B E T W E E N:

Appellant

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Respondent

Appellant

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Respondent

Appellant

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Respondent

1. Aboriginal Legal Services of Toronto Inc. (hereinafter "ALST") intervenes pursuant to an order of Associate Chief Justice O’Connor on July 29, 2003.

2. ALST participated as an intervener before the Supreme Court of Canada in both R. v. Gladue and R. v. Wells. ALST subsequently played a significant role in the establishment of a specialized court for Aboriginal accused persons located at the Old City Hall Courts in Toronto, known as the Gladue (Aboriginal Persons) Court. ALST provides staff resources to the Court.

R. v. Gladue, [1999] 1 S.C.R. 688. (hereinafter "Gladue")

1. ALST will argue that the trial judges did not err in conducting the sentencing hearings and that the actions of Hill J. in requiring the parties to address the issue of systemic discrimination were permissible under s.723(3) of the Criminal Code and supported by s.718.2(e) of the Criminal Code as interpreted in Gladue.
2. ALST will argue that the trial judges did not err in their interpretation of s.718.2(e). In requiring judges to examine all available sanctions other than imprisonment that are reasonable in the circumstances, s. 718.2(e) applies to all offenders, as do the principles of restorative justice set out in Part XXIII of the Criminal Code. Systemic discrimination is a relevant circumstance and it is an error to conclude that s.718.2(e) only applies to African-Canadian offenders if their individual circumstances are similar to those of Aboriginal offenders. It is also an error to only consider systemic discrimination where the offender can give evidence of the direct role it played in the commission of the offence.
3. ALST will argue that the trial judges did not err in concluding that those convicted of importing narcotics can be eligible for a conditional sentence and that neither the nature of the offence nor the purposes and principles of sentencing preclude the imposition of a conditional sentence.
4. ALST will take no position on the remaining grounds of appeal.

4. It is the Appellant’s position that Hill J. committed an error of law by raising, on his own, the issue of the over-representation of African-Canadian women in the context of a sentencing hearing and producing evidence related to that issue, despite providing the parties with an opportunity to make submissions on the issue.

Appellant’s Factum, paras. 5, 42, 43.

5. It is submitted that the Appellant’s position is at odds with the decision of the Supreme Court of Canada in Gladue. If the Appellant’s position were accepted by this Court, then the ability of a sentencing judge to follow the dictates in Gladue would be frustrated if counsel did not specifically advert to the fact that the offender was Aboriginal, provide relevant information, and then make submissions as to sentence addressing this issue.

6. In Gladue the Supreme Court of Canada held that:

Gladue, supra, para. 82.

8. In order to carry out this function, it is necessary for a sentencing judge to "take judicial notice of the systemic or background factors and the approach to sentencing which is relevant to aboriginal offenders."

Gladue, supra, para. 83.

9. The Court in Gladue was also clear that this duty applies to a judge even if the offender is unrepresented. Many reports have concluded that Aboriginal accused may be underrepresented by counsel, in part, because their lawyers do not understand the conditions that they face.

10. All of the above suggests that a judge who believes she has an Aboriginal person before her for sentencing has a duty to first inquire as to whether or not the person is Aboriginal and, if so, then the judge must ensure that the relevant information necessary to craft a fit sentence is adduced. It is expected that counsel will provide assistance in the provision of such evidence, even if counsel did not raise the issue of the Aboriginal identity of the offender. Assistance will also be provided by pre-sentence reports. However, at the end of the day, the statutory obligation must be discharged by the trial judge. With respect to the duty of the sentencing judge, the Supreme Court also stated as follows in Gladue:

11. This Court has, in R. v. Borde, accepted that the reasoning of Gladue can also apply to African-Canadians. Rosenberg, J.A., said of the application of Gladue to non-Aboriginal people: "Some of the language used by the court...could equally apply to the approach to sentencing other similarly disadvantaged groups."

12. After quoting from Gladue, with respect to the causes of over-representation among Aboriginal people, Rosenberg, J.A., stated as follows:

13. In R. v. Borde, the Court went on to state that:

14. In addition to recognizing the over-representation of African Canadians as prisoners, this Court has, in cases such as R. v. Parks, recognized the reality of anti-Black racism and its presence in the criminal justice system:

15. More recently, in R. v. Brown, this Court noted that counsel for the appellant Crown, the Attorney General of Ontario, did not challenge the fact that the phenomenon of racial profiling by the police existed and stated that this was a responsible position to take because this conclusion is supported by significant social science research. The Court went on to quote form the Report of the Commission on Systemic Racism in the Ontario Criminal Justice System (Toronto: Queens Printer, 1995), at 358, as follows:

16. Given such findings from this Honourable Court, the reality of anti-Black racism and systemic discrimination in the criminal justice system, is a matter that a sentencing judge can, if she wishes, take judicial notice of. In such a circumstance, the procedure outlined in both Gladue and Wells with respect to sentencing, seems particularly apt. The approach described in Gladue and Wells is one in which the judge takes notice of the relevant social context of the offender before her, including systemic and background factors, and where counsel is expected to make submissions on these points even if raised initially by the judge. This is exactly the process followed by Hill J. in the present cases.

17. For the foregoing reasons, it is a necessary corollary of the Appellant’s procedural grounds of appeal that if Hill J. erred by raising the issue of overrepresentation and related background and systemic factors on his own, that a sentencing judge who initiated a similar inquiry with respect to an Aboriginal offender would also commit an error in law. Clearly, this would frustrate the directives of the Supreme Court of Canada in Gladue.

18. The Appellant's position in this matter not only runs counter to the dictates of the Supreme Court but would prevent sentencing judges from asking of counsel that they do the work that is required of them in making proper and appropriate sentencing submissions.

19. It is also important to note that the procedures used by Hill J. effectively combined the need to take judicial notice of systemic factors in sentencing with the safeguards of the adversarial system. As such, this case can be distinguished from cases in which a judge takes notice of social facts without providing the parties an opportunity to make submissions.

20. The procedure adopted by Hill J. recognized that:

21. The approach taken by Hill J. was consistent with the following statement from Professor Thayer:

22. The restrictive procedural position of the Appellant, if accepted, would handcuff trial judges in the search for the most appropriate sentence in the circumstances. Moreover, it would undermine the Supreme Court’s recognition in Gladue of the important remedial purposes of reducing over-incarceration in Canada for all people.

23. Although Gladue is widely known as a case about the over-incarceration of Aboriginal offenders, it also contains extensive discussion concerning the over-incarceration of all offenders. In examining the scope and content of Parliament’s remedial purpose in enacting s. 718.2(e) of the Criminal Code, the Court in Gladue stated as follows:

24. With respect to the history of Canadian commentary regarding the use and effectiveness of imprisonment as a sanction, the Court in Gladue referred to the following summary by Vancise J.A., dissenting in the Saskatchewan Court of Appeal in R. v. McDonald (1997), 113 C.C.C. (3d) 418 at pp. 429-30:

25. In reviewing the problem of over-incarceration in Canada, the Court in Gladue went on to refer to some of the recommendations of the 1987 report of the Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach, which stated, at pp. xxiii-xxiv:

26. The Court in Gladue also referred to the 1988 Report of the Standing Committee on Justice and Solicitor General, Taking Responsibility, as follows, at p. 75, in part:

27. The Court in Gladue held that "[t]he 1996 sentencing reforms embodied in Part XXIII, and s. 718.2(e) in particular, must be understood as a reaction to the overuse of prison as a sanction, and must accordingly be given appropriate force as remedial provisions." It is clear from the language of s. 718.2(e) and the reasoning of the Supreme Court of Canada that the provision applies to "all offenders" in directing judges "to consider all available sanctions other than imprisonment that are reasonable in the circumstances":

Gladue, supra, para. 36.

28. Although the Court in Gladue recognized that the circumstances of Aboriginal offenders "are unique, and different from those of non-aboriginal offenders", the Court was clear in holding that s. 718.2(e) applies to all offenders. In particular, the Court noted that "background and systemic factors will also be of importance for a judge in sentencing a non-aboriginal offender".

29. The Court in Gladue also examined s. 718 of the Criminal Code which sets out the objectives of sentencing. The Court noted that the section included new sentencing aims which, along with the aim of attempting to rehabilitate or heal the offender, focus upon the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, and promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offenders. The Court stated that the concept of restorative justice which underpins these aims, as a general matter, involves some form of restitution and reintegration into the community and that restorative sentencing goals do not usually correlate with the use of prison as a sanction. It was the Court’s view that Parliament’s choice to include the new sentencing aims evidenced an intention to expand the parameters of the sentencing analysis for all offenders. The Court recognized that the restorative purposes of sentencing also embraced rehabilitation

Gladue, supra, para. 43.

30. The Court ultimately held in Gladue that Part XXIII of the Criminal Code has a remedial purpose for all offenders and is directed at reducing the use of prison as a sanction, and at expanding the use of restorative justice principles in sentencing, for all offenders.

31. While the Court in Gladue did recognize that "one of the unique circumstances of aboriginal offenders is that community-based sanctions coincide with the aboriginal concept of sentencing and the needs of aboriginal people and communities", the Court was nevertheless clear that the aims of restorative justice apply to all offenders:

Gladue, supra, paras. 70, 74.

32. In R. v. Proulx, a case involving a non-Aboriginal person, the Supreme Court of Canada expanded on the place of restorative justice in the sentencing regime of this country:

See also: Gladue, supra, para. 46.

33. ALST, therefore, disagrees with the Appellant’s assertion that the individual circumstances of an offender must be sufficiently similar to those of Aboriginal offenders in order to justify a similar sentencing approach. An offender need not have to point to any particular tradition of restorative justice in her ethnic, religious or cultural life in order to have the court consider restorative justice approaches in sentencing. Rather, the amendments to the Criminal Code make restorative justice concerns an issue that every judge must consider in the sentencing of every offender.

Appellant’s Factum, at pp. 22 – 27.

34. The Appellant asserts that that the sentencing judges "erred in imposing a mitigated sentence in the absence of evidence that systemic factors played a role in the commission of the offence." There are two problems with this contention by the Appellant.

Appellant’s Factum, at p. 29, para. 72.

35. First, the Appellant mischaracterizes the sentences imposed in these cases as "mitigated sentences" solely on the basis that the accused was not imprisoned. As will be discussed below, under "The Principles of Sentencing", a non-incarceral sentence need not, indeed should not, be seen as a mitigated sentence simply because the option of incarceration was not used. As the Supreme Court stated in Gladue:

36. Second, the Appellant suggests that a sentencing judge can only take judicial notice of the role of systemic factors if the offender, herself, offers evidence of her circumstances and the role that systemic factors played in the commission of the offence, in order to support a "causal connection". This narrow approach to the impact of systemic factors on an accused person would, if accepted, render the judicial consideration of such factors irrelevant in most cases, contrary to the directives of the Supreme Court in Gladue.

37. In Gladue, the Supreme Court made clear that the impact of systemic factors on the life of an accused person, and the role such factors may have played in the commission of an offence, were to be considered by the sentencing judge.

38. Regardless of why a person may have committed an offence, one of the significant reasons for considering systemic factors in the sentencing of an offender is in order to construct a relevant and appropriate sentence in the circumstances.

39. Section 718 of the Criminal Code does not establish a hierarchy of sentencing goals. Absent direction from the legislation itself, there is no reason why deterrence and denunciation should be preferred over any other sentencing goal in any particular case.

40. Section 718 of the Criminal Code sets out the principles of sentencing but does not set out the means of accomplishing those principles. It is submitted that making the principles real is the role of the sentencing judge. Thus, while deterrence is one of the principles of sentencing, the means of achieving deterrence through sentencing are not set out in the section. The case law is clear that deterrence can be accomplished through a number of means other than by way of incarceration alone. Sections 718.2(d) and (e) specifically call upon judges to exercise restraint in the use of incarceration but do not suggest that such restraint is at the expense of deterrence.

41. An elevation of deterrence and denunciation among the goals of sentencing, combined with the false assumption that these goals can only be achieved by imprisonment, will aggravate the problem of over-representation in prison.

42. In addition, the principles of deterrence and rehabilitation need not be cast as polar opposites. They are in fact, in many cases, complementary. Indeed, it is often the case that deterrence will not occur without some form of rehabilitation. As the Nova Scotia Court of Appeal stated:

43. Even where an offence can be characterized as serious in nature, a sentencing judge may accord the greatest weight to the concept of restorative justice.

Wells, supra, para. 49.

44. It is submitted that the circumstances, including background and systemic factors, in general, should inform the way trial judges apply the specific purposes and principles of sentencing. Conditions of social and economic dislocation should affect the way judges apply the concepts of retribution, denunciation and specific and general deterrence. Judges should question the assumption of whether separating particular offenders in overcrowded prisons, often lacking treatment programs, will in the long term contribute to respect for law and the maintenance of a just, peaceful and safe society.

45. Concerns about sentencing disparity or achieving proportionate punishment should be addressed by comparing dispositive effects rather than the type of actual sentence imposed and not by mechanically concluding that a sentence fit for one accused would necessarily be fit for another accused. Sentences with rehabilitative conditions may be particularly appropriate for some offenders. Such conditions may encourage the acceptance of responsibility and healing.

46. Section 718.2(e) is not at odds with concerns for the protection of victims or the deterrence of crime. Rehabilitation and treatment are vital if we are truly concerned with public safety. The community may be endangered by the use of unnecessary terms of imprisonment which do not rehabilitate and which may further the stigmatization and alienation of offenders.

47. In order for the provisions of s. 718.2(e) to be given room to develop, trial courts must be encouraged to develop new and innovative sentencing responses. Tying the hands of judges to rigorous adherence to ensuring parity in sentencing in terms of sentence length will defeat the purpose of the sentencing amendments.

R. v. Labelle (2002), 299 A.R. 78 and 266 W.A.C. 78 (C.A.).

48. Studies in Canada, England and the United States have all come to the same conclusion that the notion of general deterrence occurring as a result of the imposition of incarceral sentences alone is ephemeral at best. There is no evidence that Person A’s sentence will have any impact on the conduct of Person B, even if Person B knows about the sentence.

49. If general deterrence occurs at all, it is the risk of detection and apprehension and the certainty of some punishment that plays a larger role as compared to the length of a particular sentence in a specific case.

50. The limitations of general deterrence have also been recognized by this Court:

R. v. Wismayer (1997), 115 C.C.C. (3d) 18 (Ont. C.A.), at 36.

51. Section 718.2(b) directs courts to impose similar sentences not solely on the basis of similar offences, but also with reference to the similarity of offenders and their circumstances. Sentencing should not be reduced to the abstract and mechanical calculation of so called "just deserts" solely on the basis of the crime committed.

52. Conditions can be crafted creatively to achieve a broad range of sentencing objectives, including deterrence and denunciation. A person serving a sentence of imprisonment in the community may send an effective message of society's disapproval of crime and the real restrictions that can be placed on a person short of actual imprisonment. As the Newfoundland Court of Appeal has recognized:

the denunciatory and general deterrent effect of a conditional sentence ought not to be underestimated. Not only may the offender's freedom be severely limited, but his or her continuing presence in the community....is calculated to serve as a daily deterrent to any like-minded person and have real denunciatory consequences.

53. Offenders should not be used as instruments or means in an often futile attempt to deter others. Imprisoning an offender in order to deter others may also run directly counter to other sentencing objectives, including specific deterrence, rehabilitation and restraint, as well as the fundamental principle of proportionality. As this Court has concluded:

general deterrence is not a sufficient justification for refusing to impose a conditional sentence. In view of its extremely negative collateral effects, incarceration should be used with great restraint where the justification is general deterrence. These effects have been repeatedly noted with depressing regularity.

54. Also, the wide scope of conditions which can be tailored under s.742.3 of the Criminal Code "for securing the good conduct of the offender and for preventing a repetition by the offender of the same offence or the commission of other offences" enhances the ability of conditional sentences to contribute to all the purposes of sentencing.

R. v. Horvath (1997), 117 C.C.C. (3d) 110 (Sask. C.A.), at 130.

55. In conclusion, studies have shown that the concept of general deterrence in sentencing is weak at best and likely non-existent. It is submitted that reliance on incarceration to accomplish a goal of sentencing that it cannot properly address will prevent courts from using s. 718.2(e) in the manner in which it was conceived and will ensure that rates of over-representation of Aboriginal persons and members of other disadvantaged groups remain unconscionably high.

56. ALST makes no request as to appropriate orders in the circumstances of these particular appeals.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

Dated at Toronto, this 12^th day of January, 2004.

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Kent Roach

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Brian Eyolfson

Counsel for the Intervener

Aboriginal Legal Services of Toronto Inc.