An opinion on reform changes with respect to the principles and purposes of sentencing
Section 718.(d) and (e) are the rehabilitating purposes in the sentencing scheme. These particular sections are imperative within the principles of sentencing. As we already know conditional sentences were implemented by Parliament during the last major sentencing reform in 1994, recognizing that incarcerating offenders was not a means of rehabilitating them. Footnote 23 The primary goal for conditional sentences was to reduce the reliance upon incarceration by providing the courts with an alternative sentencing mechanism. Conditional sentences would still be able to maintain some type of denunciation and deterrent effect. Footnote 24 The conditional sentence provides an opportunity to further incorporate restorative justice concepts into the sentencing process by encouraging those who have caused harm to acknowledge this fact and to make reparation. Footnote 25
Many offences where conditional sentences are not available due to mandatory minimums or maximums sentences being changed within the Code, make the application of rehabilitation and reparation difficult to apply. It appears to me that in order to be able to fully and freely allow judges to apply discretion, this purpose of sentencing mandatory minimums need to be limited and reviewed. The mandatory sentences inevitably disallows any discretion the Judge has to attempt to assist the offender in goals of rehabilitation.
Restrictions on the application of restorative principles have increased over the past 4 years. Academic Jonathan Rudin argued that essentially due to mandatory minimums, Parliament has taken away judicial discretion and now that discretion has been left up to the Crown when determining whether to procced summarily or by indictment on certain crimes. Footnote 28 Rudin has also argued, and I would agree, that mandatory minimums have “severely constrained” the process to “implement Gladue and Ipeelee in a meaningful way.” Footnote 29 In addition, mandatory minimum sentencing goals are fundamentally rooted in the principles of denunciation and deterrence. Footnote 30 This is contrary to any rehabilitation principles.
We see the purposes overlapping in section 718.2(e) which states that:
“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 Aboriginal offenders.”
This section recently changed with the implementation of the Canadian Victim’s Bill of Rights (The “CVBR”) Footnote 31 which I would argue adds a somewhat punitive aspect to the rehabilitation principle. What I view as the punitive aspect is the statement “
…and consistent with the harm done to victims or to the community.” This section is punitive in the sense that it requires judges to consider harm done to the victim or community. I do not think of the inclusion of the harm done is necessary within this section as Parliament has already implemented it in under s. 722 of the Code which mandatorily requires judges to consider any statement of a victim, if one is filed. Judges can also, under section 718.2(a)(iii.1) … [consider] “
evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation.” 718.2(a)(iii) certainly opens up the harm done to victims and could also include the community. Adding victim and community harm to the rehabilitation section seems onerous, excessive and displaced.
Courts have recognized the need to address the overrepresentation of Aboriginal people through rehabilitation. The Courts have already tried to reconcile the issues of the overrepresentation and impacts of colonization. The Honourable Mr. Justice Cory held the following:
These findings cry out for a recognition of the magnitude and gravity of the problem and for the responses to alleviate it. The figures are stark and reflect what may fairly be termed a crisis in the Canadian criminal justice system. The drastic overrepresentation of aboriginal peoples within both the Canadian prison population and criminal justice system reveals a sad and pressing social problem. It is reasonable to assume Parliament, in singling out aboriginal offenders for distinct treatment in s. 718.2(e), intended to attempt to redress the social problem to some degree. The provision may properly be seen as Parliament’s direction to members of the judiciary to inquire into the cause of the problems and endeavor to remedy it, to the extent that a remedy is possible through the sentencing process. Footnote 32
It is my belief that the Courts in Saskatchewan have been making some attempts to reconcile the application of Gladue principles when sentencing Aboriginal offenders. Section 718.2(e) should read: “
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.” The statement “
and consistent with the harm done to victims or the community should be considered for all offenders,” should be struck.
Rehabilitation is not always an easy goal to achieve with the criminal justice system. One additional clause that should be considered in the rehabilitation section, relates to the presence of mental disorders and cognitive impairments. Although we see mental health being a problem for centuries it is a fairly new phenomenon in our court system, especially when it comes to sentencing. Mental health and sentencing is a very complex issue. Saskatoon has quite recently (2014) started a mental health docket court and is still in the infancy stage of understanding what the outcome of the new the Mental Health Strategy data will represent. Footnote 33 Not everyone with a mental health diagnosis will end up in this court; criteria will depend on the willingness of the offender and the type of diagnosis.
Not all Canadian courts have this type of initiative and not everyone in “front line work” (Judges, Prosecutors and Defence Counsel) understand mental health. Drafting a clause including acknowledgement or an inquiry of mental health could assist many offenders in the rehabilitation process. The clause would at least require the judge to consider least restrictive and more rehabilitative principles when sentencing offenders with mental health issues. Again, this would be a strong message from Parliament that mental health and cognitive impairment is a serious issue and requires serious thought before determining appropriate sentences for offenders.
In the case of R v Machiskinic, Footnote 34 Trevor Machiskinic was charged with aggravated assault. Mr. Machiskinic was an Aboriginal male who suffered from mental health problems, in particular it was suggested that he had Fetal Alcohol Spectrum Disorder. Mr. Machiskinic was bullied and teased about his sexuality over a long period of time by his cousin resulting in him beating his cousin with a baseball bat. Mr. Machiskinic had no prior criminal record and despite that and his cognitive impairment, he was sentenced to one year in jail with 12 months of probation to follow. There were two issues with this case that created much criticism. First, it was contended by his lawyer that Gladue was misapplied. Secondly, the fact that Mr, Machiskinic had a cognitive impairment was not taken into account during sentencing. The lawyer for Mr. Machiskinic attempted to appeal the decision, however leave to appeal was denied. Machiskinic’s case is a sad and disturbing example of how courts lack understanding with mental health issues. Unless Parliament implements change by addressing the impact of mental health and cognitive impairment, courts may not always take these factors into consideration when sentencing offenders. Footnote 35 Therefore, it would be helpful if there was a clause to address offenders with mental health or cognitive impairment and that the clause may consider all alternatives to incarceration. Many of the offenders with cognitive impairments require a different type of specialized care, not jail.
One last point on s. 718.2(e) is that it only focuses on Aboriginal offenders. When the last reforms were made, it was specifically targeted to the over-incarceration of Aboriginal offenders. While I do not have specific data of the overall minority groups incarcerated, I think this is something that Parliament may want to turn their mind to. In fact Julian Roberts and Andrew von Hirsh looked at this same issue shortly after the last reform in 1996 noting the following:
“Aboriginal Canadians are not the only visible minority that is over-represented in the penal institutions. In fact, data from the province of Ontario show that racial disproportion of blacks in the province’s jails is far greater than that associated with aboriginals…It seems clear that Black inmates in the Province of Ontario are subject to negative treatment that is not accorded other categories of inmates.” Footnote 36
Based on this commentary from nearly 10 years ago, I would think this is something that the racial distinction within the clause be amended in such way to keep the portion of the clause “with particular attention to the circumstances of aboriginal offenders” but to also make it inclusive to any over-represented ethnic group, as noted above.
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