Frank E said:
That's not how I read it. It is specifically speaking to the challenges of aboriginals, and their numbers in prisons, and then suggesting different sentences because of this.
From the sentencing report (thank you for that link):
"Imprisonment is to be considered a last resort, especially when protective custody could be expected and Robinson is an aboriginal offender."
That may be the case in certain circumstances, but doesn't that need to be balanced with the desires of the victims and society?
...
I would prefer that we administer justice that balances the victims' rights, punishments, deterrents, and restorative measures.
It is balanced. That is the whole purpose of the sentencing hearing and sentencing principles. From the Criminal Code:
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.
These sentencing principles are there to ensure the over-arching goal of a
fit and proper sentence for the individual. Sentences have always been
individualized. Just because a court is required to take into account the background and history of aboriginal offender's does not equal ignoring the victim or deterrence. These will ALL be brought up in the sentencing hearing. The sentence will be individualized based on a multitude of criteria, aboriginal heritage being only one aspect of that.
As I've alluded to previously, from s718.2:
(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 to the circumstances of aboriginal offenders.
These apply to ALL offenders, aboriginal or not. If there are appropriate alternative sentences for white offenders than jail time, they will get it. In the sentencing hearing, the court will hear any relevant background information on the white offender to mitigate their sentence.
The court is simply required to now ensure that, in cases of aboriginal offenders, they consider the unique history of aboriginals in this country and the unique impacts upon aboriginal society that this history has wrought.
This isn't "you're this race, you get a discount! you get a discount!" as if it were some Oprah-themed judicial talk show. This isn't arbitrarily choosing a race to bestow some advantage upon. If anything, it is a recognition of failed past and an attempt for a better future for everyone. This inevitably impacts upon all society if the socio-economic conditions facing aboriginals in this country aren't ameliorated.
The Manitoba Court of Appeal stated in R v Vermette in 2001:
The section does not mandate better treatment for aboriginal offenders than non-aboriginal offenders. It is simply a recognition that the sentence must be individualized and that there are serious social problems with respect to aboriginals that require more creative and innovative solutions. This is not reverse discrimination. It is an acknowledgement that to achieve real equity, sometimes different people must be treated differently.
If you want to simply look at it as "race = discount" then I think that is completely missing the point. The way you are seeing it to me feels like you are viewing the fact they are aboriginal as (1) resulting in a lesser sentence for being that race; and (2) that anything less than imprisonment is a lesser sentence, and therefore less than adequate in terms of justice.
In the 2012 Supreme Court of Canada case of R v Ipeelee, the court stated:
The methodology set out by this Court in Gladue is designed to focus on those unique circumstances of an Aboriginal offender which could reasonably and justifiably impact on the sentence imposed. Gladue directs sentencing judges to consider: (1) the unique systemic and background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and (2) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection. Both sets of circumstances bear on the ultimate question of what is a fit and proper sentence.
The court went on to describe how Canadian criminal law is based upon the foundation that criminal liability only flows from voluntary conduct. From Ipeelee:
Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options for positive development. While this rarely ? if ever ? attains a level where one could properly say that their actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moral culpability. As Greckol J. of the Alberta Court of Queen?s Bench stated, at para. 60 of R. v. Skani, 2002 ABQB 1097, 331 A.R. 50, after describing the background factors that lead to Mr. Skani coming before the court, ?[f]ew mortals could withstand such a childhood and youth without becoming seriously troubled.? Failing to take these circumstances into account would violate the fundamental principle of sentencing ? that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The existence of such circumstances may also indicate that a sanction that takes account of the underlying causes of the criminal conduct may be more appropriate than one only aimed at punishment per se.
?
As Cory and Iacobucci JJ. state in Gladue, at para. 69:
In cases where such factors have played a significant role, 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. In many instances, more restorative sentencing principles will gain primary relevance precisely because the prevention of crime as well as individual and social healing cannot occur through other means.
I think we need to get away from viewing alternative sentencing methods (which exist for all offenders anyways) as working to lessen their guilt or punishment in some way. It is simply a reflection of the justice system evolving to treat offenders in a way that benefits society as a whole and attempts to reduce recidivism.
And one final quote from Ipeelee:
Section 718.2(e) does not create a race-based discount on sentencing. The provision does not ask courts to remedy the overrepresentation of Aboriginal people in prisons by artificially reducing incarceration rates. Rather, sentencing judges are required to pay particular attention to the circumstances of Aboriginal offenders in order to endeavour to achieve a truly fit and proper sentence in any particular case. This has, and continues to be, the fundamental duty of a sentencing judge. Gladue is entirely consistent with the requirement that sentencing judges engage in an individualized assessment of all of the relevant factors and circumstances, including the status and life experiences, of the person standing before them. Gladue affirms this requirement and recognizes that, up to this point, Canadian courts have failed to take into account the unique circumstances of Aboriginal offenders that bear on the sentencing process. Section 718.2(e) is intended to remedy this failure by directing judges to craft sentences in a manner that is meaningful to Aboriginal peoples. Neglecting this duty would not be faithful to the core requirement of the sentencing process.
This is as much as I can really contribute on the matter. I won't be taking my course on Canadian criminal law until next term, and to go any further in an analysis of the law would entail entirely too much time (exams in a week and a half).
Hopefully it's at least provided some deeper understanding of the law and the justificiation behind it.
R v Ipeelee decision: http://scc.lexum.org/en/2012/2012scc13/2012scc13.html
