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naraburns  nihil supernum  3yr ago (text post)   33751 thread views

Culture War Roundup for the week of January 2, 2023

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This law has apparently been in effect since 1995, so this is not exactly news.

Is there any reason why the optimal sentences for indigenous convicts are lower than for non-indigenous convicts?

The question is not whether the law is optimal; it is whether it is just. The law says: "(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders." I don't know enough about the history of treatment of Aboriginals in Canada, nor enough about the actual effect of the law on actual sentencing, to opine one way or th other.

Does it really make sense to blame the offender's dysfunctional background on his indigenous ancestry?

Surely that depends on the individual. Here is the operative law:

I pause here to note that both learned defence counsel and Crown counsel acknowledge that, given the totality of the circumstances, a custodial disposition is necessary. But the court goes on to state that it is important for the court, when sentencing any individual offender, to have particular consideration given to the systematic racism and effects of colonization that have been foisted upon Indigenous persons in this country for decades. In that regard, the court has made it clear that in some circumstances, this should be considered a mitigating factor and might result in a disposition that might not otherwise be appropriate for non‑Indigenous offenders.

[27] However, at para. 78 in Gladue, the court had this to say:

[78] In describing the effect of s. 718.2(e) in this way, we do not mean to suggest that, as a general practice, aboriginal 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. It is unreasonable to assume that aboriginal peoples themselves do not believe in the importance of these latter goals, and even if they do not, that such goals must not predominate in appropriate cases. Clearly there are some serious offences and some offenders for which and for whom separation, denunciation, and deterrence are fundamentally relevant.

[28] The court went on to state at the next paragraph the following:

[79] Yet, even where an offence is considered serious, the length of the term of imprisonment must be considered. In some circumstances the length of the sentence of an aboriginal offender may be less and in others the same as that of any other offender. ...

[29] Then finally at para. 80:

[80] As with all sentencing decisions, the sentencing of aboriginal offenders must proceed on an individual (or a 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? ...[Emphasis in original]

[30] Some years later, the Supreme Court of Canada in Ipeelee revisited these principles that were enunciated in Gladue and expressed some concern with the effectiveness of s. 718.2(e) in sentencing decisions, but generally accepted and acknowledged the statements contained in Gladue.

[31] At para. 72, the court stated the following:

[72] ... 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 ...

[32] At the same time, at para. 75, the Supreme Court of Canada reiterated that that particular provision does not create “a race‑based discount on sentencing.” It states that:

[75] ... 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 been, and continues to be, the fundamental duty of a sentencing judge. ...

[33] These particular principles outlined in Ipeelee and Gladue were recently commented upon by the Ontario Court of Appeal in Altiman, a 2018 [sic ‑ 2019] decision which again acknowledges the necessity to take into consideration the background and history of Indigenous persons in this particular situation; that is, before the courts facing criminal charges.

[34] Being guided by these principles and directions, applying them to the particular circumstances in this case and the victims, and Mr. Thomas's personal circumstances, the question is what is a fit and just sentence that properly reflects all of the relevant fundamental principles of sentencing?

It does not seem to me that there is a whole lot to see here, but perhaps there is; perhaps there is research that attempts to show the effect of the provision on actual sentences is large.

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