Aboriginal status is a factor to consider in extradition matters

United States v. Leonard, 2012 ONCA 622 holds that Aboriginal status is a factor to consider in extradition matters.  The case also provides a good review of the current application of Gladue:

Issue 1. Did the Minister err in law by failing to give adequate consideration to the applicants’ Aboriginal status and the Gladue principles in relation to their s. 7 Charter claims?

(a) The Gladue principles

[49]       In Gladue, the Supreme Court stated, at para. 67, that “[y]ears of dislocation and economic development have translated, for many aboriginals, into low incomes, high unemployment, lack of opportunities and options, lack or irrelevance of education, substance abuse, loneliness, and community fragmentation”. These conditions, together with bias and systemic racism, have contributed to what the Court described, at para. 64, as a “crisis” in Canada’s criminal justice system: the grossly disproportionate incidence of crime and incarceration amongst Aboriginal peoples. Section 718.2(e) of the Criminal Code, which directs sentencing judges to consider alternatives to imprisonment for all offenders but “with particular attention to the circumstances of aboriginal offenders”, was interpreted in Gladue, at para. 33, as a “direction to sentencing judges to undertake the process of sentencing aboriginal offenders differently”. The Court held that a different approach was required to meet what it had described in R. v. Williams, [1998] 1 S.C.R. 1128, at para. 58, as widespread bias against aboriginal people within Canada and “evidence that this widespread racism has translated into systemic discrimination in the criminal justice system”. In Gladue, the Supreme Court adopted the conclusion of the Royal Commission on Aboriginal Peoples (Gladue, at para. 62) and the Aboriginal Justice Inquiry of Manitoba (Gladue, at para. 63) that Canada's criminal justice had failed to take into account “the substantially different cultural values and experience of aboriginal people”.

[50]       Gladue mandates, at para. 66, a different framework of analysis for sentencing aboriginal offenders, taking into consideration “the distinct situation of aboriginal peoples in Canada” including:

The unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and

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.

[51]       The Supreme Court has emphasized, however, that the focus on systemic factors and specially tailored sanctions does not amount to reverse discrimination in favour of aboriginal offenders by offering them an automatic reduction in sentence. To the contrary, the Gladue approach is intended to avoid the discrimination against aboriginal offenders that flows from the failure of the justice system to address their special circumstances. As explained in Gladue at paras. 87-88:

The fact that a court is called upon to take into consideration the unique circumstances surrounding these different parties is not unfair to non-aboriginal people. Rather, the fundamental purpose of s. 718.2(e) is to treat aboriginal offenders fairly by taking into account their difference.

…[T]he direction to consider these unique circumstances flows from the staggering injustice currently experienced by aboriginal peoples with the criminal justice system.  The provision reflects the reality that many aboriginal people are alienated from this system which frequently does not reflect their needs or their understanding of an appropriate sentence.

[52]       The Gladue approach has been reinforced by R. v. Ipeelee, 2012 SCC 13, 280 C.C.C. (3d) 265, a decision handed down after the Minister gave his reasons in this case. Ipeelee reiterates that the Gladue approach does not amount to reverse discrimination but is, rather “an acknowledgement that to achieve real equity, sometimes different people must be treated differently”: Ipeelee, at para. 71. Gladue recognizes that Canadian courts “have failed to take into account the unique circumstances of Aboriginal offenders that bear on the sentencing process” and “is intended to remedy this failure by directing judges to craft sentences in a manner that is meaningful to Aboriginal peoples”: Ipeelee, at para. 75.

[53]       The Gladue principles have been extended by decisions of this court beyond the context of sentencing to address the need to ensure appropriate treatment for Aboriginal people as they interact with the justice system. Frontenac Ventures Corp. v. Ardoch Algonquin First Nation, 2008 ONCA 534, 91 O.R. (3d) 1, leave to appeal to S.C.C. refused, [2008] S.C.C.A. No. 357, applying Gladue in the context of civil contempt of court, holds, at para 57: “Although Gladue was focussed primarily on the serious problem of excessive imprisonment of aboriginal peoples, the case in a broader sense draws attention to the state of the justice system’s engagement with Canada’s First Nations.” In R. v. Sim (2005), 78 O.R. (3d) 183 (C.A.) this court held, at para. 16, that the Gladue principles should not be limited to the sentencing process and that the Ontario Review Board has an obligation to consider the principles in reviewing the disposition of an Aboriginal NCR accused.

(b) Did the Minister err in law in his consideration of the Gladue factors?

[54]       The Minister indicated that he was prepared to consider Gladue in relation to the applicants’ s. 7 claims but not in connection with their s. 6(1) claims. In the circumstances of this case, there is clearly a very significant overlap in the application of Gladue to both claims. Both turn to a substantial degree on the issue of disparity of sentence and the potential impact of severe foreign sentences on aboriginal offenders. As the Gladue issue arises more squarely under s. 7 than under s. 6(1), the appropriate starting point for analysis is the consideration of Gladue in relation to the s. 7 claims.

[55]       I agree with the applicants’ submission that the Minister failed to apply the correct legal test and that he failed to carry out the proper analysis of the application of theGladue factors when he considered the applicants’ s. 7 claims.

[56]       The applicants’ s. 7 claims required the Minister to consider whether, in the light of all the circumstances, the applicants’ surrender would be inconsistent with the principles of fundamental justice and hence “shock the conscience” of Canadians. As the Supreme Court of Canada held in United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283, at para. 68, the phrase “shocks the conscience” conveys “the exceptional weight of a factor such as the youth, insanity, mental retardation or pregnancy of a fugitive” that may tip the balance against surrender and

…should not be allowed to obscure the ultimate assessment that is required: namely whether or not the extradition is in accordance with the principles of fundamental justice. The rule is not that departures from fundamental justice are to be tolerated unless in a particular case it shocks the conscience. An extradition that violates the principles of fundamental justice will always shock the conscience. [Emphasis in original.]

[57]       Although the Minister appears to accept that the Gladue principles are relevant to the determination of applicants’ claims under s. 7 of the Charter and s. 44(1)(a) of the Extradition Act, it is my view that the Minister’s reasons reveal that he refused to apply the Gladue principle that the interests of justice require that Aboriginal defendants be accorded special consideration in order to ensure that entrenched patterns of discrimination are not maintained and repeated. To repeat, in Leonard, the Minister stated:

...I am also of the view that it would be unfair if Mr. Leonard could escape a trial on the offence alleged against him on the basis that he is an Aboriginal defendant or on the basis of his daughters’ needs when accused persons in Canada must generally face prosecution regardless of their heritage, or the fact that surrender would have a negative effect on their family.

[58]       In Gionet, the Minister put it in virtually identical terms:

…I am of the view that it would be unfair if Mr. Gionet could escape a trial on the serious offences alleged against him on the basis that he is an Aboriginal defendant or on the basis of his family’s needs when accused persons in Canada must generally face prosecution regardless of their heritage, of the fact that surrender would have a negative effect on their family.

[59]       In my view, the Minister’s reasons reveal two significant errors of law.

[60]       First, the Minister’s reasoning rests on the proposition that to consider the disadvantages suffered by the applicants on account of the systemic wrongs they have suffered because of their Aboriginal backgrounds would be “unfair” to other accused persons. As I have already attempted to explain, Gladue stands for the proposition that insisting that Aboriginal defendants be treated as if they were exactly the same as non-Aboriginal defendants will only perpetuate the historical patterns of discrimination and neglect that have produced the crisis of criminality and over-representation of Aboriginals in our prisons. Yet it is on the idea of formal equality of treatment the Minister rests his Gladue analysis. That approach was soundly rejected by the Supreme Court in both Gladue and Ipeelee, which emphasize that consideration of the systemic wrongs inflicted on Aboriginals does not amount to discrimination in their favour or guarantee them an automatic reduction in sentence. Instead, Gladue factors must be considered in order to avoid the discrimination to which Aboriginal offenders are too often subjected and that so often flows from the failure of the justice system to address their special circumstances. Treating Gladue in this manner resonates with the principle of substantive equality grounded in the recognition that “equality does not necessarily mean identical treatment and that the formal ‘like treatment’ model of discrimination may in fact produce inequality”: R. v. Kapp, 2008 S.C.C. 41, [2008] 2 S.C.R. 483, at para. 15. The Minister refused to apply this basic Charter principle in his s. 7 analysis.

[61]       Second, the Minister posits his choice as being to either surrender the applicants to face justice elsewhere or to allow them to escape prosecution altogether. In my view, this analysis is seriously flawed. While no charges have yet been laid in Canada, if surrender were refused, it would certainly be open to the PPSC to reconsider and to lay charges.

[62]       As I will explain below in relation to the s. 6(1) claim, the Minister’s analysis ignores the possibility that the PPSC could reconsider and decide to prosecute in the event that Leonard or Gionet were not surrendered. Even if the Minister himself has no authority to overrule the PPSC decision not to lay charges in Canada, there would be nothing to stop the PPSC from reassessing the matter and laying charges in Canada if surrender to the United States is refused. By treating the choice as either surrendering the applicants to the United States or allowing them to “escape a trial”, the Minister has created a false dichotomy and erred in law.

[63]       I wish to emphasize again that just as Gladue is not a “get out of jail free” card (R. v. Kakekagamick (2006), 81 O.R. 3d 664 (C.A.), at para. 34), the application ofGladue in the context of extradition does not mean Aboriginal offenders get favoured treatment. To the contrary, application of Gladue is intended to guard against and avoid the discrimination that, as experience demonstrates, will occur where decision-makers fail to advert to the specific and particular problems faced by Aboriginal Canadians in our system of justice: see Ipeelee, at paras. 67-68.

[64]       I conclude that the Minister’s s. 7 analysis reveals significant legal errors. As the Minister erred in law and failed to apply legally relevant factors, his conclusion that surrender would not “shock the conscience” is unreasonable and must be set aside: see Lake, at para. 41; United States of America v. Thamby, 2011 ONCA 333, 280 O.A.C. 298, at para. 21.