Author:	Susan Haslip BA, LLB University of Ottawa
Subjects:	Canada Criminal Justice Criminal Law Canada Imprisonment Indigenous peoples - Canada (Other articles)
Issue:	Volume 7, Number 1 (March 2000)
Category:	Refereed Articles

Contents

• Introduction
• Sentencing Reform, Aboriginal Offending and Aboriginal Alienation
• Problems Arising with Practical Application of Section 718.2(e)
• Remedial Nature of Section 718.2(e)
• Implications of Remedial Interpretation
• Restorative versus Retributive Elements
• Disparity in Sentencing
• Influence of Appellate Courts
• Nature of Offence
• Difference in Treatment of Aboriginal and Non-Aboriginal Offenders
• Role of Judiciary and Counsel and the Circumstances of Aboriginal Offenders
• Aboriginal Community
• Additional Concerns
• Recommendations
• Legislative Amendments
• Additional Recommendations
• Conclusion
• Notes

Introduction

1. In the forum of the criminal trial, the state's interests are posited against the interests of the offender. The sentencing process reflects a similar battle that has historically favoured the state.[1] Incarceration has been the state's weapon of choice in its battle with offenders. Canada has had occasion to frequently rely on this weapon: while Canada is considered a world leader in areas of progressive social policy and human rights,[2] it's over-reliance on incarceration has resulted in Canada having the third highest rate of incarceration per capita of western democracies - behind only the United States and Switzerland.[3]

2. While incarceration has been "successful" as a means of separating an offender from society, it was recognized from very early on that, as a means of achieving the broader public goals of deterrence, denunciation and rehabilitation, and the more specific goal of offender rehabilitation, it was failing miserably. In Canada, for example, Commissions and Inquiries have reported since the early 1900s that incarceration fails to reduce crime rates[4] and that moderation in the use of incarceration for serious offences was critical. Despite such cautions and recommendations, however, prison sentences have continued to be a commonplace solution, even for non-violent and/or so-called 'victimless' crimes. Canada's Department of Justice, for example, reported that the highest percentage of admissions to provincial institutions in 1990 was attributable to minor property and alcohol-related driving offences, while the next highest admissions were for theft, possession of stolen goods and break and enter. Three out of every ten admissions were for fine default.[5] While there has been a slight decline in the trend towards increased use of incarceration of late, Statistics Canada reports that the trend continues.[6]

3. Canada's over-reliance on incarceration has come with a price. During the 1988-198[9] period, for example, the cost of warehousing offenders across Canada was 6.79 billion dollars.[7] While over-incarceration is a problem with the general population, it is of particular concern to Canada's Aboriginal peoples (Indian, Inuit and Métis peoples)[8] both urban and rural, living on or off-reserve.9 Disproportionately high numbers of Canadian Aboriginal peoples are warehoused in federal and provincial jails.[10] In the mid-1980s, for example, while Canada's Aboriginal peoples comprised approximately two percent of the Canadian population,[11] 10.6% of the federal penitentiary male population was Aboriginal,[12] while 13% of the federal penitentiary female population was Aboriginal.[13] By 1997, Aboriginal peoples represented approximately three percent of the Canadian population and 12% of the federal male penitentiary population.[14] At the provincial level, the trend towards the over-incarceration of Aboriginal offenders is even more pronounced, particularly in the western provinces.[15]

4. Concerns with the costs associated with over-reliance on prison as a sanction and the disproportionate jailing of Aboriginal peoples spawned a flurry of government Reviews, Commissions, Standing Committees, Public Inquiries,[16] a Royal Commission,[17] and other reports[18] over the past decades.[19] In March 1987, for example, the Canadian Sentencing Commission provided a report to the federal government in which it detailed a number of proposed amendments to the Criminal Code of Canada (also referred to as the Criminal Code). In particular, it recommended that the Criminal Code be amended to include a declaration of purpose, the principles of sentencing; and an increase in emphasis on community-based sanctions.[20] In the summer of 1988, the Report of the Standing Committee on its Review of Sentencing, Conditional Release and Related Aspects of Corrections adopted these recommendations. In 1991, the Aboriginal Justice Inquiry of Manitoba described the justice system in Manitoba as having failed Aboriginal peoples on a "massive scale".[21] In 1996, the Canadian government, in response to concerns with the problem of over-incarceration and its associated costs, and the more specific problem of the over-incarceration of Aboriginal peoples, finally introduced sentencing legislation designed to amend the Criminal Code of Canada. Bill C-41, An Act to Amend the Criminal Code (sentencing) and other Acts in consequence thereof,[22] came into force in September of 1996 and incorporated many of the recommendations contained in the Canadian Sentencing Commission's 1987 report.

5. The sentencing amendments have created a great deal of controversy. One of the most controversial amendments is the addition of a provision at section 718.2(e) of the Criminal Code that "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention paid to the circumstances of [A]boriginal offenders." The other provision generating a great deal of controversy is the provision for a conditional sentence order at section 742.1 of the Criminal Code whereby a sentencing judge has the discretion to order an offender sentenced to a term of incarceration in a provincial institution (i.e., receiving a maximum sentence of two years less a day) to serve his or her sentence in the community pursuant to a conditional sentence order.

6. In this paper I critically assess the likelihood that section 718.2(e) will address problem of the "tragic over representation of [A]boriginal people in prisons".[23] I argue that in view of the limited effect that sentencing reform has on the causes of Aboriginal offending, and the many problems associated with the practical application of section 718.2(e), that the federal government's reliance on section 718.2(e) as a basis from which to expect a reduction in the over representation of Aboriginal offenders in Canadian penal institutions is equivalent to having both feet planted firmly in the air. The Supreme Court of Canada's interpretation of, and direction on, section 718.2(e) in R. v. Gladue,[24] (Gladue) and post-Gladue decisions involving Aboriginal offenders, are used to illustrate the problems with the practical application of section 718.2(e). I advance a number of recommendations that would infuse section 718.2(e) with more substance, allowing sentencing judges and appellate courts to maximize the effect that sentencing reform can make in the area of Aboriginal over representation in Canadian penal institutions, thereby providing a solid base from which to anticipate a reduction in this over representation.

   Sentencing Reform, Aboriginal Offending and Aboriginal Alienation

7. The most significant factor that impinges upon the likelihood that section 718.2(e) will be able to reduce the over representation of Aboriginal peoples in Canadian penal institutions is the limited ability of sentencing reform to impact upon the causes of Aboriginal offending and alienation. The Supreme Court of Canada in Gladue acknowledges that sentencing reform in and of itself will not "remove the causes of [A]boriginal offending and the greater problem of [A]boriginal alienation from the criminal justice system".[25] LaPrairie cautions that understanding the over representation of Aboriginal peoples in the criminal justice system as a problem to be addressed by this system is "simplistic and misleading and impedes finding real and long-lasting solutions to the over-representation problem".[26]

8. A key reason for this is that the factors that form the underlying bases for Aboriginal offending and Aboriginal alienation from the criminal justice system are not addressed by sentencing reform. For many Aboriginal peoples, decades of dislocation and lack of economic development have resulted in "low incomes, high unemployment, lack of opportunities and options, lack or irrelevance of education, substance abuse, loneliness, and community fragmentation".[27] These factors result in a higher incidence of crime among Aboriginal peoples.

9. The decades of dislocation is directly attributable estrangement from family, which finds its roots in government relocation programs, the required attendance of Aboriginal children in residential schools, and separation of children from families. The SCC recognized the dichotomy that exists between western society's emphasis on the traditional sentencing goals of deterrence, separation and denunciation which are frequently "far removed from the understandings of sentencing held by these [Aboriginal] offenders and their community" as a "significant problem" experienced by Aboriginal peoples in contact with the justice system.[28] While cautioning that it did not wish to imply that all Aboriginal communities and peoples have the same understanding of sentencing and justice,[29] the Court felt comfortable in making the statement that "most traditional [A]boriginal conceptions of sentencing place a primary emphasis upon the ideals of restorative justice"[30] and noted that "the different conceptions of sentencing held by many [A]boriginal people share a common underlying principle ... the importance of community sanctions".[31] (emphasis in original) The Royal Commission on Aboriginal Peoples attributes the criminal justice system's failure in relation to Aboriginal peoples to the very different world views of Aboriginal and non-Aboriginal people on such basic elements as the substantive content of justice and the path by which justice is achieved.[32] The Court has acknowledged that "for many, if not most [A]boriginal offenders, the current concepts of sentencing are inappropriate because they have frequently not responded to the needs, experiences, and perspectives of [A]boriginal people or [A]boriginal communities."[33]

10. Widespread bias and racism against Aboriginal peoples within Canada translates into systemic discrimination within the criminal justice system[34] further serving to alienate Aboriginal peoples. This systemic discrimination is felt by Aboriginal peoples in a number of ways including more charges being laid against Aboriginal people than non-Aboriginal people. In addition, Aboriginal people spend less time with defence counsel than do non-Aboriginal people.[35] This, in turn, results in both more and longer prison terms for Aboriginal offenders than non-Aboriginal offenders and bail is refused more frequently to Aboriginal accused than non-Aboriginal accused.[36]

11. Despite the fact that innovations in sentencing cannot "remove the causes of [A]boriginal offending and the greater problem of [A]boriginal alienation from the criminal justice system",[37] however, sentencing judges have an integral role to play in remedying the injustice that has been, and continues to be, wrought against Canada's Aboriginal peoples. Sentencing judges, for example, are the "decision-makers who have the power to influence the treatment of [A]boriginal offenders in the justice system. They determine most directly whether an [A]boriginal offender will go to jail, or whether other sentencing options may be employed, which will play perhaps a stronger role in restoring a sense of balance to the offender, victim and community, and in preventing future crime".[38]

12. According to the SCC, Parliament, through sentencing reform as evidenced at section 718 of the Criminal Code, and through specific sentencing directives in relation to Aboriginal offenders, "has, more then ever before, empowered sentencing judges to craft sentences in a manner which is meaningful to [A]boriginal peoples".[39] While sentencing remains an individual process and a sentencing court, in arriving at an appropriate sentence, is required to continue to strive to find the appropriate sentence for the particular accused for the particular offence committed in his or her community, the Court also stated that "a critical component of s. 718.2(e)"[40] is a judicial duty in relation to section 718.2(e): "[t]here is no discretion as to whether to consider the unique situation of the [A]boriginal offender; the only discretion concerns the determination of a justice and appropriate sentence".[41] Judges have a "judicial duty to give its remedial purpose real force".[42] Despite the existence of this judicial duty at section 718.2(e), however, the Supreme Court of Canada's interpretation of, and direction on, this provision suggests a number of reasons why trial and appellate courts in Canada will have a difficult time giving the provision the remedial effect envisioned by the Court and the legislature.

    Problems Arising with Practical Application of Section 718.2(e)

13. Following the coming into force of the new sentencing provisions, there was a great deal of controversy surrounding the application of the new provisions. A key issue arising with the principles generally concerned whether the inclusion of sentencing principles in the Criminal Code simply represented a codification of existing sentencing principles and jurisprudence and was, therefore, a restatement of the law, or whether it required something further. With respect to section 718.2(e), the controversy concerned whether the requirement at section 718.2(e) that the use of incarceration for all offenders is to be employed as a last resort and that attention is to be paid to the circumstances of Aboriginal offenders was simply another way of emphasizing restraint in sentencing and that sentencing was an individual process or whether this section demanded something more? If section 718.2(e) demanded something further, would this not result in a difference in how a sentencing court treated Aboriginal and non-Aboriginal offenders? If so, how could this difference in treatment be justified in view of the principle of parity and concerns with equality? In order for section 718.2(e) to apply, did an Aboriginal person have to be living on an Aboriginal reserve?

14. The Supreme Court of Canada's decision in R. v. Gladue represented the first time that Canada's highest Court wrestled with the new sentencing provisions. Ms. Gladue, an Aboriginal woman, plead guilty to manslaughter for killing her common-law husband, and was sentenced to three years imprisonment. She also received a 10 year weapons prohibition. In arriving at what it felt was an appropriate sentence the trial court considered section 718.2(e) but felt that the section was inapplicable to the case before it. The court reasoned that while both the offender and the victim were Aboriginal persons, since they both lived in an urban area and therefore off-reserve they did not fall "within the [A]boriginal community as such".[43]

15. Ms. Gladue appealed her sentence of incarceration on four grounds, only one of which is relevant for the purposes of this paper - whether the trial judge failed to give appropriate consideration to her circumstances as an Aboriginal offender. At appeal, Ms. Gladue also sought to introduce evidence of her efforts to maintain links with her Aboriginal heritage. The majority of the British Columbia Court of Appeal dismissed the accused's appeal of her sentence.[44] While the Court of Appeal agreed with the accused that the trial judge had erred in limiting the application of section 718.2(e) to Aboriginal peoples living on reserve, it dismissed her appeal on the basis that the judge did not err in failing to give special consideration to the appellant's background since the sentence involved deliberate motivated acts, the act contained elements of viciousness and persistence; and the killing amounted to a "near murder".[45] The majority of the appellate court reasoned that since the sentence appeared fit for a non-Aboriginal person, it was also fit for an Aboriginal person.[46]

16. Ms. Gladue appealed the British Columbia Court of Appeal's decision to the Supreme Court of Canada. The SCC identified a number of errors at the trial and appellate court level, including the trial judge's limiting his application of section 718.2(e) to the circumstances of Aboriginal offenders living in rural areas or on-reserve; the trial court's failure to consider the systemic or background factors that may have influenced Ms. Gladue to engage in criminal conduct; the possibly distinct concept of sentencing held by the offender, the victim's family and their community; and the appellate court's dismissal of Ms. Gladue's application to introduce new evidence. The Court stated that, under different circumstances, these errors would have been sufficient to send the matter back to the trial level for a new sentencing hearing in order to review the circumstances as an Aboriginal offender. However, due to the seriousness of the offence, the SCC felt that the sentence of three years' imprisonment was not unreasonable and dismissed Ms. Gladue's appeal.[47]

17. In the process of dismissing Ms. Gladue's appeal of her sentence, the SCC embarked on the process of "articulating the rules and principles that should govern the practical application of s. 718.2(e) of the Criminal Code by a trial judge."[48] In starting along this path, the Court's interpretation of, and direction on, this provision suggests a number of reasons why trial and appellate courts in Canada will have a difficult time giving the provision the remedial effect required to make a meaningful dent in the problem presented by the over representation of Aboriginal offenders in Canadian penal institutions.

    Remedial Nature of Section 718.2(e)

18. Perhaps the most significant finding made by the SCC in interpreting section 718.2(e) was that this provision did not simply serve to codify existing sentencing principles and jurisprudence and to restate the law, but, on the contrary, was remedial in nature and, when considered in conjunction with subsections 718.2(d) and (f), imported the concept of "restorative justice" into the sentencing process.[49] In interpreting section 718.2(e), the Court employed standard principles of statutory interpretation,[50] and in so doing, drew some general conclusions concerning the new sentencing provisions, particularly the sections concerning the purpose and principles of sentencing at sections 718 through 718.2 inclusive. The relevant sections considered by the Court in arriving at this interpretation are reproduced below.

    
    Purpose of Sentencing  718     
    
    The fundamental purpose of sentencing is to contribute, along with crime prevention 
    initiatives, to respect for the law and the maintenance of a just, peaceful and safe 
    society by imposing just sanctions that have one or more of the following objectives:          
    (a) to denounce unlawful conduct;         
    (b) to deter the offender and other persons from committing offences;         
    (c) to separate offenders from society, where necessary;         
    (d) to assist in rehabilitating offenders;         
    (e) to provide reparations for harm done to victims or to the community; and         
    (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm 
    done to victims and to the community.  
    
    Fundamental Principle of Sentencing  718.1   
    
    A sentence must be proportionate to the gravity of the offence and the degree of 
    responsibility of the offender.  
    
    Other Sentencing Principles  718.2   
    
    A court that imposes a sentence shall also take into consideration the following 
    principles: 	
    
    (a) a sentence should be increased or reduced to account for any relevant aggravating 
    or mitigating circumstances relating to the offence of the offender, and, 
    without limiting the generality of the foregoing,                
    	(i) evidence that the offence was motivated by bias, prejudice or 
    	hate based on race, national or ethnic origin, language, colour, religion, 
    	sex, age, mental or physical disability, sexual orientation or any other similar 
    	factor;                
    	(ii) evidence that the offender, in committing the offence, abused the 
    	offender's spouse or child,                
    	(iii) evidence that the offender, in committing the offence, abused a 
    	position of trust or authority in relation to the victim, or                
    	(iv) evidence that the offence was committed for the benefit of, at the 
    	direction of or in association with? a criminal organization shall be deemed 
    	to be aggravating circumstances;       
    
    (b) a sentence should be similar to sentences imposed on similar offenders for 
    similar offences committed in similar circumstances;       
    (c) where consecutive sentences are imposed, the combined sentence should not be 
    unduly long or harsh;       
    (d) an offender should not be deprived of liberty, if less restrictive sanctions 
    may be appropriate in the circumstances; and       
    (e) all available sanctions other than imprisonment that are reasonable in the 
    circumstances should be considered for all offenders, with particular attention 
    paid to the circumstances of [A]boriginal offenders. 

19. The SCC acknowledged that the provisions found at subsections (a) through (d) inclusive were a restatement of traditional sentencing aims. This restatement reflected the already existing punitive model of punishment informed by the just desserts rationale - commonly referred to as the retributionist position. The SCC, however, noted that provisions (e) and (f) were new and that, combined with subsection (d), these latter provisions served to concentrate

    upon the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender.[51]

    In addition, the Court found that the principle of restraint outlined at section 718.2(e) (i.e., the idea that "imprisonment should be resorted to only where no other sentencing option is reasonable in the circumstances") would "necessarily be informed by this re-orientation".[52]

20. A sentencing court would, under the new provisions, be requested to consider other sentencing options even where a term of incarceration would normally be appropriate. When imprisonment is being considered, it is necessary for a sentencing judge to ask whether imprisonment would serve to effectively deter or denounce crime in a manner meaningful to the particular offender and his or her community or whether the prevention of crime and other goals are better achieved through healing. The SCC referred to the availability of the new conditional sentence provision at section 742.1 of the Criminal Code whereby a judge can order an offender who is sentenced to a term of incarceration in a provincial jail (sentence maximum of two years less a day) to serve his or her sentence in the community in support of this reorientation.

21. The Supreme Court of Canada's interpretation of section 718.2(e) as being remedial in nature and not simply a codification of existing sentence principles, that section 718.2(e) imports a component of restorative justice, and its reasoning in arriving at these findings, appears in synch with the decades long incremental movement towards legislative reform aimed at ameliorating the problem of the over representation of Aboriginal offenders in the Canadian justice system and the excessive costs involved in warehousing offenders. The implications of the Court's attributing a remedial purpose to section 718.2(e), however, are far reaching and create rationale for why the judiciary may not embrace the SCC's interpretation of, and direction on, section 718.2(e).

    Implications of Remedial Interpretation

22. The likelihood that section 718.2(e) will play a meaningful role in the reduction of the over incarceration of Aboriginal offenders in Canadian penal institutions is directly tied to the extent to which Canada's judiciary follow the SCC's direction in Gladue. While Canada's highest court has stated, unequivocally, that judges have a judicial duty to give section 718.2(e) its remedial purpose, there are a myriad of reasons why judges may be reluctant to do so. The reluctance is not necessarily attributable to defiance of the SCC or its reasoning but rather with other concerns that arise due to the SCC's interpretation of, and direction on, section 718.2(e).

    Restorative versus Retributive Elements

23. The Court's finding that section 718.2(e) was remedial in nature and not simply a codification of existing jurisprudence and case law, has the effect of setting restorative justice elements against traditional retributivist elements. The "anomaly" created by the "simultaneous renaissance of retributive and restorative models of justice"[53] is problematic. The fundamental differences in position informing these two positions suggest that it is very unlikely that a judiciary, the vast majority of whom have contributed to the current situation of over representation through emphasis on traditional retributivist philosophy, will readily incorporate restorative justice elements into their sentencing practices. Moreover, as Roberts and von Hirsch note, "[s]imply suggesting that judges consider other sentencing options is unlikely to have much impact upon sentencing practices across the country" since "[i]n all possibility, judges already consider alternatives to incarceration before they imprison offenders."[54]

24. In Gladue, the SCC stated that the inclusion of section 718.2(e) and its restorative justice philosophy necessitates placing greater emphasis, where appropriate, on the goal of restorative justice, and less emphasis will be placed on the traditional goals of deterrence and denunciation since the latter goals are of less relevance. Since in many cases, the prevention of crime and both individual and social healing cannot occur except through resort to restorative sentencing principles, restorative principles "will have primary relevance."[55]

25. Despite this emphasis on restorative justice however the SCC wrote that it did not mean to suggest that, "as a general practice, [A]boriginal offenders must always be sentenced in a manner which gives greatest weight to the principles of restorative justice, and less weight to goals such as deterrence, denunciation, and separation".[56] There will be cases where the offence is serious and/or the offender is such that the principles of separation, denunciation and deterrence are of major relevance. The Court felt that it was unreasonable to assume that aboriginal peoples did not share this believe in terms of the importance of these three traditional sentencing goals but noted that even if they do not, that it would be unreasonable that such goals "must not predominate in appropriate cases".[57]

26. Despite the SCC's attempts to account for the diverse justice models, however, the uncertainty surrounding whether restorative and retributivist elements and models should, or can, be reconciled, provides a rationale for the judiciary not to embrace the Court's interpretation of, and direction on, section 718.2(e).

    Disparity in Sentencing

27. Another reason for judicial reluctance to embrace the SCC's direction with respect to section 718.2(e) is the disparity in sentencing that would seem to follow from giving section 718.2(e) its remedial force. While sentencing is an individual process emphasizing the uniqueness of the sentencing process for each offender (i.e. the sentence will depend upon the offence, offender and the community where the offence took place), it is commonly understood that there is a range of sentences considered appropriate for certain offences. Yet disparity in sentencing is clearly envisioned by the SCC in its interpretation of section 718.2(e). The SCC has specifically stated that for more serious offences, parity in sentences between Aboriginal and non-Aboriginal peoples is to be expected, while for less serious offences, disparity in sentences between Aboriginal offenders and non-Aboriginal offenders for the commission of similar offences is not only to be expected,[58] but "is a natural consequence of this individualized focus".[59]

28. The SCC found that for "particularly violent and serious offences" imprisonment would likely result for both Aboriginal and non-Aboriginal offenders.[60] For less serious offences, however, the SCC clearly envisioned that an Aboriginal offender may receive a non-custodial sentence where a non-Aboriginal person may receive a custodial sentence for the commission of the same offence. Where a term of incarceration is required, the Court found that it may be appropriate for the jail term of an Aboriginal offender to be less than that for a non-Aboriginal offender committing the same offence. Relevant factors in forming this individualized focus include the nature of the relationship between the offender and their community and the understanding of criminal sanctions held by the community.

29. The SCC's statement that while proponents of the retributionist position emphasize the importance of the principle of parity,

    [i]t has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime. ... Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions of this country, as the 'just and appropriate' mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred[,]"[61]

    is of little comfort to a sentencing judge attempting to come to an internal harmonization of the traditional emphasis with parity in sentencing and the remedial requirements of section 718.2(e), and appears to run contrary to reality and the numerous books written on sentencing guidelines.

30. It could be objected that a judicial concern with parity and uniformity in sentencing is simply a mask to "...hide[] inequity, impede[] innovation and lock[] the system into its mindset of jail."[62] Kwochka notes that it is the past emphasis and commitment to the principle of parity that has resulted in the overuse of incarceration and that "the folly of its use in the past has so corrupted our perception of its proper place that sentences of the past are not a reliable guide for the effective use of imprisonment today."[63] Further, it might be objected that the concern with disparity in sentencing is due to warrantless and unjustified variations in sentence. The need to reduce the over representation of Aboriginal offenders in Canadian penal institutions, and the unique circumstances of Aboriginal offenders are clear justifications for the disparity in sentencing that must result if section 718.2(e) is to be given its remedial effect. To do otherwise would leave section 718.2(e) devoid of meaning.

31. These criticisms are valid and would provide a comfort level to a sentencing judge struggling with the reconciling what is expected of him or her in view of the anomaly created by sections 718.2(b) and (e):

    a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances" (section 718.2(b)); and "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention paid to the circumstances of [A]boriginal offenders." [64] (section 718.2(e))

32. It would have been preferable, however, had the SCC's message on parity and disparity have been similar to that advanced by Kwochka rather than its reliance on the myth that "there is no such thing as a uniform sentence for a particular crime".[65]

    Influence of Appellate Courts

33. The SCC's manner of addressing the concern with the principle of parity served to obviate the reality that , "there is much less discretion to avoid sentencing an offender to a term of imprisonment"[66] than suggested by the SCC. The reason for this is that provincial courts of appeal "act as policy-making bodies and as the final arbiters of the quantum of sentence".[67]

34. Quigley, for example, writes that

    [c]ourts of appeal established starting point sentences for particular offences as guidelines for trial judges. Because of the doctrine of stare decisis, those guidelines become mandatory guidelines in the sense that a trial judge can only deviate from the starting point according to the presence of aggravating or mitigating factors. Otherwise, the sentence is very likely to be overturned on appeal on the ground of unexplained disparity with the sentences normally imposed in that jurisdiction for that offence."[68]

35. The lack of discretion on the part of trial and appellate courts is a further reason why judges may be reluctant to give section 718.2(e) the remedial force set out by the SCC in Gladue.

    Nature of Offence

36. The absence of direction concerning the nature of the offence for which a restorative philosophy is appropriate is further reason for judicial reluctance to give section 718.2(e) its remedial force. In the absence of legislative direction exempting some offences from the scope of the restorative justice approach (except those offences for which a minimum term of incarceration is provided) there is an implicit message that it is appropriate, even required, to entertain a restorative justice approach for ALL offences. To do otherwise would frustrate Parliament's goal of addressing the problem of the over incarceration of Aboriginal offenders. While cases involving offences of violence may appear to be more clear cut in terms of which legal philosophy should dominate, for the vast majority of offences the path to the retributive or restorative justice base is not so clear cut. Specific direction concerning offences involving fines, alcohol, and property, for example, is not provided by the court. Are restorative sentences appropriate for offences involving assault and/or alcohol? Since the goal of section 718.2(e) is the reduction in the over representation of Aboriginal peoples in Canadian penal institutions, and since a high percentage of inmates, particularly Aboriginal peoples, are incarcerated due to property-related offences and the non-payment of fines,[69] is, or should incarceration no longer an option for these types of offences?

37. An example of the concern with the nature of the offence and the problem created by the anomaly of diverse philosophical approaches to sentencing is illustrated in R. v. J.D.G.[70] In this case the accused was charged with sexual assault and received a two year penitentiary sentence and a five year firearms prohibition. The court made it quite clear that it was left in a quandary by the SCC's decision in Gladue and the decision of the British Columbia Court of Appeal in R. v. Biln.[71] The issue giving rise to the quandary concerned whether it should follow the decision in Biln which held that the new sentencing regime still required that proportionate weight be given to the principles of denunciation , deterrence and other principles, or whether it should give greater weight to the principles of restorative justice. The effect of following the Biln decision would be that the court in J.D.G. would impose a sentence that would see the offender serve his time in a federal institution (i.e., a sentence of two years or more). If the sentencing court placed emphasis on restorative justice principles, however, it would reduce the offender's sentence by one day, to two years less a day, thereby allowing the court to order the offender to serve his time in a provincial institution under a conditional sentence order. The court in J.D.G. opted to follow the British Columbia Court of Appeal and sentenced the offender to a term of two years, thus requiring the offender to serve his time in a federal institution which, by definition, excluded the possibility that the court could order the offender to serve his sentence in the community under a conditional sentence order.

    Difference in Treatment of Aboriginal and Non-Aboriginal Offenders

38. A further reason for judicial reluctance to embrace the SCC's direction with respect to section 718.2(e) is the difference in treatment between Aboriginal and non-Aboriginal offenders that the SCC attributes to the natural consequence of an individualized focus in sentencing mandated by section 718.2(e).[72] The Court acknowledged that the legislature's opting to include principles of restorative justice alongside traditional sentencing principles reflected Parliament's intent "to expand the parameters of the sentencing analysis to all offenders".[73] However, it observed that inclusion of the requirement that particular attention that is to be paid to the unique circumstances of Aboriginal offenders within the provision calling for restraint in the use of imprisonment for both Aboriginal and non-Aboriginal offenders suggested "that there is something different about [A]boriginal offenders which may specifically make imprisonment a less appropriate or less useful sanction".[74]

39. Quigley notes, for example, that

    [s]ocioeconomic factors such as employment status, level of education,family situation, etc., appear on the surface as neutral criteria. They are considered as such by the legal system. Yet they can conceal an extremely strong bias in the sentencing process. Convicted persons with steady employment and stability in their lives, or at least prospects of the same, are much less likely to be sent to jail for offences that are borderline imprisonment offences. The unemployed, transients, the poorly educated are all better candidates for imprisonment. When the social, political and economic aspects of our society place Aboriginal people disproportionately within the ranks of the latter, our society literally sentences more of them to jail. This is systemic discrimination."[75]

40. The Court reasoned that while factors such as low income, high unemployment, lack of opportunities and options, lack or irrelevance of education, substance abuse, loneliness and community fragmentation may account for both Aboriginal and non-Aboriginal people coming into conflict with the law, crime and recidivism, the circumstances of these two groups differ since many Aboriginal people are more substantially affected by poor social and economic conditions, suffer from the long term effects of dislocation, and experience systemic and direct discrimination.[76] Where such factors may have played a significant role, the Court wrote that it is "incumbent upon the sentencing judge to consider these factors in evaluating whether imprisonment would actually serve to deter, or to denounce crime in a sense that would be meaningful to the community of which the offender is a member".[77] Additional reasons for a sentencing court to consider the unique factors and the systemic discrimination against Aboriginal peoples in Canada include that Aboriginal peoples will be more adversely affected by incarceration and less likely to be rehabilitated due to the fact that jail is "culturally inappropriate" and discrimination against Aboriginal peoples is "often rampant in penal institutions."[78]

41. The Court went to great lengths in an effort to clarify that section 718.2(e) is not about excusing the acts of Aboriginal peoples because they are Aboriginal but rather a recognition that sentences other than imprisonment would almost certainly better meet the offender's and community's needs than incarceration;[79] that the aim of the impugned section "is to reduce the tragic over representation of Aboriginal people in prisons. It seeks to ameliorate the present situation and to deal with the particular offence and offender and community;" and that the key purpose of the subsection "is to treat [A]boriginal offenders fairly by taking into account their difference."[80] Further, it noted that an Aboriginal offender's community "will frequently understand the nature of a just sanction in a manner significantly different from that of many non-[A]boriginal communities".[81]

42. Despite the SCC's efforts to account for the difference in treatment between Aboriginal and non-Aboriginal offenders, however, it is submitted that the judiciary will still be reluctant to give section 718.2(e) the requisite remedial effect necessary to achieve a meaningful reduction in the over incarceration of Aboriginal peoples in Canadian penal institutions. Despite the SCC's rationale for different sentences for offenders committing the same offence, the reality is that section 718.2(e) will be perceived by both judges and the general public as creating a two-tiered justice system or a "race-based justice" system whereby subsection 718.2(e) becomes a "get out of jail free" card for Aboriginal peoples.[82] Admittedly, concern with the perception of a two-tier justice system is somewhat ironic give that, as Justice Bayda wrote, to an outside observer looking at the gross over incarceration of Aboriginal offenders in Canadian prisons, there may well appear to be different systems:

    In the same spirit, one is able to address the 'two systems of justice' concern and say that although we now have only one system of justice an objective outlook unfamiliar with our society would be surprised to learn that was the case were he or she to look only at the consequences or products produced by the system of justice. From the perspective of consequences we appear to have two systems of justice."[83]

43. Despite the truth attached to the suggestion that the combination of a non-custodial sentence can have an equivalent punishment value to a custodial sentence "when produced and administered by a restorative system and that the healing process can be more intense than incarceration,"[84] such a sentiment is unlikely to satisfy a judiciary steeped in a retributionist tradition, nor the public, that already perceives offenders receiving more lenient sentences than they actually receive.[85]

44. It might be objected that the public's perception of the sentencing process raised by section 718.2(e) ought not to factor into judicial decision-making. Judges, however, are people. To this end, Justice Turpel's caution that "judicial independence will be vital in discharging this function"[86] should be heeded. Judges are not isolated from public opinion and it is trite to say that public confidence in the judicial system is important if a judicial system is to operate effectively. While sentences are not handed down with a view to appease the public, for a judicial system is to operate effectively, there is a need for buy-in from the legal and broader community.

    Role of Judiciary and Counsel and the Circumstances of Aboriginal Offenders

45. Another factor impacting upon the likelihood that section 718.2(e) will ameliorate the problem of Aboriginal over representation in Canadian penal institutions is the duty falling on defence and Crown counsel to bring the circumstances of Aboriginal offenders to the attention of the sentencing court and the role of the judiciary in relation to this information. With respect to the former, the Court in Gladue stated that "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 fulfil their role and assist the sentencing judge in this way."[87] Representations from the relevant Aboriginal community are also encouraged where appropriate.[88] With respect to the duty of judges in relation to this information, the Court in Gladue stated that sentencing judges are required to take judicial notice of the systemic or background factors that may have resulted in the Aboriginal offender appearing before the court and the types of sentencing procedures and sanctions that may be appropriate in the offender's situation due to his or per particular Aboriginal heritage or connection.[89]

46. In considering the unique circumstances of Aboriginal peoples, the court is not required to end its consideration with the specific offender. Rather, the court is permitted to also consider the circumstances of Aboriginal people as a group. It is in looking at Aboriginal peoples as a group that is the critical factor - for it is here that the over incarceration rate factors in; it is here that we find reference to the fact that jail is not an effective deterrent for Aboriginal offenders as evidenced by the fact that the recidivism rate for Aboriginal offenders is higher than the offender population as a whole.[90]

47. The Court's implying that there is a legal duty falling on both defence and Crown counsel, as well as on judges, in relation to the application of section 718.2(e) raises some hurdles that may result in section 718.2(e) not receiving the remedial effect necessary in order to reduce Aboriginal over crowding in Canadian penal institutions. The Court noted, for example, that "[s]entencing must proceed with sensitivity to and understanding of the difficulties [A]boriginal people have faced with both the criminal justice system and society at large".[91]

48. In order to effect this analysis, sentencing judges require information particular to the offender. In order for an offender to get this information before the court, an offender is generally dependent upon counsel to bring the specific factors of his or her case to the judge's attention.[92] In the absence of counsel, the accused would be the point person on bringing this information to the court's attention. Where this information is not readily forthcoming, however, the issue becomes how likely it is that a sentencing or appellate court will engage in a meaningful search for this information.[93]

49. While both defence and Crown counsel have a duty to bring the information concerning an Aboriginal offender to the court's attention, the co-operation envisioned by the Court may not materialize. The lack of co-operation may not be owing to malice on the part of counsel but, rather, a lack of awareness of community programs and/or a lack of creativity in crafting meaningful sentencing options.

50. Reference to the behaviour of counsel in Canadian judgements is infrequent. In R. v. Carratt, for example, a post-Gladue decision involving an Aboriginal offender, the sentencing judge commented upon the involvement of Crown counsel.[94] The court noted that the first Crown counsel involved in the case who sought an 18 month jail sentence had made no effort to comply with the requirements set out by the SCC in Gladue in terms of assisting the court in understanding the unique circumstances affecting the Aboriginal offender nor in considering alternatives to incarceration. The court noted, however, that the second Crown counsel involved in the case took the position that a one year sentence of incarceration was appropriate regardless of whether the offender was Aboriginal or non-Aboriginal. The judge sentenced the offender to a nine month term of imprisonment, followed by nine months probation. He also received a 10 year firearms prohibition. Implicit in the judgment was that the second Crown counsel was of more assistance to the court than the first Crown counsel.

51. In R. v. Ear[95] and R. v. Cardinal,[96] however, both post-Gladue decisions involving Aboriginal offenders, the judgments reflect co-operation on the part of Crown counsel. In Ear, for example, the court notes that Crown counsel directed the court's attention to section 718.2(e), and in particular the requirement that the court to consider the unique circumstances of Aboriginal offenders while in Cardinal, the judgment notes that Crown and defence counsel made a joint sentencing submission which was accepted by the court.

52. Even where the relevant information is before the court, however, it appears that some judges may use the very factors that constitute the unique circumstances of Aboriginal offenders against Aboriginal offenders. In R. v. Augustine,[97] for example, the accused, an Aboriginal man, received a conditional sentence of two years less a day to be served on an Aboriginal reserve and a 10 year fire arms prohibition following a conviction for manslaughter. Mr. Augustine killed his friend who was trying to stop Mr. Augustine's sexual assault of an Aboriginal woman. The British Columbia Court of Appeal allowed the Crown's appeal against sentence and varied the two year less a day conditional sentence handed out by the trial judge by increasing the sentence to a term of six years imprisonment and a lifetime firearms prohibition. While the variation in sentence on the facts in this case seems warranted, the contents of a police constable's report referred to by the court are of concern. The constable wrote that the accused "could function if he were able to abstain absolutely from the use of all intoxicants" but that a return to the Reserve where the accused lived "would make this difficult as alcoholism and unemployment rates are high" and the accused would be subjected to negative influence"[98] High rates of unemployment and alcoholism, however, are among the very factors impacting upon Aboriginal people and cited as reasons for Aboriginal peoples coming into conflict with the law to start with. Yet these very same factors that warrant emphasis on restorative type sentences are the same factors used to victimize the offender. In saying this, I do not intend to suggest that the offender should be returned to his or her community where the requisite resources necessary for the offender's return are lacking. However, it would be necessary for a court faced with a lack of resources in the circumstances of a different offence either to exercise creativity and resourcefulness in crafting a meaningful sentence for both the offender, the victim and the offender's and victim's community/ies.

    Aboriginal Community

53. The Supreme Court of Canada in Gladue interpreted section 718.2(e) as applying to all Aboriginal offenders regardless of residence (i.e., whether they live on or off reserve, in a large city or rural area). This served, in turn, to broaden the understanding of the relevant community for the offender. In attempting to arrive at an appropriate sentence, the relevant Aboriginal "community" is to be interpreted as broadly as possible in order to incorporate whatever network of support might be available. Under this broad definition of community, when an Aboriginal person may live on a reserve, his or her community might include an urban centre where the latter centre was the only place that had the appropriate resources for rehabilitation purposes. While the existence of alternative sources for support located off reserve may make it easier for a sentencing judge to craft a meaningful restorative sentence for an Aboriginal offender, the absence of such an alternative program does not eliminate the requirement that a sentencing judge is required to impose a sanction that considers the principles of restorative justice and the needs of the parties involved. The point, according to the court, is that community-based sanctions are simply one of the unique factors of Aboriginal people that "coincide with the [A]boriginal concept of sentencing and the needs of [A]boriginal people and communities".[99] To this end, it is also the case that the fact that an Aboriginal person lives in an urban centre that lacks the requisite traditional healing resources does not relieve a trial judge of his or her duty to find an alternative restorative justice type solution. Where alternative sentencing programs specific to a community do not exist, the judge is still permitted to "impose a sanction that takes into account principles of restorative justice and the needs of the parties involved."[100]

54. On the surface, such a broad interpretation of community should be embraced. The broad definition of 'community' should permit a greater number of Aboriginal persons to qualify for alternative sentences where some form of community assistance is available. In the case of Aboriginal peoples living in urban centres, the broad definition of community reflects the "fundamental importance of retaining and enhancing their (Aboriginal peoples) cultural identity." The retention of identity is critical since "[A]boriginal identity lies at the heart of Aboriginal peoples' existence; maintaining that identity is an essential and self-validating pursuit for Aboriginal people in cities".[101] The broad definition of 'community' is also important given that historically, consideration of cultural background was frequently limited to the sentencing of Aboriginal peoples living in northern Aboriginal communities.[102]

55. There are a number of reasons to suspect, however, that this broad definition of community championed by the SCC may not be readily embraced by trial and appellate courts. One basis for this skepticism is that bias exists amongst the judiciary and other members of the legal community, and society at large, that Aboriginal peoples living off reserve are not connected to their Aboriginal communities and do not deserve recognition as Aboriginal peoples. This position, however, is based on misinformation since the separation and disenfranchisement experienced by Aboriginal peoples is largely owing to no fault of their own, but rather is attributable to the federal government's historic and ongoing interference in the lives of Canada's Aboriginal peoples. The fact that Aboriginal peoples continue to find themselves estranged from family is directly attributable to historic government relocation programs, the required attendance of Aboriginal children in residential schools, and the enforced separation of children from families. It is precisely these people that are most in need of re-establishing or, in some cases, maintaining, this connection with community. Rather than seeing the lack/perceived lack of connection as an excuse to rely on retributivist goals to the exclusion of restorative justice options, the court ought to see this severance as an opportunity to promote re-connection.

56. An additional reason for skepticism in relation to the judiciary embracing an extended definition of community is the reality that intermediate sanctions have not been equally available in all jurisdictions and that a severe shortage of such programs existed in remote and northern communities, particularly in Aboriginal communities.[103] A lack of programs resulted in a loss of alternative sentencing options which, in turn, has had an adverse impact on the likelihood that a sentencing judge would impose such an alternative sanction. A survey completed for the Sentencing Commission confirmed that a majority of judges consider the availability of such programs when deciding whether to impose intermediate sanctions. A majority of judges surveyed also indicated that the availability of programs should determine whether interim sanctions should be made available to offenders.[104]

57. The R. v. Carlick[105] decision illustrates the role played by lack of resources. In Carlick, the offender, an Aboriginal man, was sentenced to 21 months imprisonment, three years probation and a lifetime firearms prohibition for assault causing bodily harm and assault on his common-law wife. The sentencing court, while acknowledging that it is required to consider alterative avenues to imprisonment for all offenders, and that this factor warrants greater consideration when the offender is an Aboriginal person, noted that "[t]he resources within your community to assist you in anger management are very limited to non-existent. However, within the prison system there are resources available to you."[106]

58. The fact that a lack of support/lack of community programs is a concern that could or would be used to deny an Aboriginal offender a remedial provision is ironic given that where programs are unavailable for other offenders, predominantly white males, a sentence is not altered and harsher sentences are not entertained.[107] Where a condition attached to a probation order, for example, provides that an offender is required to attend an anger management program, the lack of availability or extensive waiting list for an anger management program does not result in a court deciding to incarcerate an offender nor extending the term of probation in order that the offender might be able to attend such a program. Rather, the probation term simply expires and the offender is not required to complete the course. Another example occurs in the case of offenders serving interim sentences whereby an offender who receives a sentence of under 90 days is able to serve his or her time in a provincial institution on weekends. These individuals are frequently sent home shortly after arriving early Friday evening due to the overcrowding of provincial institutions. This overcrowding situation is well known to sentencing judges and counsel, yet this does not prevent such orders from continuing to be issued.

    Additional Concerns

59. In addition to the remedial concerns outlined above which make it unlikely that a court will embrace the SCC's interpretation of, and direction on, section 718.2(e), the Court's decision has raised some additional concerns with (i) the concept of restoration and community, and (ii) the safety of the community that might dissuade judges from giving section 718.2(e) the interpretation required in order to meaningfully impact upon a reduction in the sentencing of Aboriginal offenders in the Canadian penal system. With respect to the concern with the concept of restoration and community, the term "restorative", for example, suggests that there is a positive situation to which Aboriginal peoples can return.[108] In addition, the concept of restorative implies returning to a model of justice that is static. Kwochka, for example, notes that "there is no consensus about the degree to which Aboriginal communities have maintained their cohesiveness and customs, which are factors critical to the applicability of traditional [A]boriginal justice."[109] There is also a concern with whether the use of aboriginal customary laws would be appropriate in a contemporary context.[110] The reality, however, is that given the myriad of problems faced by Aboriginal peoples, factors which themselves form the over involvement of Aboriginal peoples with the criminal justice system, the system being turned to in order to promote restoration and harmony may be disrupted and dysfunctional.[111]

60. The concern with the disruption and dysfunction of Aboriginal communities, leads into the other concern - that the use of restorative type sentences involving Aboriginal communities may place those communities at risk. An additional reason why the broad definition of Aboriginal community relevant to the court's interpretation of section 718.2(e) is unlikely to result in a reduction in the over incarceration of Aboriginal peoples is that the desire to find an alternative to imprisonment may place the Aboriginal community at risk. Concerns such as protection of the victim from the offender will be an issue, particularly where the [A]boriginal community is small, or where the community is isolated, as in the north.[112] An example of the use of a restorative justice type sentence that might conflict with the needs of the community occurred in R. v. J.G.F.[113] In J.G.F., the accused, an Aboriginal man, was a school bus driver who assaulted two minor children during his course of work. He was sentenced to two nine month terms of imprisonment to be served concurrently and three years probation following guilty pleas to two counts of sexual touching of children. On appeal, this sentence was varied to an order that the accused serve his sentence in the community. The Manitoba Court of Appeal reasoned that community support was available to the accused and that the trial judge had incorrectly found that there was "lingering concern about the safety of the community."[114]

61. In some cases, an incident may cause a division in the community. This was the case in R. v. L.L.J.[115] where the accused, an Aboriginal man, received a conditional sentence to be served in the community in relation to two sexual assaults. Members of the community split over their support of the offender and the victim. The victim lived in the same house as the offender and was considered by the court as equivalent to a daughter-in-law.

62. The community was also split over the offender's return in R. v. Augustine.[116] In this case, the accused, an Aboriginal man, received a conditional sentence of two years less a day to be served on an Aboriginal reserve and a 10 year fire arms prohibition following a conviction for manslaughter. Mr. Augustine killed his friend who was trying to stop Mr. Augustine's sexual assault of an Aboriginal woman. Some portion of the community still considered Mr. Augustine a threat, when he drank, to both the sexual assault victim and the community.

63. The concerns of the [A]boriginal community were also addressed by the Ontario Court of Appeal in R. v. Logan.[117] In Logan, the accused appealed his sentence of 30 months imprisonment and a 30 month driving prohibition following his conviction on three offences involving alcohol (impaired driving causing death, impaired driving causing bodily harm and driving over the legal limit). The Ontario Court of Appeal allowed the offender's appeal and varied the sentence to a 20 month conditional sentence whereby the offender was ordered to serve his sentence in the community. The Court of Appeal upheld the driving prohibition. The Court of Appeal did not make the decision to reduce the offender's sentence lightly. It felt, however, that notwithstanding the normal deference paid to trial judges in the exercise of discretion, the trial judge in this case erred in principle in sentencing the accused since he failed to give adequate weight to the accused's Aboriginal status, the unique and important role played by Mr. Logan on the reserve and the principles of restorative justice. In so saying, the Ontario Court of Appeal noted its concern that Aboriginal communities not misinterpret the appellate court's decision to mean that "members of [A]boriginal communities and others will be placed at greater risk because drinking and driving offences committed by [A]boriginals will generally be treated more leniently by our courts".[118] This concern was paramount in view of the prevalence of alcohol abuse with in [A]boriginal communities and "the many inequities and injustices faced by members of those communities."[119]

    Recommendations

64. The new sentencing provisions, and in particular section 718.2(e) provide a unique opportunity for judges to craft meaningful sentences incorporating restorative justice elements for Aboriginal offenders. The willingness of trial and appellate court judges to follow the Supreme Court of Canada's interpretation of, and direction on, section 718.2(e), however, represents a critical hurdle to overcome in order for section 718.2(e) to reduce the over incarceration of Aboriginal peoples in Canadian penal institutions. Despite the existence of a judicial duty to give section 718.2(e) its remedial effect, for example, the foregoing analysis suggests that there are many reasons why judges may be unlikely or unwilling to do so.

65. Factors such as the limited effect that the sentencing process has on the underlying reasons for Aboriginal over involvement with, and alienation from, the criminal justice system are external hurdles that sentencing reform cannot reasonably hope to address. There are, however, a number of factors internal to the sentencing process than can be addressed which would infuse section 718.2(e) with more substance thereby permitting sentencing judges and appellate courts to maximize the effect that sentencing reform can make in the area of Aboriginal over representation in Canadian penal institutions.

    Legislative Amendments

66. The "anomaly" created by the "simultaneous renaissance of retributive and restorative models of justice"[120] must be addressed since it sets the tone for confusion in the application of section 718.2(e) and allows a general malaise to infuse the sentencing process. If the federal government's goal is truly to reduce the over representation of Aboriginal offenders in the criminal justice system, it needs to go on legislative record as stating that notwithstanding concerns with deterrence and denunciation, the over representation of Aboriginal offenders warrants emphasis on restorative justice to the exclusion of other sentencing principles.

67. In doing so, the legislature would need to acknowledge the existence of the principle of parity in sentencing, and that while emphasis on restorative justice techniques will create disparity in sentencing, that this disparity does not amount to injustice since the difference in sentences is necessary in order to ensure that the problem of Aboriginal over incarceration is addressed. In order for appellate courts to review the reasons of sentencing judges and, in particular, to determine whether, and the extent to which, an offender's circumstances as an Aboriginal person were considered, a legislative amendment is required that requires a sentencing judge to provide at least brief reasons for his or her decision.

68. The legislature also needs to specifically clarify that the emphasis is on a restorative approach to the exclusion of a retributivist approach in sentencing in relation to all offences except for those offences with a minimum term of incarceration or for those offences involving domestic violence, child abuse and sexual assault.[121] Sentencing of the latter three offences may still involve a restorative component, but in order to invoke such a restorative sentence, the victim, offender, and the victims and offender's respective communities would need to be consulted. Where the offender and victim are Aboriginal peoples living in closely knit communities, this consultation would presumably be completed quicker than for Aboriginal peoples living in more loosely connected communities or where the victim is a non-Aboriginal person.

69. To be sure, the recommendations made will result in a difference in treatment between Aboriginal and non-Aboriginal offenders. This needs to be specifically provided for in legislation. In order to avoid the issue of an equality challenge, the government must invoke the "notwithstanding" clause at section 33 of the Charter.[122]

70. In order for counsel and judges to be able to craft meaningful restorative sentences, mandatory education for the judiciary and counsel on available community services would be required. In addition, with the co-operation of Aboriginal peoples, all judges as well as all Crown and defence counsel would be required to attend Aboriginal reservations, community groups, and penal institutions to familiarize themselves with the real situation faced by many Aboriginal peoples. This education and familiarity would prove invaluable given the creativity and flexibility required to come up with alternative programs in view of the shortage of present resources.[123] The creativity required to craft meaningful sentences also includes a time intensive element.[124]

71. A legislative amendment should entrench the judicial duty to consider the unique circumstances of Aboriginal offenders, and the duty on both defence and Crown counsel to ensure that an offender's circumstances are before the court. An additional provision should provide that a sentencing court must delay the sentencing of an Aboriginal offender when such information is not forthcoming. This delay should not be indefinite, however, and after a specified period of time, the onus would then fall on the sentencing judge to craft a meaningful sentence for the offender, the victim, and both the victim's and offender's community/ies.

72. The SCC's broad interpretation of community should be entrenched in legislation. The broad concept of community alone, or combined with the foregoing recommendations, would obviously place a tremendous burden on the already stretched budgets of Aboriginal communities. The already stretched resources of rehabilitation centres on reserves, for example, may be overburdened by the inclusion of off-reserve Aboriginal peoples in their programs. Rather than a reason to retreat from such an aggressive interpretation, however, a government truly committed to reducing the over representation of Aboriginal peoples in penal institutions must provide sufficient resources to accommodate the demands that such an aggressive definition entails. Government funds should be made available to both on and off reserve organizations affected by this increased burden. The federal government should prioritize funding to community sanctions.

73. The federal government as it was constituted in 1990 indicated that it was not prepared to enter into any undertaking that would require extensive federal resources since such a position would be contrary to the government's stance on fiscal responsibility.[125] While the "delivery and administration of these community sanctions are clearly within the jurisdiction of the provinces,"[126] access to federal monies to ensure the ongoing existence of these provincial programs is critical to the likelihood that judges will incorporate such programs into their restorative sentences.[127] The federal government for example is unable to impose requirements on provincial governments that require extensive provincial government expenditure. Even if they could do so, the provincial governments would not buy in to such impositions. Any long term meaningful remedy will need to address both provincial and federal government concerns. What is needed is a more coherent criminal justice system in Canada that jointly works towards the objectives of the new sentencing provisions, and the development of policies and programs in relation to those objectives.

74. With respect to the concern that there may be situations where the desire to find an alternative to imprisonment may conflict or interact with the concerns of the victim/Aboriginal community, the victim/Aboriginal community itself should be consulted to determine whether this is, in fact, a concern. The victim/Aboriginal community may be able to suggest an alternative meaningful way in which the needs of the offender and the community can be met. Where such an alternative suggestion is not forthcoming and the victim/community requests it, the only recourse may be a penal institution.

75. The more difficult issue involving Aboriginal community concerns the reality that restoration implies that there is a community to which an offender can return. Given the many problems plaguing Aboriginal communities, however, this may be problematic. In this situation, the Aboriginal community should be consulted to see what, if any, resources can be offered or suggested by the community. Where the offender cannot return to the community because of a lack of resources, extra-community resources will need to be accessed. In the latter situation, however, it would be inappropriate to incarcerate an offender for lack of government foresight in providing sufficient resources to Aboriginal communities in order that those communities can build resources which would, in turn, facilitate the return of an Aboriginal offender to his or her community.

76. A further legislative amendment that should be entertained involves the over representation of other visible minorities in provincial institutions. Roberts and LaPrairie note, for example, that in some provinces, such as Ontario, it is not Aboriginal peoples that are over represented in provincial jails but "urban blacks" and visible minorities.[128] To the extent that the legislature wishes to address the problem of over incarceration and the extensive costs of warehousing offenders, a legislative amendment is required which also provides that circumstances of various minority groups must be considered when sentencing for these offenders. A separate subsection should be added to address this concern, however, to ensure that the provision relating to Canada's Aboriginal peoples is not lost in the shuffle. Given the difficulties arising in Gladue concerning which offenders should be understood to fall within the meaning of Aboriginal community, an amendment dealing with a minority group would need to define which the members of such a group.

    Additional Recommendations

77. In view of the problems with judicial over reliance on incarceration as a weapon of choice, the issues raised by the SCC's interpretation of, and direction on, section 718.2(e), and the hurdles that must be overcome in order that section 718.2(e) can meaningfully address the mischief it was designed to remedy, the preferred solution for addressing the over representation of Aboriginal offenders in Canadian penal institutions over both the short and long term may be a consideration of diversion from the justice system.[129] An additional consideration would be for the federal and provincial governments to set goals for the reduction in numbers of Aboriginal offenders warehoused in Canadian penal institutions.

78. The federal government must embark on a public education campaign to explain why the above recommended legislative amendments are necessary and to explain the significance of restorative justice and non-custodial sentences to Aboriginal peoples. This recommendation should not come as a surprise to the federal government since it has acknowledged that public confusion exists concerning the role of sentencing in the criminal justice system.[130] In addition, the government acknowledged that a challenge for policy makers was in trying "to reconcile intermediate sanctions with public opinion that wants longer, harsher sentences for violent offenders, an increased emphasis on crime prevention and fewer tax dollars spent on the construction and operation of new penal institutions".[131]

    Conclusion

79. The problem of the over representation of Aboriginal offenders in the criminal justice system is complex. Understanding the limited role that the sentencing process plays in removing the underlying bases for Aboriginal offending and alienation from the criminal justice system[132] is significant in terms of reliance on sentencing reform as a means to ameliorate the over representation of Aboriginal peoples in the criminal justice system. This understanding is also of paramount importance in appreciating the pivotal role that section 718.2(e) has to play in reducing the over incarceration of Aboriginal peoples in Canadian penal institutions and the critical role that judges have to play in this process.

80. The process of sentencing reform is a journey. The sentencing amendments to the Criminal Code represent the Canadian government's start along the path to meaningful reform. The Supreme Court of Canada has given this legislative journey a kick start by providing an interpretation of, and direction on, section 718.2(e). The SCC's direction, however, has raised a number of concerns that suggest that there would be judicial reluctance to embrace both section 718.2(e) and the SCC's interpretation of, and direction on, this provision.

81. Given that the over representation of Aboriginal offenders in Canadian penal institutions is attributable, in part, to archaic thinking that continues to emphasize institutional incarceration as the only method capable of satisfactorily addressing retributivist sentencing principles, and a system, and actors, that continue to discriminate against Aboriginal peoples, a number of legislative amendments need to be made in order to ensure that section 718.2(e) can remedy the harm it was designed to redress. In the absence of such amendments, it would be naive to expect that section 718.2(e) will become something other than a box that counsel and the judiciary can check off to ensure that the "circumstances of [A]boriginal offenders"[133] have been addressed when arriving at an appropriate sentence; and that the government can attempt to stand on when it attempts to stand tall and claim that Canada is doing something about the over incarceration of Aboriginal peoples in Canadian penal institutions. While the recommendations suggested above may be criticized as unrealistic and radical, the problem of Aboriginal over representation in Canadian penal institutions has been described as a tragedy and, unless checked, will continue to grow. This growth is virtually guaranteed in view of the growing birth rate in Aboriginal communities if the status quo is maintained. A tragic situation requires a meaningful and sustainable solution. Legislative reliance on section 718.2(e) to address the problem of Aboriginal over representation in Canadian penal institutions is equivalent to standing firmly with both feet planted firmly in the air. Legislative amendments incorporating some or all of the above recommendations would serve to shore up the ground upon which such reliance rests.