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Court and Tribunal Decisions - Canada
British Colombia Court of Appeal (Donald JA, Finch CJBC, Low JA)
3 June 2004
2004 BCPC 43; 2004 CarswellBC 569 (B.C. Prov. Ct.)
Criminal law — Aboriginal offender -– sentencing principles — probation order -– restorative justice -– capacity of the community to give effect to traditional justice
This case was an appeal by the Crown against a sentencing order made against the respondent. The respondent was a 40 year old aboriginal man, in an ‘open’ and troubled relationship with his common law partner, ED. He was well-educated, successful in business and a leader in his community. He pleaded guilty to threatening C, the boyfriend of his common law wife, assaulting his common law wife, pointing a firearm at C, and unlawfully confining his common law wife. The respondent had not been under the influence of drugs or alcohol, and had spent over an hour deliberately searching for his wife before commencing the assault. The assault occurred in several stages over a period of several hours. His wife ED spent three days in hospital and was suffering ongoing medical side-affects eight months later.
The sentencing hearing was adjourned, to allow the respondent’s aboriginal community to form recommendations as to the desirability of traditional aboriginal alternatives to incarceration. The community held both a Family Violence Conference, and a talking circle. These forums recommended that traditional healing and counselling measures (such as a ‘Polatch’ and a ‘man’s talking and sharing circle’) would be more appropriate than goal, given the systemic nature of spousal abuse in the community. There was evidence that the victim was apprehensive about the sentencing, and the Liard Aboriginal Women’s Society issued a formal objection to the use of sentencing circles given the violent nature of the crime in this case. Despite this, the sentencing judge issued a suspended sentence for all counts and issued a probation order for two years, implementing some community recommendations regarding traditional restorative sentencing. In doing so, the sentencing judge took into account systemic difficulties facing aboriginal people, such as the high numbers of aboriginal persons in custody. He found that, despite some division, the community as a whole had begun a process of positive ‘dialogue’ on domestic violence in response to this case. He expressed concern that removing this offender from the community might bring this dialogue and healing process to a premature end.
However, there were significant difficulties in implementing the probation order. The Aboriginal Women’s Society, in protest against the sentence, refused to accept responsibility for supervising the community service order imposed on the respondent as part of his probation. There were broader questions about the community’s capacity to give effect to traditional aboriginal justice and restorative objectives given how recently they had begun to explore these measures (for instance, the community asked that the court clarify the meaning of ‘traditional’ terms used in the probation order, such as ‘Polatch’ and ‘elders’).
1. In considering alternatives to imprisonment when sentencing, there is a legislative requirement to ‘pay particular attention to the circumstances of aboriginal offenders’: s 718.2 Criminal Code, RSC 1985, cC-46. Appropriate sentences for aboriginal offenders will often focus on restorative objectives and incorporate community-based sentencing alternatives. However, this does not mean that sentencing should focus solely on restorative objectives or give less weight to conventional sentencing objectives, such as deterrence and denunciation [51]–[52], [55].
2. The fundamental principle of sentencing requires, for aboriginals and all others alike, that the sentence be proportionate to the gravity of the offence and the degree to which the offender was responsible for their actions [56]. Criminal Code 1985 ss 718. 1, 718.2(e) applied.
3. When sentencing aboriginal offenders, it is thus not the principles of sentencing which vary, but rather the application of those principles to a particular case. The sentencing of aboriginal offenders must therefore proceed on an individual, case by case basis [54]. R v Gladue (1999) CarswellBC 778 applied.
4. The more violent and serious the offence, the more likely it is that the appropriate sentence will not differ between aboriginal and non-aboriginal offenders, given that in these circumstances the goals of denunciation and deterrence are accorded increasing significance. The gravity of this offence and this offender’s degree of moral culpability put this case into such a class [55], [57]–[60]. R v Wells (2000) 250 NR 364 applied; R v Gladue (1999) CarswellBC 778 applied.
5. All Canadians, aboriginal and non-aboriginal, are entitled to the protection of the law, and are subject to the control of the law. Women, and other vulnerable persons, must be protected and must not be afraid to lay complaints or to pursue charges. The law must also be seen to respond effectively to such charges [68].
6. The sentencing judge’s attempt to give due consideration to the aboriginality of the offender and to give effect to his understanding of traditional aboriginal justice was admirable. However in doing so, the sentencing judge lost sight of the court’s overriding duty to impose a sentence which, given the particular facts of the offence, the offender, the victim and the community, is fit in the circumstances [56], [82]. R v Wells (2000) 250 NR 364 applied.
7. To be effective, the terms of the probation order must be clear and capable of enforcement. It is not for the court to rule on the meaning of restorative or community-based measures (such as providing a definition of terms such as ‘Potlatch’ and ’Elders’). This is a question for the community concerned. In this case, effective implementation of circle sentencing was hampered both by political and gender division within in the community, and their inexperience with the principles of restorative justice [65]–[67], [76]–[77], [81]–[84].
8. An incident of brutal, pre-meditated spousal abuse by this offender, in the context of a community where spousal abuse is epidemic, and victims are intimidated, clearly called for a sentence that would serve to deter, and perhaps more importantly, denounce such conduct. To do this, a term of incarceration is required [62, 70].
51. The Supreme Court of Canada discussed the s 718.2(e) [Criminal Code 1985] requirement to pay ‘particular attention to the circumstances of aboriginal offenders’ when considering all available sanctions other than imprisonment in R v Gladue, [1999] 1 S.C.R. 688, 133 C.C.C. (3d) 385 (S.C.C.) [(‘Gladue’) ] and R. v. Wells, [2000] 1 S.C.R. 207, 141 C.C.C. (3d) 368 (S.C.C.) [(‘Wells’)]....
52. Those sources document the serious problems of over-incarceration of aboriginal offenders in Canada. They also highlight the need to consider sentencing options which take into account the systemic factors that often bring aboriginal offenders before the court, and encourage judges to craft sentences that respond to the understandings of aboriginal offenders and their communities as to what constitutes an appropriate sanction in a particular case. In both Gladue, supra 70, 73–74 and Wells, supra 38–39, the Court recognized that appropriate sentences for aboriginal offenders will often focus on restorative objectives and incorporate community-based sentencing alternatives.
53. However, it is significant that in both Gladue and Wells the Supreme Court of Canada considered the requirement to pay ‘particular attention to the circumstances of aboriginal offenders’ within the broader context of the amendments which added Part XXIII to the Criminal Code. The Court noted that these provisions apply to all offenders, and are part of an attempt to reduce the use of prison as a sanction and expand the use of restorative justice principles in sentencing: Wells, supra 4, 36–37, Gladue, supra, 42–44. These imperatives are not, however, exclusive, and must be weighed against the other principles of sentencing set out in the Criminal Code.
54. The Court has made it clear that it is not the principles which vary when sentencing aboriginal offenders, but rather the application of those principles to a particular case: Gladue, supra 33. In Gladue, supra 80, Lamer CJC provided the following guidelines as to the special concerns judges should explore and consider when sentencing aboriginal offenders:
As with all sentencing decisions, the sentencing of aboriginal offenders must proceed on an individual (or case-by-case) basis: for this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code? What understanding of criminal sanctions is held by the community? What is the nature of the relationship between the offender and his or her community? What combination of systemic or background factors contributed to this particular offender coming before the courts for this particular offence? How has the offender who is being sentenced been affected by, for example, substance abuse in the community, or poverty, or overt racism, or family or community breakdown? Would imprisonment effectively serve to deter or denounce crime in a sense that would be significant to the offender and community, or are crime prevention and other goals better achieved through healing? What sentencing options present themselves in these circumstances? [Emphasis in original.]
55. Although judges are therefore required to approach the sentencing of aboriginal offenders with an analysis that is sensitive to the conditions, needs and understandings of aboriginal offenders and communities, this does not mean that sentences for such offenders will necessarily focus solely on restorative objectives or give less weight to conventional sentencing objectives such as deterrence and denunciation. As Iacobucci J. observed in Wells, supra 42:
Notwithstanding what may well be different approaches to sentencing as between aboriginal and non-aboriginal conceptions of sentencing, it is reasonable to assume that for some aboriginal offenders, and depending upon the nature of the offence, the goals of denunciation and deterrence are fundamentally relevant to the offender's community. As held in Gladue, at para 79, to the extent that generalizations may be made, the more violent and serious the offence, the more likely as a practical matter that the appropriate sentence will not differ as between aboriginal and non-aboriginal offenders, given that in these circumstances, the goals of denunciation and deterrence are accorded increasing significance.
56. Turning to the sentence imposed in this case, it is clear that the sentencing judge considered the aboriginal identity of the offender and sought to give effect to his understanding of traditional aboriginal justice. However, in so doing, the sentencing judge lost sight of the court's overriding duty to impose a sentence which, given the particular facts of the offence, the offender, the victim, and the community, is fit in the circumstances: Wells, supra 40. The fundamental principle of sentencing requires, for aboriginals and all others alike, that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender: s 718.1.
57. In my respectful view, the sentencing judge erred to the extent that he did not give effect to this fundamental principle and consequently failed to recognize the need for a sentence which achieves the objectives of general deterrence and denunciation. The gravity of this offence and this offender's degree of responsibility put this case into the class of particularly violent and serious offences discussed in Wells, supra 42–46 where the appropriate sentences for aboriginal and non-aboriginal offenders are less likely to differ.
58. This was not an assault which involved a single, impulsive blow that caused only minor or temporary harm. Rather, it was a violent and protracted assault which occurred after Mr Morris spent more than an hour searching for his wife. He was sober and had the opportunity to contemplate his actions. When he did find ED, he brutally assaulted her for a prolonged period and inflicted serious injuries. She required three days in hospital to recover. The use of a firearm during the offence enhanced the risks to both victims.
59. Parliament has expressly indicated in s 718.2(a)(ii) that the severity of an offence is aggravated where it is committed against a spouse. The sentencing judge made no comment with respect to the severity of this offence, or the statutory direction to treat the circumstances as aggravated.
60. In addition, the sentencing judge failed to appreciate the moral culpability of this offender. Although he identified Mr Morris as an aboriginal offender, he did not properly assess how any systemic or background factors related to that identity contributed to bringing him before the court. In particular, Mr Morris is not a victim of alcohol or other substance abuse. There is no evidence that he endured a childhood of family breakdown or dysfunction. And although he mentioned residential school in his submission, I do not understand him to say that he had been victimized or abused in school.
61. We are bound to be aware of and sensitive to systemic issues faced by aboriginal peoples generally. However, there do not appear to be any of the personal mitigating factors so often present in cases of aboriginal offenders. On the contrary, Mr Morris has achieved an impressive level of education and been successful in business. He became a leader in his community, and a person who was looked to as an example and role model.
62. In my view, the suspended sentence and probation order is unfit because it sends a completely wrong message to the victim, the offender and the community. An incident of brutal spousal abuse by this offender, in the context of a community where spousal abuse is epidemic, and victims are intimidated, clearly called for a sentence that provided some deterrence in a general sense, and more importantly perhaps, denunciation of the conduct. In my view, a term of incarceration is required to give effect to these objectives.
63. The Supreme Court of Canada has indicated that a term of incarceration designed to achieve general deterrence and denunciation is not entirely incompatible with traditional aboriginal notions of just sanctions: Gladue, supra 78. This inference is supported by some of the evidence in this case which describes the ways that the Kaska nation's traditional justice system, or Dena Keh, would have responded to a serious crime such as this assault. One witness suggested that temporary banishment from the community may have been considered. Another witness also spoke of intolerance for such offences and traditional Kaska practices of shunning such offenders from the community. As counsel for the Crown suggests, such traditional aboriginal sanctions are not entirely dissimilar from conventional non-aboriginal sentencing practices designed to separate the offender from the community.
64. In Wells, supra 50, Iacobucci J. left open the possibility that, in the appropriate circumstances, a sentencing judge may give greater weight to restorative principles and community-based sanctions notwithstanding that an aboriginal offender has committed a serious crime. I recognize that in other circumstances, sanctions based in aboriginal traditional justice and more focussed on restorative principles, may be an appropriate response for this type of offence. However, the sentence must be fit in the particular circumstances of each case. In addition, the s 718.2(e) requirement to consider alternatives to incarceration is limited to where it is ‘reasonable in the circumstances’: see Wells, supra 40.
65. A major difficulty here is that there is no way for this community to give effect to traditional aboriginal justice and restorative objectives at the present time and in this particular case. All of the persons who made submissions to the sentencing judge indicated that this offence opened a dialogue in the community regarding domestic violence, and initiated a process of rediscovering and relearning traditional responses. I agree with the sentencing judge's remarks that these are positive developments in the Watson Lake area, for the Liard First Nation and the Kaska people, and should be encouraged. However, the community is clearly in the process of gathering and developing the requisite knowledge, and assessing the resources it will need, to confront this problem. It is mistaken to confuse such positive developments with a capacity to actually give effect to appropriate traditional sanctions.
66. It is also, in my respectful view, mistaken to impose a sentence with the hope that it will somehow bring a community together, when the appropriateness of such a sentence is a significant source of division within that community. This approach forces the community to react to the sentence, rather than responding appropriately to the needs, capacities and understandings of the particular community. The difficulty Mr Morris has encountered in recording his community service hours, as well as requests for this court to clarify the meaning of ‘potlatch’ and ‘elders’ as those terms are used in the probation order, are examples of the community's inability to rely on traditional measures or restorative approaches in response to this particular offence.
67. The record indicates that there is a ‘toxic atmosphere’ in the community, which relates not only to this particular case but more generally to the epidemic of spousal abuse that exists. There are clearly significant divisions along gender lines, and apparently along ‘political’ lines too, within this community as to how best to deal with this crisis.
68. In these circumstances, the conventional Canadian judicial system must respond with a sentence that reflects all the principles of sentencing as articulated in the Criminal Code. All Canadians, aboriginal or not, are entitled to the protection of the law, and are subject to the control of the law. Women, and other persons who are vulnerable, must be protected and must not be afraid to lay complaints or to pursue charges. And when they do, the law must be seen to respond effectively.
69. Several reports and commentators have emphasized the need to ensure that the use of traditional aboriginal sentencing measures pay attention to the voices and special needs of aboriginal women: see Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada (Ottawa: Canada Communication Group, 1996) at 269–274; M.E. Turpel-Lafrond, supra at 49. This may be especially important where, as in this case, the offender is linked to the dominant power structures within the community. Unfortunately, the evidence indicates that this community has not yet been able to formulate a process that effectively addresses such concerns.
70. As a result, in this particular case, given this offence and this offender, and the context of the community in which the offender and victim reside, a term of incarceration is required. ...
[His Honour referred to several comparable cases imposing custodial sentences.]
74. In my view, in light of these decisions, and given the three weeks Mr Morris spent in pre-trial custody and the time spent subject to the suspended sentence, a custodial sentence of 12 months would be fit in the present case. This will reflect not only the necessary degree of deterrence and denunciation, but should also facilitate rehabilitation goals in that Mr Morris may be better able to access treatment and counselling programs which have proven difficult to arrange in Watson Lake. In addition, I would uphold the two year probation order, subject to the variation of its terms and conditions outlined below.
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