[32] There is nothing in the governing authorities that places the burden of persuasion on an Aboriginal accused to establish a causal link between the systemic and background factors and commission of the offence. Further, s. 718.2(e) and the Gladue approach to sentencing Aboriginal offenders is not about shifting blame or failing to take responsibility; it is recognition of the devastating impact that Canada's treatment of its Aboriginal population has wreaked on the members of that society.
[33] As expressed in Gladue, Wells and Kakekagamick, s. 718.2(e) requires the sentencing judge to "give attention to the unique background and systemic factors which may have played a part in bringing the particular offender before the courts": Gladue at para. 69. This is a much more modest requirement than the causal link suggested by the trial judge. As counsel for the appellant submitted in this case, it would be almost impossible for most Aboriginal offenders to establish a direct causal link between systemic factors and any particular offence. Commission of offences are affected by a host of circumstances, the systemic factors of the particular Aboriginal community may, as the name suggests, be nothing more than the background or the setting for commission of the offence. However, the Gladue principles require those factors to be taken into account. In cases where those factors are shown to have played a significant role, it may be that imprisonment will utterly fail to vindicate the objectives of deterrence or denunciation: Gladue at para. 69. In other cases, where the impact is not as dramatic, those systemic and background factors must nevertheless be taken into account in shaping the appropriate penal response.
[34] It seems to me that the systemic and background factors affecting the FWFN generally, and the appellant in particular, must have played a part in bringing her before the courts. Her earliest years were shaped by abject poverty. She grew up in an atmosphere of dislocation, discrimination, and alienation as a result of government policies that subjected her father to the ravages of residential schooling and deprived her mother, father and siblings of their rights as Aboriginals . Her mother's upbringing was riddled with substance abuse and violence. The appellant herself suffers from a severe gambling addiction.
[35] Even if the systemic and background factors did not play a part in bringing the appellant before the courts, the Gladue principles still require recognition of the impact of Canada's treatment of its Aboriginal population in shaping the appropriate sentence. The court is required to consider how this particular offender has been affected by those systemic factors. As the court said in Gladue at para. 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? 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 added.]
[36] And, as the court said at para. 81: "Sentencing must proceed with sensitivity to and understanding of the difficulties aboriginal people have faced with both the criminal justice system and society at large." And again, at para. 68:
It is true that systemic and background factors explain in part the incidence of crime and recidivism for non-aboriginal offenders as well. However, it must be recognized that the circumstances of aboriginal offenders differ from those of the majority because many aboriginal people are victims of systemic and direct discrimination, many suffer the legacy of dislocation, and many are substantially affected by poor social and economic conditions. Moreover, as has been emphasized repeatedly in studies and commission reports, aboriginal offenders are, as a result of these unique systemic and background factors, more adversely affected by incarceration and less likely to be "rehabilitated" thereby, because the internment milieu is often culturally inappropriate and regrettably discrimination towards them is so often rampant in penal institutions. [Emphasis added.]
[37] I conclude this discussion with the point made by LaForme J.A. at paras. 34 and 35 of Kakekagamick:
Nor is being an Aboriginal offender, as I have heard it referred to, a "get out of jail free" card.
Rather, s. 718.2(e) was enacted as a remedial provision, in recognition of the fact that Aboriginal people are seriously over-represented in Canada's prison population and in recognition of the reasons for why this over-representation occurs.
4 comments:
I don't know if one can fairly compare - but some of the discourse in this decision re systemic and background factors which need to be taken into consideration have been studiously bracketed out of the prevailing mainstream discourse re Caledonia and the rule of law. Ever since Blatchford published her one-sided, deliberately myopic book about the Douglas Creek Estates protest - the press have been piling on painting native protesters as criminals, renegades, oppressors, and worse. At a book signing in Caledonia - Blatchford said her book wasn't about the oppression of natives, or about land claims or about residential schools, etc. In other words, Blatchford (and the recent press coverage) deliberately bracketed out all context that makes the occupation of Douglas Creek Estates understandable. Reading the recent press coverage one would concude that a bunch of criminals woke up one morning and decided, for no reason at all, and with no justification whatsoever, to steal land from us white folks. The press often points to Justice Marshall's decison ruling the occupation illegal but they never talk about his undeclared conflict (see Law Times). Nor do the press ever talk about how the ONCA kicked Marshall's ass for cherry-picking the laws he chose to consider versus the ones he ignored. And with all the talk about rule of law - nobody talks about how anti-native townsfolk "oppressed" Pam Watson and her family for daring to put up a sign in her yard supporting the native's right to protest in the hope of getting 70 year old land claims addressed. She and her husband were threatened and property was destroyed. But you don't hear Blatchford et al lamenting the fact that the OPP have never charged the white hooligans who committed those crimes. In some of the press coverage those who paint the native protesters as criminals quote Martin Luther King' "I had a deam" speech as if it is us whites and not the natives who have been historically oppressed, abused and villified for decades. It is a bit much to compare the situation of white Caledonians to that of 1950's black Mississippi. More recently, the local press talks about the demand for a "truth and reconcilliation" apology from the natives - as if white Caledonia townsfolks' suffering is analagous to pre-Mandella apartheid South Africa. Sorry for the rant but it seems to me that if in a criminal case the court considers the obvious systemic and background explanatory variables that provide context for the crime - it is a little much to witness the studious attempt to "understand" the Douglas Creek protest devoid of the myriad of reasons why natives would choose to protest the stubborn endless delay in land claims settlements.
Even the BC Grand Chief finds this decision outrageous now that he has seen it applied to Monty Robinson
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