigenous peoples, please see C. Carcach, A. Grant and R. Conroy, "Australian Corrections: The Imprisonment of Indigenous People", No. 137 (November 1999) Australian Institute of Criminology. The Australian Institute of Criminology's website is <http://www.aic.gov.au>. See also, P. Chantrill, "The Kowanyama Justice Group: A Study of the Achievements and Constraints on Local Justice Administration in a Remote Aboriginal Community", Australian Institute of Criminology. Dr. Chantrill's paper was first presented in September 1997 as part of the Institute's Occasional Seminar series. It is accessible at: <http://www.aic.gov.au/conferences/occasional/chantrill.html>
[15] See, for example, Jackson, supra note 13 at p. 216, citing Canada, Census Canada, Native and Non-native Admissions to Federal, Provincial and Territorial Correctional Institutions (1985). See also Statistics Canada, Canadian Centre for Justice Statistics, Adult Correctional Services in Canada, 1995-96 (Ottawa: The Centre, 1997) at p. 30
[16] Public Inquiry into the Administration of Justice and Aboriginal People, Report of the Aboriginal Justice Inquiry of Manitoba, vol. 1, The Justice System and Aboriginal People (Winnipeg: Public Inquiry into the Administration of Justice and Aboriginal People, 1991)
[17] Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice In Canada (Ottawa: The Commission, 1996)
[18] See, for example, Canadian Corrections Association, Indians and the Law (Ottawa: Queens Printer, 1967) and Schmeiser, D.A., The Native Offender and the Law (Ottawa: The Commission, 1974). This book was prepared by Schmeiser for the Law Reform Commission of Canada
[19] In 1979, for example, the federal and provincial governments agreed to a comprehensive review of the Criminal Code - the "Criminal Law Review". This Review generated a "Sentencing Project", which in turn appointed the Canadian Sentencing Commission. In addition, the Standing Committee on Justice and the Solicitor General considered a broad range of issues related to a number of facets of corrections, including sentencing. (Supra note 5 at p. 1.) In August 1988, this Committee recommended the establishment of a legislated statement of purpose and principles in relation to sentencing as well as the increased use of community sanctions. (Standing Committee on Justice and Solicitor General, Report of the Standing Committee on its Review of Sentencing, Conditional Release and Related Aspects of Corrections: Taking Responsibility (Ottawa: Ministry of Supply and Services Canada, August 1988))
[20] Canadian Sentencing Commission's, Report of the Canadian Sentencing Commission, supra note 7. It is ironic that at one time incarceration itself was considered a means of reform. In Canada, for example, prior to 1835, offenders were not incarcerated but hanged or flogged. The Law Reform Commission of Canada, for example, notes that incarceration was itself promoted as an alternative to hanging or flogging by proponents of sentence reform. These proponents argued that incarceration would satisfactorily address concerns with deterrence, and denunciation. In addition, since incarceration was believed to provide for self-reflection and hard-work, it was also believed to rehabilitate offenders. (Law Reform Commission of Canada, Working Paper 11: Imprisonment and Release (Ottawa: The Commission, 1975) at p. 5
[21] Supra note 16 at pp. 1 and 86
[22] S.C. 1995, c. C-22, further amended by Bill C-17, the Criminal Law Improvement Act, 1996 Can. Gaz. Part III, 1997, c. 18, s. 107.1. The former amendment came into force on September 3, 1996, while the latter came into force on May 12, 1997
[23] Supra note 1 at p. 733
[24] Ibid
[25] Ibid. at p. 723
[26] C. LaPrairie, "The role of sentencing in the over-representation of [A]boriginal people in correctional institutions" (1990) Cdn. J. Crim. 420 at p. 436
[27] Supra note 1 at p. 724
[28] Ibid. at p. 725
[29] Ibid. at p. 727
[30] Ibid. at p. 726
[31] Ibid. at p. 727
[32] Supra note 17 at p. 309
[33] Supra note 1 at p. 727
[34] Supra note 1 at p. 721, citing R. v. Williams, [1998] 1 S.C.R. 1128 at para. 58
[35] J. Rudin, "Aboriginal offenders and the Criminal Code: There is a good reason why the sentencing provisions refer specifically to natives" Commentary, The Globe & Mail (9 February 1999) A13
[36] Ibid. at p. 723
[37] Ibid
[38] Ibid
[39] Ibid. at p. 729
[40] Ibid. at p. 731
[41] Ibid
[42] Ibid. at p. 707
[43] R. v. Gladue, trial decision, February 13, 1997 [unreported]
[44] (1997), 98 B.C.A.C. 129
[45] Ibid. at 138
[46] Rowles, J.A., dissenting, while acknowledging that the offence was serious and required reflection of the principles of both general deterrence and denunciation, would have imposed a sentence of two years less a day and a supervised period of three years probation. This sentence would have addressed the sentencing principles of deterrence and denunciation while allowing the offender to proceed with her rehabilitation. In so reasoning, Appellate Justice Rowles took the position that section 718.2(e) invited a sentencing court to recognize and better the impact that systemic discrimination in the criminal justice system had on Aboriginal peoples. While this judge acknowledged the seriousness of the offence, she was also aware of the tragic nature of the offence for everyone, including the accused's children. While the defendant had an alcohol problem, she did not have a history of criminal conduct or violent acts. The success achieved by Ms. Gladue while on bail indicated that she was likely an excellent candidate for rehabilitation. In addition, Appellate Justice Rowles referred with approval to the new evidence led by the appellant which indicated the steps the applicant had taken to maintain links with her Aboriginal heritage
[47] A key aggravating factor was the fact that the offence involved domestic violence and a breach of trust inherent in a spousal relationship. The SCC wrote that the latter aggravating factor "must be taken into account in the sentencing of the Aboriginal appellant as it would be for any offender." (Supra note 1 at pp. 740-741.) The fact that really swayed the court however was that Ms. Gladue had been granted day parole in August 1997 with conditions after serving six months in a correctional centre and a little less than a year prior to the Court's decision had been granted full parole (in February 1998) with the same conditions. The conditions were that Ms. Gladue reside with her father, take alcohol and substance abuse counseling, and comply with the requirements of the electronic monitoring program. The six month jail sentence and controlled release were in the interests of both society and the accused. Based on the foregoing, the SCC did not believe it would be in the interests of justice to order a new sentencing hearing in order that Ms. Gladue's circumstances as an Aboriginal offender could be canvassed. (Ibid. at pp. 740-741.)
[48] Ibid. at 704
[49] The Court defined restorative justice 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 in on the human beings closely affected by the crime". (Ibid. at p. 726.) See also supra note 17 at pp. 12-25; supra note 16 at pp. 17-46; D. Kwochka, "Aboriginal Injustice: Making Room for a Restorative Paradigm" (1996) 60 Sask. L. Rev. 153; and M. Jackson, "In Search of the Pathways to Justice: Alterative Dispute Resolution in Aboriginal Communities" (1992) U.B.C. L. Rev. (Special Edition) 147
[50] The correct construction of a statutory provision follows from a reading of the impugned term(s) of a given provision in their grammatical and ordinary sense in their entire context, and in harmony with the scheme of the statute as a whole, the purpose of the statute and the intention of Parliament. Both intrinsic and admissible extrinsic sources concerning the Act's legislative history and the context of its enactment are the bases for determining the purpose of the statute and Parliament's intention in enacting the statute. In addition, section 12 of the Interpretation Act (R.S.C. 1985, c. I-21) is relevant to interpreting federal legislation. Section 12 provides that, "[e]very enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects."
[51] Supra note 1 at p. 711
[52] Ibid
[53] Supra note 49 at 162
[54] J.V. Roberts and A. von Hirsch, "Statutory Sentencing Reform: The Purpose and Principles of Sentencing", supra note 3 at 231
[55] Supra note 1 at 725
[56] Ibid. at p. 729
[57] Ibid
[58] Specifically, the SCC stated that "...the jail term for an [A]boriginal offender may in some circumstances be less than the term imposed on a non-[A]boriginal offender for the same offence". (Ibid. at p. 739, point 12.)
[59] Ibid. at 728
[60] Ibid. at p. 707
[61] R. v. M.C.A., [1996] 1 S.C.R. 500 at p. 567, cited in R. v. Gladue, supra note 1 at p. 729
[62] Kwochka, supra note 49 at p. 165
[63] Ibid. at pp. 172-173
[64] Supra note 10
[65] R. v. M.C.A., supra note 61
[66] Supra note 49 at pp. 162-163
[67] Ibid
[68] T. Quigley, "Some Issues in Sentencing of Aboriginal Offenders" in R. Gosse, J. Youngblood Henderson and R. Carter, compilers, Continuing Poundmaker and Riel's Quest: Presentations Made at a Conference on Aboriginal Peoples and Justice (Saskatoon: Purich Publishing, 1994) at 277, cited by Kwochka, supra note 49 at p. 163. While Quigley notes that this policy is firmly embedded in the Saskatchewan Court of Appeal, I would venture to suggest that a similar policy is entrenched amongst the appellate courts across Canada
[69] J.V. Roberts and A. von Hirsch, supra note 3 at 228-229, citing S. Mihoeran and S. Lipinski, supra note 3
[70] [1999] B.C.J. No. 1625
[71] [1999] B.C.J. No. 1411 (C.A.)
[72] Supra note 1 at 728
[73] Ibid. at p. 711
[74] Ibid. at p. 708
[75] T. Quigley, supra note 68 at 275-276
[76] Supra note 1 at pp. 724-725
[77] Ibid. at 725
[78] Ibid. at p. 728
[79] Supra note 35
[80] Supra note 1 at p. 733
[81] Ibid. at p. 729
[82] Supra note 35
[83] Bayda, C.J.S., in R. v. Morin (1995), 4 C.N.L.R. 37 at 77 (writing for the dissent, Jackson J.A. concurring)
[84] Supra note 49 at p. 165
[85] A potential problem posed by section 718.2(e) concerns the backlash that may be experienced by Aboriginal peoples owing to the perception that they are receiving 'special' treatment
[86] Justice M.E. Turpel-Lafond, "Sentencing within a Restorative Justice Paradigm: Procedural Implications of R. v. Gladue" (Fall 1999) 4(3) Justice as Healing. The quote is taken from the online version of the article, p. 6. The article may be found online at <http://www.usask.ca/nativelaw/jah_turpel-lafond.html>
[87] Supra note 1 at p. 732
[88] The SCC noted that the representations from the "relevant" Aboriginal community will "usually be that of the offender". (Ibid. at p. 738 (point 7).) This at least leaves the door open to arguing for input from another Aboriginal community where one is either unable or willing to assist the court
[89] Ibid. at p. 732
[90] J. Rudin, supra note 5, citing study commissioned by federal Ministry of Solicitor General
[91] Supra note 1 at p. 731
[92] While an Aboriginal offender can waive the right to have the court consider their particular circumstances as an Aboriginal offender in arriving at an appropriate sentence, one would not expect that this would be a frequent occurrence
[93] Where a sentencing judge has not carried out his or her duty to the extent required, an appellate court hearing an appeal of sentence on this basis is required to consider any fresh evidence that is relevant and admissible in relation to sentencing
[94] [1999] S.J. No. 626. (Q.B.). In Carratt, the accused was convicted of assault causing bodily harm and sentenced to a term of imprisonment in a provincial institution for nine months followed by nine months probation. He also received a 10 year weapon prohibition pursuant to section 100 of the Criminal Code. The accused committed an assault while under the influence and caused permanent injury to the victim
[95] [1999] A.J. No. 917 (P.C.). In this case, Mr. Ear was sentenced in relation to assault causing bodily harm and carrying a firearm in an unsafe manner. He received a 12 month jail sentence for the assault, a three month concurrent sentence for the firearms charge, and a 10 year firearms prohibition
[96] [1999] N.W.T.J. No. 63 (S.C.)
[97] [1999] B.C.J. No. 541 (C.A.)
[98] Ibid
[99] Supra note 1 at p. 728
[100] Ibid. p. 738 point 10
[101] Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples, vol. 4, Perspectives and Realities (Ottawa: The Commission, 1996) at 521
[102] See Justice C.F. Tallis, "Sentencing in the North" in B.A. Grosman, ed., New Directions in Sentencing (Toronto: Butterworths, 1980) at p. 305; Justice C.F. Tallis, "Sentencing the Native Offender" in H. Dumont, ed., Sentencing (Cowansville, Québec: Editions Yvon Blais, 1987) at p. 107, cited by Kwochka, supra note 49 at 168
[103] Supra note 5 at p. 18. The federal government in 1990 used the phrase "intermediate sanctions" to define "dispositions between imprisonment and absolute discharge and to refer to those sanctions that involve both community programs and resources". In choosing this term, the government was aware of criticisms of the phrase "non-custodial". (Ibid. at p. 16.)
[104] Ibid. at pp. 18-19
[105] [1999] B.C.J. No. 2021 (S.C.)
[106] Ibid
[107] In discussing the irony of the situation, my intention is not to lessen the severity of partner assault. However, it is the court's reasoning in arriving at its sentence that I find problematic
[108] C. LaPrairie, "Altering Course: New Directions in Criminal Justice: Sentencing Circles and Family Group Conferences" (1994) [unpublished], cited by Kwochka, supra note 49 at p. 156, n. 25
[109] Kwochka, supra note 49 at 170
[110] See, for example, S. Clark, "Crime and Community: Issues and Directions in Aboriginal Justice" (1992) 34 Can. J. Crim. 513 and E.J. Dickson-Gilmore, "Finding the Ways of the Ancestors: Cultural Change and the Invention of Tradition in the Development of Separate Legal System" (1992) 34 Can. J. Crim. 479, cited in Kwochka, supra note 49 at 170
[111] Kwochka, supra note 49 at 156, n. 25
[112] Supra note 86, citing to article on internet, p. 8
[113] [1999] M.J. No. 3799 (C.A.)
[114] Ibid.. The Court of Appeal felt that since the accused was not a threat to the community and had received a sentence under two years less a day, he was eligible for a conditional sentence pursuant to section 742.1 of the Criminal Code which permitted the court to order the offender to serve his sentence in the community. Thus the court felt that it was not necessary for it to consider the unique circumstances of Aboriginal offenders as required by section 718.2(e) of the Criminal Code
[115] [1999] B.C.J. no. 2016
[116] [1999] B.C.J. No. 541 (C.A.)
[117] [1999] O.J. No. 3411
[118] Ibid
[119] Ibid
[120] Kwochka, supra note 49 at 162
[121] This would address the present high incarceration rate for non-payment of fines, property offences, and non-violent offences
[122] Section 33(1) of the Charter provides that, "Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter." (Supra note 8.) To the extent that appellate courts serve as policy-making bodies and are the ultimate judges of the sentence to be handed out, thereby constraining the discretion and creativity of sentencing judges, a notwithstanding clause would support trial judges attempting to give section 718.2(e) or an amended version thereof its true meaning, and also serve to restrain appellate courts that might try to rein in sentencing judges interpreting section 718.2(e) in the spirt in which it was intended
[123] Only three centres currently exist (Toronto, Thunder Bay and Winnipeg) that have counseling programs for Aboriginal offenders on conditional sentences. W. Immen, "Separate court system not intent of native ruling but recognition of need for different approach shows a new understanding, specialists say" The Globe & Mail (24 April 1999) A4
[124] Supra note 86, citing to article on internet, p. 8
[125] Supra note 5 at p. 20
[126] Ibid. at p. 19
[127] Section 91(27) provides that the Parliament of Canada has the power to make laws relating to the criminal law, including the procedure in criminal matters, except in relation to the constitution of the courts of criminal jurisdiction. Section 91(24) of the Constitution Act, 1867, provides that provincial legislatures have the power to make laws relating to "[t]he administration of justice in the province, including the constitution, maintenance, and organization of provincial courts, both of civil and of criminal jurisdiction, and including procedure in civil matters in those courts." This provision authorizes both provincial policing and the prosecution of offences under the Criminal Code, even though there is concurrent, unexercised, federal jurisdiction in this area. Section 92(14) provides that the provinces have exclusive jurisdiction over the establishment of courts of criminal jurisdiction, and this is expressly excluded from federal power by section 91(27). Thus criminal trials occur in provincial courts however pursuant to section 91(27) the rules of procedure and evidence in criminal matters are expressly included within the scope of federal power. Section 92(15) authorizes provincial legislatures to make laws relating to "[t]he imposition of punishment by fine, penalty, or imprisonment for enforcing any law of the province made in relation to any matter coming within any of the classes of subjects enumerated in this section." (See P.W. Hogg, Constitutional Law of Canada, 3d ed. (Toronto: Carswell, 1992), pp. 467-469.)
[128] Supra note 9. The authors cite the Commission on Systemic Racism in the Ontario Criminal Justice System as authority for the fact that "the prison admission rate in 1992/1993 for blacks was twice as high as it was for aboriginals". (Ibid..) For "high frequency" offences, i.e., drug trafficking, the rate of prison admissions for whites was 32/100,000 versus 701/100,000 for blacks. (Ibid..)
[129] Kwochka, supra note 49 at p. 164
[130] Supra note 5 at p. 21
[131] Ibid. at p. 17. In choosing this term, the government was aware of criticisms of the phrase "non-custodial". The federal government in 1990 used the phrase "intermediate sanctions" to define "dispositions between imprisonment and absolute discharge and to refer to those sanctions that involve both community programs and resources". (Ibid. at 16.)
[132] Supra note 1 at p. 723
[133] Supra note 10, section 718.2(e)