Kenneth Jackson
APTN National News
OTTAWA – Aboriginal people before the courts may soon find applying Gladue principles more difficult after the Senate on Wednesday passed the Harper government’s Victims Bill of Rights.
Also known as Bill C-32, the new legislation will dilute a section of the Criminal Code that asks judges to exercise restraint in sentencing Aboriginal offenders, said Sen. Serge Joyal.
Joyal tabled an amendment to delete the section in the bill that impacts Gladue principles, but it was defeated by the Conservative Senate majority in the Red Chamber. The legislation will trigger dozens of changes to the Criminal Code, including section 718.2 {e} – commonly referred to as the Gladue section. Those changes will become law 90 days after the bill receives Royal Assent from the Governor General.
The legislation adds 11 words to the pre-existing Gladue section that could have a devastating impact on Aboriginal offenders, according to expert testimony before the MP and Senate committees which studied the bill.
The Criminal Code will now read, with the changes in bold: 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 the circumstances of Aboriginal offenders.
“In my opinion, the bill dilutes the protection afforded to Aboriginal offender,” said Joyal. “This, in my opinion, is a very serious issue.”
Gladue principles gets its name from Jamie Gladue, an Aboriginal woman who appealed her manslaughter sentence to the Supreme Court of Canada in 1999. The case is known as R. v. Gladue.
The high court didn’t change her sentence, instead it issued some ground rules for lower courts to address the critical over-representation of Aboriginal people in the justice system.
From that day onward, courts had to take into account Gladue principles:
(a) the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and
(b) 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.
Several experts testified before Parliamentary and Senate committees about the impacts changes in Bill C-32 to Galdue principles.
“You could still have an emphasis of victim’s rights without potentially throwing a wrench into the works of the Gladue considerations. I don’t know that it’s necessary. I don’t see the benefit. And certainly the downside far outweighs the benefit,” Eric Gottardi, chair of the Canadian Bar Association’s criminal justice section, told Parliament’s justice committee on Nov. 6, 2014. “It’s unpredictable at this point.”
Gottardi’s colleague at the CBA, Kathryn Pentz, told a Senate committee April 1 that the Criminal Code already has a place for victims at sentencing.
“Existing section 718(f) already requires the court to consider the harm done to the victims. While it may seem harmless to repeat this consideration, we would recommend against it. Duplication could cause confusion as to the balancing of the various sentencing principles,” said Pentz.
She said the change would most likely be challenged in court.
Joyal challenged Conservative senators to remove the amendment in a motion Tuesday when the bill reached its final stage in the Senate. He told senators there’s no question the change dilutes the Gladue section. Once he presented his motion to amend the bill, a Conservative Sen. Yonah Martin immediately rose to invoke closure on debate, which stopped opposition senators from tabling any new amendments to the bill.
The matter was then set aside for limited debate Wednesday.
Then the Conservative senators defeated Joyal’s motion and passed the bill without amendment.
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