Canadian Criminal Justice

Critical Thinking Exercise 9.2: Predictability in Sentencing versus Individualized Discretion in Sentencing

Bill C-10, the Safe Communities and Streets Act (2012), was designed, in part, to reduce the discretion of judges in sentencing. In expressing concerns about this legislation, one judge stated that it undermined a longstanding principle of sentencing that had been established by the SCC, most notably that:

There is no such thing as a uniform sentence for a particular crime.… Sentences for a particular offense should be expected to vary to some degree across various communities and regions in this country, as the “just and appropriate” mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred.

1. What is your response to this judge’s comments?

2. What arguments could be offered in support of, and in opposition to, the notion of individualized decision-making?

3. A critic of individualized decision-making might raise the issue as to whether the notion of variability in sentencing, considering “the needs and current conditions of and in a particular community,” might lead to decisions that are discriminatory against certain groups or persons. How would you respond to this criticism?

Chapter 9: Evaluate a Criminal Justice Case

Case: R v. Reid (2016 ONSC 954)
Link: http://www.falconers.ca/wp-content/uploads/2016/06/SCC-re.-regina-v-joel-reid.pdf

In 2016, in the case of R. v. Reid (2016 ONSC 954), an Ontario judge spared a young Black man jail time and imposed a conditional sentence, requiring the man to serve two years under house arrest and attend counseling. The man had been arrested by police for running a dial-a-dope operation and subsequently pled guilty to three counts of trafficking crack cocaine and one count of possession of the proceeds of crime. In sparing the man jail time (the Crown prosecutor had asked for a sentence of one year in jail), the judge cited the case of R. v. Nur (2011 ONSC 4874) which held that anti-Black discrimination played a role in the disproportionate number of Blacks in prison and also noted that, while Blacks comprised 2.9 percent of the Canadian population, they accounted for 9.8 percent of the total prison population. The judge also cited a number of traumatic experiences in the man’s background and the pre-sentence report, which indicated that Mr. Reid had taken a number of positive steps to turn his life around.

In his ruling, the judge stated that “While this court is not in a position to remedy the societal issues, it can and should take the societal context into account in fashioning an appropriate sentence for an individual offender. Under section 742.1 of the Criminal Code, where an offender is not guilty of an offense punishable by a minimum term of imprisonment, where the court imposes a sentence of fewer than two years, and where public safety is not endangered by the offender serving his sentence in the community, a conditional sentence is available.”

Questions:

1.The use of cultural assessments like the one made by the judge, in this case, may become more common in the criminal courts, particularly as the number of blacks in Canadian prisons continues to rise. Do you think that the use of cultural assessments like this has the potential to diminish the responsibility of offenders?

2.Do you think that an offender’s cultural background that experiences with systemic discrimination should be mitigating factors in more serious cases (e.g., murder, aggravated sexual assault?)? Why? Why not?

Critical Thinking Exercise 9.3: A Critique of Gladue

Following are excerpts from an editorial about the Gladue principle that appeared in the Toronto Sun newspaper:

The courts must consider as mitigating factors the effects of colonialism, residential schools, displacement, and other historical wrongdoings, including what impact those may have had on aboriginal offenders.

There are no similar provisions for non-aboriginal offenders, including those who may have come from war-torn countries or suffered directly or indirectly from human atrocities such as the Holocaust or Cambodia’s Khmer Rouge mass-killings of the 1970s.

No, the sentencing provisions are based on the race of the offender only. Which is racism. And in a free, just and democratic country like Canada, it’s appalling we have these kinds of laws on the books.

Instead of creating racist laws, Parliament should address some of the root causes of why so many aboriginals are in jail—like the effects of another racist law, the Indian Act, and the continued segregation of aboriginal people. How about the squalid and inhumane conditions of many reserves in Canada?

1.How would you respond to this editorial? (Before you answer this question, watch the CBC POV documentary “Indictment: The Crimes of Shelley Chartier.” Does Shelley’s case impact your response in any way?

Chapter 11: Evaluate a Criminal Justice Case

Case: British Columbia Civil Liberties Association v. Canada (Attorney General) (2018 BCSC 26)
Link: https://www.canlii.org/en/bc/bcsc/doc/2018/2018bcsc62/2018bcsc62.html

In this case, the British Columbia Civil Liberties Association argued that the use of indefinite solitary confinement violates the Canadian Charter of Rights and Freedoms and thus it should no longer be used in correctional facilities. The British Columbia Supreme Court declared that the sections of the Corrections and Conditional Release Act (“CCRA”) that allow for indefinite solitary confinement (referred to as “administrative segregation” in the legislation) are of no force or effect.

The Court held that the laws violate s. 7 of the Charter of Rights and Freedoms in that they permit prolonged, indefinite solitary confinement, fail to provide an independent review of segregation placements, and deprive prisoners of the right to counsel at segregation review hearings. The Court further held that the laws violate s. 15 of the Charter to the extent that the laws authorize any period of administrative segregation for the mentally ill or disabled, and to the degree that the regime discriminates against Indigenous prisoners.

The Court determined that the laws allowing for solitary confinement were overbroad because prolonged segregation not only harms prisoners, it ultimately undermines institutional security. The Court further concluded that the laws authorize solitary confinement in circumstances where some lesser form of restriction would achieve the legislative objective of security of the institution. Additionally, The BC court held that segregation placements must be reviewed independently by a decision-maker who is not an employee of the Correctional Service, and who has the authority to release prisoners from segregation. The Court also found that prisoners are constitutionally entitled to have a lawyer at segregation review hearings.

In considering the equality protections of s. 15 of the Charter, the Court held that the laws permitting solitary confinement fail to respond to the needs of Indigenous prisoners and those prisoners with mental illness or disability. Lastly, the Court concluded that a constitutional scheme of prisoner segregation must include time limits. The Court described a 15-day time limit as a “generous” though “defensible” standard.

Questions:

1.Given what is known about the negative effects of solitary confinement, do you believe that the BC Court of Appeal decision will eliminate these issues in the future?

2.The BCCA stated that a 15-day limit for solitary confinement was acceptable. Do you agree with their decision in this regard? If not, what would you set as an acceptable limit?

Chapter 12: Evaluate a Criminal Justice Case

Case: The Death of Louise Pargeter
Link: http://www.csc-scc.gc.ca/publications/ci-report05-06/ex_summary_06-03-09-eng.shtml

On October 6, 2004, CSC parole officer Louise Pargeter went to the home of Eli Ulayuk, one of the parolees she supervised. She failed to return to her office as scheduled, and her co-workers were unable to locate her. The following day, the RCMP made a gruesome discovery: They found her body at Ulayuk’s apartment. During the trial, the court learned that Ulayuk had wanted to kill Pargeter since 2001 when she revoked his day parole. The court heard that Ulayuk had struck Pargeter with a hammer five times, strangled her with twine, and had sex with her body. In February 2006, Ulayuk was found guilty of second-degree murder and sentenced to life in prison, with the recommendation that he be ineligible for parole for 25 years. A CSC inquiry into the incident identified a number of factors that may have led to Pargeter’s death.40 Earlier, Ulayuk had been convicted of the murder of a woman in his home community of Igloolik, Nunavut, and had been diagnosed as a necrophiliac, a form of sexual deviance. The sentencing judge, in that case, commented that Ulayuk was one of the most dangerous offenders ever to have come before the court. The Board of Investigation (BOI) found that while Ulayuk was in confinement, the CSC had not completed sufficient clinical assessments of him, nor had sufficient attention been given to his sexual deviancy in the treatment plan. The BOI also stated that there had not been sufficient analysis of Ulayuk’s case file prior to his release; it then made numerous recommendations with respect to the CSC’s information-gathering process, case preparation for PBC hearings, and the supervision of offenders in the community.

Questions:

1.What issues do the death of Louise Pargeter highlight regarding parole officer safety and the decision-making of the parole board of Canada? Describe the changes made by CSC in the wake of Pargeter’s death. This may require some outside research.

2.Given that parole officers may be in contact with violent offenders and offenders with extensive criminal histories, do you believe that parole officers should be armed and given more rigorous use of force training?

3.Should parole officers are accompanied by police officers when visiting high-risk offenders? Should assisting parole officers be a police responsibility? Think about this in the context of the movement to narrow the scope of police. For information on Canadian Criminal Justice check on this: https://en.wikipedia.org/wiki/Canadian_Criminal_Justice

 

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