Fit sentence for Aboriginal offenders in criminal matters

The sentencing of Aboriginal offenders is given special consideration:  R. v. Gladue, [1999] 1 S.C.R. 688.

 

Sometimes even crimes of significant violence will not lead to a term of incarceration if the offender is of First Nations heritage. 

 

In R. v. Peters, 2010 ONCA 30, released today the offender, as Justice Watt described in dissent, “… committed here was a serious violent offence.  And not the first serious violent offence in which the respondent has participated.  Gladue teaches that generally, as a matter of practical reality rather than sentencing principle, particularly violent and serious offences will result in imprisonment for aboriginal offenders as often as for non-aboriginal offenders.”  Justice Watt would have imposed a significant term of imprisonment.

 

The offence was dramatic:

 

“[The accused] swung the beer bottle she was holding at the victim’s head, breaking the bottle with the blow.  She then followed through with her swing in a downward motion with the broken bottle, causing two lacerations to the victim’s face that required 21 stitches to close.

 

Nearly a year after the incident, the victim was still experiencing continuing pain in her left eye and face, headaches, left eyelid muscle spasms, and facial asymmetry.  The scars remain visible and may require plastic surgery.”

 

Nevertheless, relying on Gladue, the Court of Appeal, by a majority, upheld a suspended sentence plus three years probation.  The Court writes:

 

[13]         In the end – after balancing all of the factors relative to sentencing an aboriginal person, and after taking into account the seriousness of the offence and the aggravating and mitigating factors relating to it, the contents of the favourable Gladue report he had before him, the victim impact statements, and the particular circumstances of this offender – the sentencing judge simply decided that a period of incarceration was not the appropriate disposition for this offender in relation to this crime.  He concluded:

In the end result, I am not satisfied that a period of incarceration is necessary either for the purpose of expressing denunciation or deterrence in this case.  Further, a period of incarceration manifestly fails to achieve the restorative purpose that is of particular importance in the case of Aboriginal offenders.  A period of incarceration would undoubtedly cause Ms. Peters to lose her job and then quite possibly set back the progress that she has made over the past few years.  At the same time, however, I appreciate that there needs to be some close supervision of Ms. Peters in an effort to ensure that she does not commit a further offence.

[14]         It was open to the sentencing judge to come to this conclusion on the record before him.  To say that the balance will often tilt in favour of deterrence and denunciation in the case of serious and violent offences, as this Court did in W.(R.), is not to say that it always will.  Neither Gladue nor its progeny establish that aboriginal offenders are to be sentenced to terms of incarceration in all cases of serious offences.  At the end of the day, as many authorities have noted, it remains for the sentencing judge to consider the case as a whole and to arrive at a sentence that is fit and just in the circumstances.

[15]         I have read the draft reasons of my colleague, Justice Watt.  Respectfully, I am unable to accept – as he concludes – that the sentencing judge failed to give effect to the predominant principles of denunciation, deterrence, promotion of responsibility and acknowledgement of harm.  The sentencing judge gave very careful consideration to all of the principles of sentencing relating to aboriginal offenders, including the relevant jurisprudence (referred to above) and including the need to give effect to the objectives of denunciation and deterrence.  He was also alert to the need to promote responsibility in offenders for their actions, and said so explicitly.

[16]         For the reasons he clearly expressed, and after addressing all of the pertinent principles and factors, the sentencing judge concluded that a period of incarceration was not necessary to meet the needs of denunciation and deterrence and indeed that it would be courterproductive to achieving the restorative purposes that are of particular importance in the case of Aboriginal offenders.  This he was entitled to do.  The weight to be given to the various sentencing factors – including whether incarceration was necessary to meet the objectives of denunciation and deterrence – was for him to decide.