________________________________________________________________________________

Jamie Tanis Gladue   Appellant

v.

Her Majesty The Queen   Respondent

and

The Attorney General of Canada, the Attorney 
General for Alberta and Aboriginal Legal 
Services of Toronto Inc.   Interveners

Indexed as:  R. v. Gladue

File No.:  26300.

1998:  December 10; 1999:  April 23.

Present:  Lamer C.J. and L'Heureux-Dubé, Gonthier, Cory, Iacobucci, Bastarache
and Binnie JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

   Criminal law -- Sentencing -- Aboriginal offenders -- Accused sentenced to
three years' imprisonment after pleading guilty to manslaughter -- No special
consideration given by sentencing judge to accused's aboriginal background --
Principles governing application of s. 718.2(e) of Criminal Code -- Class of
aboriginal people coming within scope of provision -- Criminal Code, R.S.C.,
1985, c. C-46, s. 718.2(e).

   The accused, an aboriginal woman, pled guilty to manslaughter for the killing
of her common law husband and was sentenced to three years' imprisonment.  On
the night of the incident, the accused was celebrating her 19th birthday and
drank beer with some friends and family members, including the victim.  She
suspected the victim was having an affair with her older sister and, when her
sister left the party, followed by the victim, the accused told her friend,
"He's going to get it.  He's really going to get it this time".  She later found
the victim and her sister coming down the stairs together in her sister's home. 
She believed that they had been engaged in sexual activity.  When the accused
and the victim returned to their townhouse, they started to quarrel.  During the
argument, the accused confronted the victim with his infidelity and he told her
that she was fat and ugly and not as good as the others.  A few minutes later,
the victim fled their home.  The accused ran toward him with a large knife and
stabbed him in the chest. When returning to her home, she was heard saying "I
got you, you fucking bastard". There was also evidence indicating that she had
stabbed the victim on the arm before he left the townhouse.  At the time of the
stabbing, the accused had a blood-alcohol content of between 155 and 165
milligrams of alcohol in 100 millilitres of blood.

   At the sentencing hearing, the judge took into account several mitigating
factors.  The accused was a young mother and, apart from an impaired driving
conviction, she had no criminal record.  Her family was supportive and, while on
bail, she had attended alcohol abuse counselling and upgraded her education. 
The accused was provoked by the victim's insulting behaviour and remarks.  At
the time of the offence, the accused had a hyperthyroid condition which caused
her to overreact to emotional situations.  She showed some signs of remorse and
entered a plea of guilty. The sentencing judge also identified several
aggravating circumstances.  The accused stabbed the deceased twice, the second
time after he had fled in an attempt to escape. From the remarks she made before
and after the stabbing it was clear that the accused intended to harm the
victim.  Further, she was not afraid of the victim; she was the aggressor. The
judge considered that the principles of denunciation and general deterrence must
play a role in the present circumstances even though specific deterrence was not
required.  He also indicated that the sentence should take into account the need
to rehabilitate the accused.  The judge decided that a suspended sentence or a
conditional sentence of imprisonment was not appropriate in this case. He noted
that there were no special circumstances arising from the aboriginal status of
the accused and the victim that he should take into consideration.  Both were
living in an urban area off-reserve and not "within the aboriginal community as
such".  The sentencing judge concluded that the offence was a very serious one,
for which the appropriate sentence was three years' imprisonment.  The majority
of the Court of Appeal dismissed the accused's appeal of her sentence.

   Held:  The appeal should be dismissed.

   The considerations which should be taken into account by a judge sentencing
an aboriginal offender have been summarized at para. 93 of the reasons for
judgment. The following is a reflection of that summary.

   Part XXIII of the Criminal Code codifies the fundamental purpose and
principles of sentencing and the factors that should be considered by a judge in
striving to determine a sentence that is fit for the offender and the offence. 
In that Part, s. 718.2(e) mandatorily requires sentencing judges to consider all
available sanctions other than imprisonment and to pay particular attention to
the circumstances of aboriginal offenders. The provision is not simply a
codification of existing jurisprudence.  It is remedial in nature and is
designed to ameliorate the serious problem of overrepresentation of aboriginal
people in prisons, and to encourage sentencing judges to have recourse to a
restorative approach to sentencing. There is a judicial duty to give the
provision's remedial purpose real force.  Section 718.2(e) must be read in the
context of the rest of the factors referred to in that section and in light of
all of Part XXIII.  In determining a fit sentence, all principles and factors
set out in that Part must be taken into consideration.  Attention should be paid
to the fact that Part XXIII, through certain provisions,  has placed a new
emphasis upon decreasing the use of incarceration.

   Sentencing is an individual process and in each case the consideration must
continue to be what is a fit sentence for this accused for this offence in this
community. The effect of s. 718.2(e), however, is to alter the method of
analysis which sentencing judges must use in determining a fit sentence for
aboriginal offenders.  Section 718.2(e) directs judges to undertake the
sentencing of such offenders individually, but also differently, because the
circumstances of aboriginal people are unique.  In sentencing an aboriginal
offender, the judge must consider:  (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.  In order to
undertake these considerations the sentencing judge will require information
pertaining to the accused.  Judges may take judicial notice of the broad
systemic and background factors affecting aboriginal people, and of the priority
given in aboriginal cultures to a restorative approach to sentencing. In the
usual course of events, additional case-specific information will come from
counsel and from a pre-sentence report which takes into account the systemic or
background factors and the appropriate sentencing procedures and sanctions,
which in turn may come from representations of the relevant aboriginal
community.  The offender may waive the gathering of that information. The
absence of alternative sentencing programs specific to an aboriginal community
does not eliminate the ability of a sentencing judge to impose a sanction that
takes into account principles of restorative justice and the needs of the
parties involved.

   If there is no alternative to incarceration the length of the term must be
carefully considered.  The jail term for an aboriginal offender may in some
circumstances be less than the term imposed on a non-aboriginal offender for the
same offence. However,  s. 718.2(e) is not to be taken as a means of
automatically reducing the prison sentence of aboriginal offenders; nor should
it be assumed that an offender is receiving a more lenient sentence simply
because incarceration is not imposed.  It is also unreasonable to assume that
aboriginal peoples do not believe in the importance of traditional sentencing
goals such as deterrence, denunciation, and separation, where warranted.  In
this context, generally, the more serious and violent the crime, the more likely
it will be as a practical matter that the terms of imprisonment will be the same
for similar offences and offenders, whether the offender is aboriginal or
non-aboriginal.

   Section 718.2(e) applies to all aboriginal persons wherever they reside,
whether on- or off-reserve, in a large city or a rural area.  In defining the
relevant aboriginal community for the purpose of achieving an effective
sentence, the term "community" must be defined broadly so as to include any
network of support and interaction that might be available, including one in an
urban centre.  At the same time, the residence of the aboriginal offender in an
urban centre that lacks any network of support does not relieve the sentencing
judge of the obligation to try to find an alternative to imprisonment.

   In this case, the sentencing judge  may have erred in limiting the
application of s. 718.2(e) to the circumstances of aboriginal offenders living
in rural areas or on-reserve. Moreover, he does not appear to have considered
the systemic or background factors which may have influenced the accused to
engage in criminal conduct, or the possibly distinct conception of sentencing
held by the accused, by the victim's family, and by their community.  The
majority of the Court of Appeal, in dismissing the accused's appeal, also does
not appear to have considered many of the relevant factors. Although  in most
cases such errors would be sufficient to justify sending the matter back for a
new sentencing hearing, in these circumstances it would not be in the interests
of justice to order a new hearing in order to canvass the accused's
circumstances as an aboriginal offender.  Both the sentencing judge and all
members of the Court of Appeal acknowledged that the offence was a particularly
serious one.  For that offence by this offender a sentence of three years'
imprisonment was not unreasonable. More importantly, the accused was granted, 
subject to certain conditions,  day parole after she had served six months in a
correctional centre and, about a year ago, was granted full parole with the same
conditions.  The results of the sentence with incarceration for six months and
the subsequent controlled release were in the interests of both the accused and
society.

Cases Cited

   Referred to:  Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; R. v.
Chartrand, [1994] 2 S.C.R. 864; R. v. McDonald (1997), 113 C.C.C. (3d) 418; R.
v. J. (C.) (1997), 119 C.C.C. (3d) 444; R. v. Wells (1998), 125 C.C.C. (3d) 129;
R. v. Hunter (1998), 125 C.C.C. (3d) 121; R. v. Young (1998), 131 Man. R. (2d)
61; R. v. Fireman (1971), 4 C.C.C. (2d) 82; R. v. Williams, [1998] 1 S.C.R.
1128; R. v. M. (C.A.), [1996] 1 S.C.R. 500.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 15, 25.

Constitution Act, 1982, s. 35.

Criminal Code, R.S.C., 1985, c. C-46, Part XXIII [repl. 1995, c. 22, s. 6],
ss. 718, 718.1, 718.2 [am. 1997, c. 23, s. 17], 742.1 [am. 1997, c. 18, s. 107].

Interpretation Act, R.S.C., 1985, c. I-21, s. 12.

Authors Cited

Canada.  Canadian Sentencing Commission.  Sentencing Reform:  A Canadian
Approach.  Ottawa:  The Commission, February 1987.

Canada.  Debates of the Senate, vol. 135, No. 99, 1st Sess., 35th Parl., June
21, 1995, p. 1871.

Canada.  Federal/Provincial/Territorial Ministers Responsible for Justice. 
Corrections Population Growth: First Report on Progress.  Fredericton:
Federal/Provincial/Territorial Ministers Responsible for Justice, February 1997.

Canada.  House of Commons Debates, vol. IV, 1st Sess., 35th Parl., September 20,
1994, pp. 5871, 5873.

Canada.  House of Commons Debates, vol. V, 1st Sess., 35th Parl., September 22,
1994, p. 6028.

Canada.  House of Commons.  Standing Committee on Justice and Legal Affairs.
Minutes of Proceedings and Evidence, Issue No. 62, November 17, 1994, p. 62:15.

Canada.  House of Commons. Standing Committee on Justice and Solicitor General.
Report of the Standing Committee on Justice and Solicitor General on its Review
of Sentencing, Conditional Release and Related Aspects of Corrections. Taking
Responsibility, August 1988.

Canada.  Law Reform Commission of Canada.  Working Paper 11.  Imprisonment and
Release.  Ottawa:  The Commission, 1975.

Canada.  Royal Commission on Aboriginal Peoples.  Report of the Royal Commission
on Aboriginal Peoples, vol. 4, Perspectives and Realities.  Ottawa:  The
Commission, 1996.

Canada.  Royal Commission on Aboriginal Peoples.  Bridging the Cultural Divide: 
A Report on Aboriginal People and Criminal Justice in Canada.  Ottawa:  The
Commission, 1996.

Canada.  Solicitor General. Consolidated Report.  Towards a Just, Peaceful and
Safe Society:  The Corrections and Conditional Release Act -- Five Years Later.
Ottawa: Solicitor General, 1998.

Canada.  Statistics Canada.  Canadian Centre for Justice Statistics.  Adult
Correctional Services in Canada, 1995-96.  Ottawa:  The Centre, March 1997.

Canada.  Statistics Canada.  Infomat:  A Weekly Review, February 27, 1998. 
"Prison population and costs", p. 5.

Canadian Corrections Association.  Indians and the Law.  Ottawa:  Queen's
Printer, 1967.

Driedger, Elmer A.  Construction of Statutes, 2nd ed.  Toronto:  Butterworths,
1983.

Driedger on the Construction of Statutes, 3rd ed. by Ruth Sullivan.  Toronto:
Butterworths, 1994.

Jackson, Michael.  "In Search of the Pathways to Justice:  Alternative Dispute
Resolution in Aboriginal Communities", [1992] U.B.C. L. Rev. (Special Edition)
147.

Jackson, Michael.  "Locking Up Natives in Canada" (1988-89), 23 U.B.C. L. Rev.
215.

Kwochka, Daniel.  "Aboriginal Injustice:  Making Room for a Restorative
Paradigm" (1996), 60 Sask. L. Rev. 153.

Manitoba.  Public Inquiry into the Administration of Justice and Aboriginal
People. Report of the Aboriginal Justice Inquiry of Manitoba, vol. 1,  The
Justice System and Aboriginal People.  Winnipeg:  Public Inquiry into the
Administration of Justice and Aboriginal People, 1991.

Quigley, Tim.  "Some Issues in Sentencing of Aboriginal Offenders".  In
Continuing Poundmaker and Riel's Quest:  Presentations Made at a Conference on
Aboriginal Peoples and Justice.  Compiled by Richard Gosse, James Youngblood
Henderson and Roger Carter.  Saskatoon:  Purich Publishing, 1994.

Schmeiser, Douglas A.  The Native Offender and the Law, prepared for the Law
Reform Commission of Canada.  Ottawa:  The Commission, 1974.

United States.  Department of Justice.  Office of Justice Programs.  Bureau of
Justice Statistics.  Bulletin. Prison and Jail Inmates at Midyear 1998, by
Darrell K. Gilliard, March 1999.

United States.  The Sentencing Project.  Americans Behind Bars: U.S. and
International Use of Incarceration, 1995, by Marc Mauer.  Washington:  The
Sentencing Project, June 1997.

   APPEAL from a judgment of the British Columbia Court of Appeal (1997), 98
B.C.A.C. 120, 161 W.A.C. 120, 119 C.C.C. (3d) 481, 11 C.R. (5th) 108, [1997]
B.C.J. No. 2333 (QL), affirming a judgment of Hutchinson J. sentencing the
accused to three years' imprisonment.  Appeal dismissed.

   Gil D. McKinnon, Q.C., and Michael D. Smith, for the appellant.

   Wendy L. Rubin, for the respondent.

   Kimberly Prost and Nancy L. Irving, for the intervener the Attorney General
of Canada.

   Goran Tomljanovic, for the intervener the Attorney General for Alberta.

   Kent Roach and Kimberly R. Murray, for the intervener Aboriginal Legal
Services of Toronto Inc.

   The judgment of the Court was delivered by

   //Cory and Iacobucci JJ.//

1   CORY AND IACOBUCCI JJ.-- On September 3, 1996, the new Part XXIII of the
Criminal Code, R.S.C., 1985, c. C-46, pertaining to sentencing came into force. 
These provisions codify for the first time the fundamental purpose and
principles of sentencing. This appeal is particularly concerned with the new
s. 718.2(e).  It provides that 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.  This
appeal must consider how this provision should be interpreted and applied.

   I.  Factual Background

2   The appellant, one of nine children, was born in McLennan, Alberta in 1976.
Her mother, Marie Gladue, who was a Cree, left the family home in 1987 and died
in a car accident in 1990.  After 1987, the appellant and her siblings were
raised by their father, Lloyd Chalifoux, a Metis.  The appellant and the victim
Reuben Beaver started to live together in 1993, when the appellant was 17 years
old.  Thereafter they had a daughter, Tanita.  In August 1995, they moved to
Nanaimo.  Together with the appellant's father and two of her siblings, Tara and
Bianca Chalifoux, they lived in a townhouse complex.  By September 1995, the
appellant and Beaver were engaged to be married, and the appellant was five
months pregnant with their second child, a boy, whom the appellant subsequently
named Reuben Ambrose Beaver in honour of his father.

3   In the early evening of September 16, 1995, the appellant was celebrating
her 19th birthday.  She and Reuben Beaver, who was then 20, were drinking beer
with some friends and family members in the townhouse complex.  The appellant
suspected that Beaver was having an affair with her older sister, Tara.  During
the course of the evening she voiced those suspicions to her friends.  The
appellant was obviously angry with Beaver.  She said, "the next time he fools
around on me, I'll kill him". The appellant told one of her friends that she
wanted to test Beaver, and asked her friend to "hit on Reuben to see if he would
go with her", but the friend refused.

4   The appellant's sister Tara left the party, followed by Beaver.  After he
had left, the appellant told her friend, "He's going to get it.  He's really
going to get it this time."  The appellant, on several occasions, tried to find
Beaver and her sister.  She eventually located them coming down the stairs
together in her sister's suite.  The appellant suspected that they had been
engaged in sexual activity and confronted her sister, saying, "You're going to
get it.  How could you do this to me?"

5   The appellant and Beaver returned separately to their townhouse and they
started to quarrel.  During the argument, the appellant confronted him with his
infidelity and he told her that she was fat and ugly and not as good as the
others.  A neighbour, Mr. Gretchin, who lived next door was awakened by some
banging and shouting and a female voice saying "I'm sick and tired of you
fooling around with other women."  The disturbance was becoming very loud and he
decided to ask his neighbours to calm down. He heard the front door of the
appellant's residence slam.  As he opened his own front door, he saw the
appellant come running out of her suite.  He also saw Reuben Beaver banging with
both hands at Tara Chalifoux's door down the hall saying, "Let me in.  Let me
in."

6   Mr. Gretchin saw the appellant run toward Beaver with a large knife in her
hand and, as she approached him, she told him that he had better run.  Mr.
Gretchin heard Beaver shriek in pain and saw him collapse in a pool of blood. 
The appellant had stabbed Beaver once in the left chest, and the knife had
penetrated his heart.  As the appellant went by on her return to her apartment,
Mr. Gretchin heard her say, "I got you, you fucking bastard."  The appellant was
described as jumping up and down as if she had tagged someone.  Mr. Gretchin
said she did not appear to realize what she had done.  At the time of the
stabbing, the appellant had a blood-alcohol content of between 155 and 165
milligrams of alcohol in 100 millilitres of blood.

7   On June 3, 1996, the appellant was charged with second degree murder.  On
February 11, 1997, following a preliminary hearing and after a jury had been
selected, the appellant entered a plea of guilty to manslaughter.

8   There was evidence which indicated that the appellant had stabbed Beaver
before he fled from the apartment.  A paring knife found on the living room
floor of their apartment had a small amount of Beaver's blood on it, and a small
stab wound was located on Beaver's right upper arm.

9   There was also evidence that Beaver had subjected the appellant to some
physical abuse in June 1994, while the appellant was pregnant with their
daughter Tanita. Beaver was convicted of assault, and was given a 15-day
intermittent sentence with one year's probation.  The neighbour, Mr. Gretchin,
told police that the noises emanating from the appellant's and Beaver's
apartment suggested a fight, stating: "It sounded like someone got hit and
furniture was sliding, like someone pushed around" and "The fight lasted five to
ten minutes, it was like a wrestling match."  Bruises later observed on the
appellant's arm and in the collarbone area were consistent with her having been
in a physical altercation on the night of the stabbing.  However, the trial
judge found that the facts as presented before him did not warrant a finding
that the appellant was a "battered or fearful wife".

10   The appellant's sentencing took place 17 months after the stabbing. 
Pending her trial, she was released on bail and lived with her father.  She took
counselling for alcohol and drug abuse at Tillicum Haus Native Friendship Centre
in Nanaimo, and completed Grade 10 and was about to start Grade 11.  After the
stabbing, the appellant was diagnosed as suffering from a hyperthyroid
condition, which was said to produce an exaggerated reaction to any emotional
situation.  The appellant underwent radiation therapy to destroy some of her
thyroid glands, and at the time of sentencing she was taking thyroid supplements
which regulated her condition.  During the time she was on bail, the appellant
pled guilty to having breached her bail on one occasion by consuming alcohol.

11   At the sentencing hearing, when asked if she had anything to say, the
appellant stated that she was sorry about what happened, that she did not intend
to do it, and that she was sorry to Beaver's family.

12   In his submissions on sentence at trial, the appellant's counsel did not
raise the fact that the appellant was an aboriginal offender but, when asked by
the trial judge whether in fact the appellant was an aboriginal person, replied
that she was Cree.  When asked by the trial judge whether the town of McLennan,
Alberta, where the appellant grew up, was an aboriginal community, defence
counsel responded: "it's just a regular community".  No other submissions were
made at the sentencing hearing on the issue of the appellant's aboriginal
heritage. Defence counsel requested a suspended sentence or a conditional
sentence of imprisonment.  Crown counsel argued in favour of a sentence of
between three and five years' imprisonment.

13   The appellant was sentenced to three years' imprisonment and to a ten-year
weapons prohibition.  Her appeal of the sentence to the British Columbia Court
of Appeal was dismissed.

   II.  Relevant Statutory Provisions

14   It may be helpful at this stage to set out ss. 718, 718.1 and 718.2 of the
Criminal Code as well as s. 12 of the Interpretation Act, R.S.C., 1985, c. I-21.

   Criminal Code

   Purpose and Principles of Sentencing

   718.  [Purpose]  The fundamental purpose of sentencing is to contribute,
along with crime prevention initiatives, to respect for the law and the
maintenance of a just, peaceful and safe society by imposing just sanctions that
have one or more of the following objectives:

   (a)   to denounce unlawful conduct;

   (b)   to deter the offender and other persons from committing offences;

   (c)   to separate offenders from society, where necessary;

   (d)   to assist in rehabilitating offenders;

   (e)  to provide reparations for harm done to victims or to the community; and

   (f)  to promote a sense of responsibility in offenders, and acknowledgment of
the harm done to victims and to the community.

   718.1   [Fundamental principle]  A sentence must be proportionate to the
gravity of the offence and the degree of responsibility of the offender.

   718.2  [Other sentencing principles]  A court that imposes a sentence shall
also take into consideration the following principles:

   (a)a sentence should be increased or reduced to account for any relevant
aggravating or mitigating circumstances relating to the offence or the offender,
and, without limiting the generality of the foregoing,

   (i)evidence that the offence was motivated by bias, prejudice or hate based
on race, national or ethnic origin, language, colour, religion, sex, age, mental
or physical disability, sexual orientation or any other similar factor,

   (ii)evidence that the offender, in committing the offence, abused the
offender's spouse or child,

   (iii)evidence that the offender, in committing the offence, abused a position
of trust or authority in relation to the victim, or

   (iv)evidence that the offence was committed for the benefit of, at the
direction of or in association with a criminal organization

   shall be deemed to be aggravating circumstances;

   (b)  a sentence should be similar to sentences imposed on similar offenders
for similar offences committed in similar circumstances;

   (c)    where consecutive sentences are imposed, the combined sentence should
not be unduly long or harsh;

   (d)   an offender should not be deprived of liberty, if less restrictive
sanctions may be appropriate in the circumstances; and

   (e)   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.

   Interpretation Act

   12.  Every enactment is deemed remedial, and shall be given such fair, large
and liberal construction and interpretation as best ensures the attainment of
its objects.

   III.  Judicial History

   A.  Supreme Court of British Columbia

15   In his reasons, the trial judge took into account several mitigating
factors. The appellant was only 20 years old at the time of sentence, and apart
from an impaired driving conviction, she had no criminal record.  She had two
children and was expecting a third although he considered her pregnancy a
neutral factor.  Her family was supportive and she was attending alcohol abuse
counselling and upgrading her education.  The appellant was provoked by the
deceased's insulting behaviour and remarks.  At the time of the offence, the
appellant had a hyperthyroid condition which caused her to overreact to
emotional situations.  The appellant showed some signs of remorse and entered a
plea of guilty.

16   On the other hand, the trial judge identified several aggravating
circumstances.  The appellant stabbed the deceased twice, the second time after
he had fled in an attempt to escape.  Also, the offence was of particular
gravity.  From the remarks she made before and after the stabbing it was very
clear that the appellant intended to harm the deceased.  Further, the appellant
was not afraid of the deceased; indeed, she was the aggressor.

17   The trial judge considered that specific deterrence was not required in the
circumstances of this case.  However, in his opinion the principles of
denunciation and general deterrence must play a role.  He was of the view that
the sentence should also take into account the need to rehabilitate the
appellant and give her some insight both into her conduct and the effect of her
propensity to drink.  The trial judge decided that in this case it was not
appropriate to suspend the passing of sentence or to impose a conditional
sentence.

18   The trial judge noted that both the appellant and the deceased were
aboriginal, but stated that they were living in an urban area off-reserve and
not "within the aboriginal community as such".  He found that there were not any
special circumstances arising from their aboriginal status that he should take
into consideration. He stated that the offence was a very serious one, for which
the appropriate sentence was three years' imprisonment with a ten-year weapons
prohibition.

   B.  Court of Appeal for British Columbia (1997), 98 B.C.A.C. 120

19   The appellant appealed her sentence of three years' imprisonment, but not
the ten-year weapons prohibition.  She appealed on four grounds, only one of
which is directly relevant, namely whether the trial judge failed to give
appropriate consideration to the appellant's circumstances as an aboriginal
offender.  The appellant also sought to adduce fresh evidence at her appeal
regarding her efforts since the killing to maintain links with her aboriginal
heritage.  The fresh evidence showed that the appellant had applied to become a
full status Cree, and that she had obtained that status for her daughter Tanita.
 She had also maintained contact with Beaver's mother, who is a status Cree, and
who was in turn assisting the appellant with the status applications.

20   The Court of Appeal unanimously concluded that the trial judge had erred in
concluding that s. 718.2(e) did not apply because the appellant was not living
on a reserve.  However, Esson J.A. (Prowse J.A. concurring) found no error in
the trial judge's conclusion that, in this case, there was no basis for giving
special consideration to the appellant's aboriginal background.  Esson J.A.
noted that the appellant's actions involved deliberation, motivation, and "an
element of viciousness and persistence in the attack", and that the killing
constituted a "near murder" (p. 138).  He found that, on the facts presented in
this case, it could not be said that the sentence, if a fit one for a
non-aboriginal person, would not also be fit for an aboriginal person.  Esson
J.A. concluded therefore that the trial judge did not err in not giving effect
to the principle set out in s. 718.2(e) of the Criminal Code and dismissed the
appeal.  Although it is not entirely clear from the reasons of Esson J.A., he
appears also to have dismissed the appellant's application to adduce fresh
evidence regarding her efforts to maintain links with her aboriginal heritage.

21   Rowles J.A. (dissenting) reviewed many reports and parliamentary debates
and determined that the mischief that s. 718.2(e) was designed to remedy was the
excessive use of incarceration generally, and the disproportionately high number
of aboriginal people who are imprisoned, in particular.  She stated that
s. 718.2(e) invites recognition and amelioration of the impact which systemic
discrimination in the criminal justice system has upon aboriginal people.  She
referred to the importance of acknowledging and implementing the different
conceptions of criminal justice and of appropriate criminal sanctions held by
many aboriginal peoples, including, in particular, the conception of criminal
justice as involving a strong restorative element.

22   In this case, Rowles J.A. agreed that the crime committed by the appellant
was serious.  The circumstances surrounding the offence were tragic for
everyone, including the appellant's children.  Yet, the circumstances of the
offence included provocation, superimposed on an undiagnosed medical problem
affecting the appellant's emotional stability.  The offender was young and
emotionally immature.  She had an alcohol problem but no history of other
criminal conduct or acts of violence.  The success the appellant enjoyed while
on bail awaiting trial showed that she was likely to be a good candidate for
further rehabilitation.  Rowles J.A. also referred favourably to the fresh
evidence which showed that the appellant was taking steps to maintain links with
her aboriginal heritage.

23   Rowles J.A. concluded that a sentence of three years' imprisonment was
excessive.  The principles of general deterrence and denunciation had to be
reflected in the sentence, but the sentence could have been designed to advance
the appellant's rehabilitation through a period of supervised probation.  Rowles
J.A. would have allowed the appeal and reduced the sentence to two years less a
day to be followed by a three-year period of probation.

   IV.  Issue

24   The issue in this appeal is the proper interpretation and application to be
given to s. 718.2(e) of the Criminal Code.  The provision reads as follows:

   718.2  A court that imposes a sentence shall also take into consideration the
following principles:

   . . .

   (e)  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 question to be resolved is whether the majority of the British Columbia
Court of Appeal erred in finding that, in the circumstances of this case, the
trial judge correctly applied s. 718.2(e) in imposing a sentence of three years'
imprisonment.  To answer this question, it will be necessary to determine the
legislative purpose of s. 718.2(e), and, in particular, the words "with
particular attention to the circumstances of aboriginal offenders".  The appeal
requires this Court to begin the process of articulating the rules and
principles that should govern the practical application of s. 718.2(e) of the
Criminal Code by a trial judge.

   V.  Analysis

   A.  Introduction

25   As this Court has frequently stated, the proper construction of a statutory
provision flows from reading the words of the provision in their grammatical and
ordinary sense and in their entire context, harmoniously with the scheme of the
statute as a whole, the purpose of the statute, and the intention of Parliament.
 The purpose of the statute and the intention of Parliament, in particular, are
to be determined on the basis of intrinsic and admissible extrinsic sources
regarding the Act's legislative history and the context of its enactment: Rizzo
& Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at paras. 20-23; R. v. Chartrand,
[1994] 2 S.C.R. 864, at p. 875; E. A. Driedger, Construction of Statutes (2nd
ed. 1983), at p. 87; Driedger on the Construction of Statutes (3rd ed. 1994), by
R. Sullivan, at p. 131.

26   Also of importance in interpreting federal legislation is s. 12 of the
federal Interpretation Act, which provides:

   12.  Every enactment is deemed remedial, and shall be given such fair, large
and liberal construction and interpretation as best ensures the attainment of
its objects.

27   Section 718.2(e) has already received judicial consideration in several
provincial appellate court decisions:  see, e.g., R. v. McDonald (1997), 113
C.C.C. (3d) 418 (Sask. C.A.); R. v. J. (C.) (1997), 119 C.C.C. (3d) 444 (Nfld.
C.A.); R. v. Wells (1998), 125 C.C.C. (3d) 129 (Alta. C.A.); R. v. Hunter
(1998), 125 C.C.C. (3d) 121 (Alta. C.A.); R. v. Young (1998), 131 Man. R. (2d)
61 (C.A.).  This is the first occasion on which this Court has had the
opportunity to construe and apply the provision.

28   With this introduction, we now wish to discuss the wording of s. 718.2(e)
and the scheme of Part XXIII of the Criminal Code, as well as the legislative
history and the context behind s. 718.2(e), with the aim of determining and
describing the circumstances of aboriginal offenders.  This discussion is
followed by a framework for the sentencing judge to use in sentencing an
aboriginal offender.  The reasons then deal with the specific facts and sentence
in this case.

   B.  The Wording of Section 718.2(e) and the Scheme of Part XXIII

29   The interpretation of s. 718.2(e) must begin by considering its words in
context.  Although this appeal is ultimately concerned only with the meaning of
the phrase "with particular attention to the circumstances of aboriginal
offenders", that phrase takes on meaning from the other words of s. 718.2(e),
from the purpose and principles of sentencing set out in ss. 718-718.2, and from
the overall scheme of Part XXIII.

30   The respondent observed that some caution is in order in construing
s. 718.2(e), insofar as it would be inappropriate to prejudge the many other
important issues which may be raised by the reforms but which are not
specifically at issue here. However, it would be equally inappropriate to
construe s. 718.2(e) in a vacuum, without considering the surrounding text which
gives the provision its depth of meaning.  To the extent that the broader scheme
of Part XXIII informs the proper construction to be given to s. 718.2(e), it
will be necessary to draw at least some general conclusions about the new
sentencing regime.

31   A core issue in this appeal is whether s. 718.2(e) should be understood as
being remedial in nature, or whether s. 718.2(e), along with the other
provisions of ss. 718 through 718.2, are simply a codification of existing
sentencing principles.  The respondent, although acknowledging that s. 718.2(e)
was likely designed to encourage sentencing judges to experiment to some degree
with alternatives to incarceration and to be sensitive to principles of
restorative justice, at the same time favours the view that ss. 718-718.2 are
largely a restatement of existing law.  Alternatively, the appellant argues
strongly that s. 718.2(e)'s specific reference to aboriginal offenders can have
no purpose unless it effects a change in the law.  The appellant advances the
view that s. 718.2(e) is in fact an "affirmative action" provision justified
under s. 15(2) of the Canadian Charter of Rights and Freedoms.

32   Section 12 of the Interpretation Act deems the purpose of the enactment of
the new Part XXIII of the Criminal Code to be remedial in nature, and requires
that all of the provisions of Part XXIII, including s. 718.2(e), be given a
fair, large and liberal construction and interpretation in order to attain that
remedial objective.  However, the existence of s. 12 does not answer the
essential question of what the remedial purpose of s. 718.2(e) is.  One view is
that the remedial purpose of ss. 718, 718.1 and 718.2 taken together was
precisely to codify the purpose and existing principles of sentencing to provide
more systematic guidance to sentencing judges in individual cases. Codification,
under this view, is remedial in and of itself because it simplifies and adds
structure to trial level sentencing decisions: see, e.g., McDonald, supra, at
pp. 460-64, per Sherstobitoff J.A.

33   In our view, s. 718.2(e) is more than simply a re-affirmation of existing
sentencing principles.  The remedial component of the provision consists not
only in the fact that it codifies a principle of sentencing, but, far more
importantly, in its direction to sentencing judges to undertake the process of
sentencing aboriginal offenders differently, in order to endeavour to achieve a
truly fit and proper sentence in the particular case.  It should be said that
the words of s. 718.2(e) do not alter the fundamental duty of the sentencing
judge to impose a sentence that is fit for the offence and the offender.  For
example, as we will discuss below, it will generally be the case as a practical
matter that particularly violent and serious offences will result in
imprisonment for aboriginal offenders as often as for non-aboriginal offenders. 
What s. 718.2(e) does alter is the method of analysis which each sentencing
judge must use in determining the nature of a fit sentence for an aboriginal
offender.  In our view, the scheme of Part XXIII of the Criminal Code, the
context underlying the enactment of s. 718.2(e), and the legislative history of
the provision all support an interpretation of s. 718.2(e) as having this
important remedial purpose.

34   In his submissions before this Court, counsel for the appellant expressed
the fear that s. 718.2(e) might come to be interpreted and applied in a manner
which would have no real effect upon the day-to-day practice of sentencing
aboriginal offenders in Canada.  In light of the tragic history of the treatment
of aboriginal peoples within the Canadian criminal justice system, we do not
consider this fear to be unreasonable.  In our view, s. 718.2(e) creates a
judicial duty to give its remedial purpose real force.

35   Let us consider now the wording of s. 718.2(e) and its place within the
overall scheme of Part XXIII of the Criminal Code.

36   Section 718.2(e) directs a court, in imposing a sentence, to consider all
available sanctions other than imprisonment that are reasonable in the
circumstances for all offenders, "with particular attention to the circumstances
of aboriginal offenders".  The broad role of the provision is clear.  As a
general principle, s. 718.2(e) applies to all offenders, and states that
imprisonment should be the penal sanction of last resort. Prison is to be used
only where no other sanction or combination of sanctions is appropriate to the
offence and the offender.

37   The next question is the meaning to be attributed to the words "with
particular attention to the circumstances of aboriginal offenders".  The phrase
cannot be an instruction for judges to pay "more" attention when sentencing
aboriginal offenders. It would be unreasonable to assume that Parliament
intended sentencing judges to prefer certain categories of offenders over
others.  Neither can the phrase be merely an instruction to a sentencing judge
to consider the circumstances of aboriginal offenders just as she or he would
consider the circumstances of any other offender.  There would be no point in
adding a special reference to aboriginal offenders if this was the case. Rather,
the logical meaning to be derived from the special reference to the
circumstances of aboriginal offenders, juxtaposed as it is against a general
direction to consider "the circumstances" for all offenders, is that sentencing
judges should pay particular attention to the circumstances of aboriginal
offenders because those circumstances are unique, and different from those of
non-aboriginal offenders.  The fact that the reference to aboriginal offenders
is contained in s. 718.2(e), in particular, dealing with restraint in the use of
imprisonment, suggests that there is something different about aboriginal
offenders which may specifically make imprisonment a less appropriate or less
useful sanction.

38   The wording of s. 718.2(e) on its face, then, requires both consideration
of alternatives to the use of imprisonment as a penal sanction generally, which
amounts to a restraint in the resort to imprisonment as a sentence, and
recognition by the sentencing judge of the unique circumstances of aboriginal
offenders.  The respondent argued before this Court that this statutory wording
does not truly effect a change in the law, as some courts have in the past taken
the unique circumstances of an aboriginal offender into account in determining
sentence.  The respondent cited some of the recent jurisprudence dealing with
sentencing circles, as well as the decision of the Court of Appeal for Ontario
in R. v. Fireman (1971), 4 C.C.C. (2d) 82, in support of the view that
s. 718.2(e) should be seen simply as a codification of the state of the case law
regarding the sentencing of aboriginal offenders before Part XXIII came into
force in 1996.  In a similar vein, it was observed by Sherstobitoff J.A. in
McDonald, supra, at pp. 463-64, that it has always been a principle of
sentencing that courts should consider all available sanctions other than
imprisonment that are reasonable in the circumstances.  Thus the general
principle of restraint expressed in s. 718.2(e) with respect to all offenders
might equally be seen as a codification of existing law.

39   With respect for the contrary view, we do not interpret s. 718.2(e) as
expressing only a restatement of existing law, either with respect to the
general principle of restraint in the use of prison or with respect to the
specific direction regarding aboriginal offenders.  One cannot interpret the
words of s. 718.2(e) simply by looking to past cases to see if they contain
similar statements of principle.  The enactment of the new Part XXIII was a
watershed, marking the first codification and significant reform of sentencing
principles in the history of Canadian criminal law. Each of the provisions of
Part XXIII, including s. 718.2(e), must be interpreted in its total context,
taking into account its surrounding provisions.

40   It is true that there is ample jurisprudence supporting the principle that
prison should be used as a sanction of last resort.  It is equally true, though,
that the sentencing amendments which came into force in 1996 as the new
Part XXIII have changed the range of available penal sanctions in a significant
way.  The availability of the conditional sentence of imprisonment, in
particular, alters the sentencing landscape in a manner which gives an entirely
new meaning to the principle that imprisonment should be resorted to only where
no other sentencing option is reasonable in the circumstances. The creation of
the conditional sentence suggests, on its face, a desire to lessen the use of
incarceration.  The general principle expressed in s. 718.2(e) must be construed
and applied in this light.

41   Further support for the view that s. 718.2(e)'s expression of the principle
of restraint in sentencing is remedial, rather than simply a codification, is
provided by the articulation of the purpose of sentencing in s. 718.

42   Traditionally, Canadian sentencing jurisprudence has focussed primarily
upon achieving the aims of separation, specific and general deterrence,
denunciation, and rehabilitation.  Sentencing, like the criminal trial process
itself, has often been understood as a conflict between the interests of the
state (as expressed through the aims of separation, deterrence, and
denunciation) and the interests of the individual offender (as expressed through
the aim of rehabilitation).  Indeed, rehabilitation itself is a relative
late-comer to the sentencing analysis, which formerly favoured the interests of
the state almost entirely.

43   Section 718 now sets out the purpose of sentencing in the following terms:

   718.  The fundamental purpose of sentencing is to contribute, along with
crime prevention initiatives, to respect for the law and the maintenance of a
just, peaceful and safe society by imposing just sanctions that have one or more
of the following objectives:

   (a)to denounce unlawful conduct;

   (b)to deter the offender and other persons from committing offences;

   (c)to separate offenders from society, where necessary;

   (d)to assist in rehabilitating offenders;

   (e)to provide reparations for harm done to victims or to the community; and

   (f)to promote a sense of responsibility in offenders, and acknowledgment of
the harm done to victims and to the community. [Emphasis added.]

   Clearly, s. 718 is, in part, a restatement of the basic sentencing aims,
which are listed in paras. (a) through (d).  What are new, though, are paras.
(e) and (f), which along with para. (d) focus upon the restorative goals of
repairing the harms suffered by individual victims and by the community as a
whole, promoting a sense of responsibility and an acknowledgment of the harm
caused on the part of the offender, and attempting to rehabilitate or heal the
offender.  The concept of restorative justice which underpins paras. (d), (e),
and (f) is briefly discussed below, but as a general matter restorative justice
involves some form of restitution and reintegration into the community.  The
need for offenders to take responsibility for their actions is central to the
sentencing process: D. Kwochka, "Aboriginal Injustice: Making Room for a
Restorative Paradigm" (1996), 60 Sask. L. Rev. 153, at p. 165.  Restorative
sentencing goals do not usually correlate with the use of prison as a sanction. 
In our view, Parliament's choice to include (e) and (f) alongside the
traditional sentencing goals must be understood as evidencing an intention to
expand the parameters of the sentencing analysis for all offenders.  The
principle of restraint expressed in s. 718.2(e) will necessarily be informed by
this re-orientation.

44   Just as the context of Part XXIII supports the view that s. 718.2(e) has a
remedial purpose for all offenders, the scheme of Part XXIII also supports the
view that s. 718.2(e) has a particular remedial role for aboriginal peoples. 
The respondent is correct to point out that there is jurisprudence which
pre-dates the enactment of s. 718.2(e) in which aboriginal offenders have been
sentenced differently in light of their unique circumstances.  However, the
existence of such jurisprudence is not, on its own, especially probative of the
issue of whether s. 718.2(e) has a remedial role.  There is also sentencing
jurisprudence which holds, for example, that a court must consider the unique
circumstances of offenders who are battered spouses, or who are mentally
disabled. Although the validity of the principles expressed in this latter
jurisprudence is unchallenged by the 1996 sentencing reforms, one does not find
reference to these principles in Part XXIII.  If Part XXIII were indeed a
codification of principles regarding the appropriate method of sentencing
different categories of offenders, one would expect to find such references. 
The wording of s. 718.2(e), viewed in light of the absence of similar
stipulations in the remainder of Part XXIII, reveals that Parliament has chosen
to single out aboriginal offenders for particular attention.

   C.  Legislative History

45   Support for the foregoing understanding of s. 718.2(e) as having the
remedial purpose of restricting the use of prison for all offenders, and as
having a particular remedial role with respect to aboriginal peoples, is
provided by statements made by the Minister of Justice and others at the time
that what was then Bill C-41 was before Parliament.  Although these statements
are clearly not decisive as to the meaning and purpose of s. 718.2(e), they are
nonetheless helpful, particularly insofar as they corroborate and do not
contradict the meaning and purpose to be derived upon a reading of the words of
the provision in the context of Part XXIII as a whole:  Rizzo & Rizzo Shoes,
supra, at paras. 31 and 35.

46   For instance, in introducing second reading of Bill C-41 on September 20,
1994 (House of Commons Debates, vol. IV, 1st Sess., 35th Parl., at pp. 5871 and
5873), Minister of Justice Allan Rock made the following statements regarding
the remedial purpose of the bill:

   Through this bill, Parliament provides the courts with clear guidelines . . .
.

   . . .

   The bill also defines various sentencing principles, for instance that the
sentence must be proportionate to the gravity of the offence and the offender's
degree of responsibility.  When appropriate, alternatives must be contemplated,
especially in the case of Native offenders.

   . . .

   A general principle that runs throughout Bill C-41 is that jails should be
reserved for those who should be there.  Alternatives should be put in place for
those who commit offences but who do not need or merit incarceration.

   ...

   Jails and prisons will be there for those who need them, for those who should
be punished in that way or separated from society. . . .  [T]his bill creates an
environment which encourages community sanctions and the rehabilitation of
offenders together with reparation to victims and promoting in criminals a sense
of accountability for what they have done.

   It is not simply by being more harsh that we will achieve more effective
criminal justice.  We must use our scarce resources wisely.  [Emphasis added.]

   The Minister's statements were echoed by other Members of Parliament and by
Senators during the debate over the bill: see, e.g., House of Commons Debates,
vol. V, 1st Sess., 35th Parl., September 22, 1994, at p. 6028 (Mr. Morris
Bodnar); Debates of the Senate, vol. 135, No. 99, 1st Sess., 35th Parl., June
21, 1995, at p. 1871 (Hon. Duncan J. Jessiman).

47   In his subsequent testimony before the House of Commons Standing Committee
on Justice and Legal Affairs (Minutes of Proceedings and Evidence, Issue No. 62,
November 17, 1994, at p. 62:15), the Minister of Justice addressed the specific
role the government hoped would be played by s. 718.2(e):

   [T]he reason we referred specifically there to aboriginal persons is that
they are sadly overrepresented in the prison populations of Canada.  I think it
was the Manitoba justice inquiry that found that although aboriginal persons
make up only 12% of the population of Manitoba, they comprise over 50% of the
prison inmates.  Nationally aboriginal persons represent about 2% of Canada's
population, but they represent 10.6% of persons in prison. Obviously there's a
problem here.

   What we're trying to do, particularly having regard to the initiatives in the
aboriginal communities to achieve community justice, is to encourage courts to
look at alternatives where it's consistent with the protection of the public --
alternatives to jail -- and not simply resort to that easy answer in every case.
 [Emphasis added.]

48   It can be seen, therefore, that the government position when Bill C-41 was
under consideration was that the new Part XXIII was to be remedial in nature.
The proposed enactment was directed, in particular, at reducing the use of
prison as a sanction, at expanding the use of restorative justice principles in
sentencing, and at engaging in both of these objectives with a sensitivity to
aboriginal community justice initiatives when sentencing aboriginal offenders.

   D.  The Context of the Enactment of Section 718.2(e)

49   Further guidance as to the scope and content of Parliament's remedial
purpose in enacting s. 718.2(e) may be derived from the social context
surrounding the enactment of the provision.  On this point, it is worth noting
that, although there is quite a wide divergence between the positions of the
appellant and the respondent as to how s. 718.2(e) should be applied in
practice, there is general agreement between them, and indeed between the
parties and all interveners, regarding the mischief in response to which
s. 718.2(e) was enacted.

50   The parties and interveners agree that the purpose of s. 718.2(e) is to
respond to the problem of overincarceration in Canada, and to respond, in
particular, to the more acute problem of the disproportionate incarceration of
aboriginal peoples.  They also agree that one of the roles of s. 718.2(e), and
of various other provisions in Part XXIII, is to encourage sentencing judges to
apply principles of restorative justice alongside or in the place of other, more
traditional sentencing principles when making sentencing determinations.  As the
respondent states in its factum before this Court, s. 718.2(e) "provides the
necessary flexibility and authority for sentencing judges to resort to the
restorative model of justice in sentencing aboriginal offenders and to reduce
the imposition of jail sentences where to do so would not sacrifice the
traditional goals of sentencing".

51   The fact that the parties and interveners are in general agreement among
themselves regarding the purpose of s. 718.2(e) is not determinative of the
issue as a matter of statutory construction.  However, as we have suggested, on
the above points of agreement the parties and interveners are correct.  A review
of the problem of overincarceration in Canada, and of its peculiarly devastating
impact upon Canada's aboriginal peoples, provides additional insight into the
purpose and proper application of this new provision.

   (1)  The Problem of Overincarceration in Canada

52   Canada is a world leader in many fields, particularly in the areas of
progressive social policy and human rights.  Unfortunately, our country is also
distinguished as being a world leader in putting people in prison.  Although the
United States has by far the highest rate of incarceration among industrialized
democracies, at over 600 inmates per 100,000 population, Canada's rate of
approximately 130 inmates per 100,000 population places it second or third
highest: see Federal/Provincial/Territorial Ministers Responsible for Justice,
Corrections Population Growth: First Report on Progress (1997), Annex B, at p.
1; Bulletin of U.S. Bureau of Justice Statistics, Prison and Jail Inmates at
Midyear 1998 (March 1999); The Sentencing Project, Americans Behind Bars: U.S.
and International Use of Incarceration, 1995 (June 1997), at p. 1.  Moreover,
the rate at which Canadian courts have been imprisoning offenders has risen
sharply in recent years, although there has been a slight decline of late: see
Statistics Canada, "Prison population and costs" in Infomat: A Weekly Review
(February 27, 1998), at p. 5.  This record of incarceration rates obviously
cannot instil a sense of pride.

53   The systematic use of the sanction of imprisonment in Canada may be dated
to the building of the Kingston Penitentiary in 1835.  The penitentiary sentence
was itself originally conceived as an alternative to the harsher penalties of
death, flogging, or imprisonment in a local jail.  Sentencing reformers
advocated the use of penitentiary imprisonment as having effects which were not
only deterrent, denunciatory, and preventive, but also rehabilitative, with long
hours spent in contemplation and hard work contributing to the betterment of the
offender:  see Law Reform Commission of Canada, Working Paper 11, Imprisonment
and Release (1975), at p. 5.

54   Notwithstanding its idealistic origins, imprisonment quickly came to be
condemned as harsh and ineffective, not only in relation to its purported
rehabilitative goals, but also in relation to its broader public goals.  The
history of Canadian commentary regarding the use and effectiveness of
imprisonment as a sanction was recently well summarized by Vancise J.A.,
dissenting in the Saskatchewan Court of Appeal in McDonald, supra, at
pp. 429-30:

   A number of inquiries and commissions have been held in this country to
examine, among other things, the effectiveness of the use of incarceration in
sentencing.  There has been at least one commission or inquiry into the use of
imprisonment in each decade of this century since 1914. . . .

   . . . An examination of the recommendations of these reports reveals one
constant theme: imprisonment should be avoided if possible and should be
reserved for the most serious offences, particularly those involving violence.
They all recommend restraint in the use of incarceration and recognize that
incarceration has failed to reduce the crime rate and should be used with
caution and moderation.  Imprisonment has failed to satisfy a basic function of
the Canadian judicial system which was described in the Report of the Canadian
Committee on Corrections entitled: "Toward Unity: Criminal Justice and
Corrections" (1969) as "to protect society from crime in a manner commanding
public support while avoiding needless injury to the offender".  [Emphasis
added; footnote omitted.]

55   In a similar vein, in 1987, the Canadian Sentencing Commission wrote in its
report entitled Sentencing Reform:  A Canadian Approach, at pp. xxiii-xxiv:

   Canada does not imprison as high a portion of its population as does the
United States.  However, we do imprison more people than most other western
democracies.  The Criminal Code displays an apparent bias toward the use of
incarceration since for most offences the penalty indicated is expressed in
terms of a maximum term of imprisonment.  A number of difficulties arise if
imprisonment is perceived to be the preferred sanction for most offences. 
Perhaps most significant is that although we regularly impose this most onerous
and expensive sanction, it accomplishes very little apart from separating
offenders from society for a period of time.  In the past few decades many
groups and federally appointed committees and commissions given the
responsibility of studying various aspects of the criminal justice system have
argued that imprisonment should be used only as a last resort and/or that it
should be reserved for those convicted of only the most serious offences. 
However, although much has been said, little has been done to move us in this
direction.  [Emphasis added.]

56   With equal force, in Taking Responsibility (1988), at p. 75, the Standing
Committee on Justice and Solicitor General stated:

   It is now generally recognized that imprisonment has not been effective in
rehabilitating or reforming offenders, has not been shown to be a strong
deterrent, and has achieved only temporary public protection and uneven
retribution, as the lengths of prison sentences handed down vary for the same
type of crime.

   Since imprisonment generally offers the public protection from criminal
behaviour for only a limited time, rehabilitation of the offender is of great
importance.  However, prisons have not generally been effective in reforming
their inmates, as the high incidence of recidivism among prison populations
shows.

   The use of imprisonment as a main response to a wide variety of offences
against the law is not a tenable approach in practical terms.  Most offenders
are neither violent nor dangerous.  Their behaviour is not likely to be improved
by the prison experience.  In addition, their growing numbers in jails and
penitentiaries entail serious problems of expense and administration, and
possibly increased future risks to society.  Moreover, modern technology may now
permit the monitoring in the community of some offenders who previously might
have been incarcerated for incapacitation or denunciation purposes. 
Alternatives to imprisonment and intermediate sanctions, therefore, are
increasingly viewed as necessary developments. [Emphasis added; footnotes
omitted.]

   The Committee proposed that alternative forms of sentencing should be
considered for those offenders who did not endanger the safety of others.  It
was put in this way, at pp. 50 and 54:

   [O]ne of the primary foci of such alternatives must be on techniques which
contribute to offenders accepting responsibility for their criminal conduct and,
through their subsequent behaviour, demonstrating efforts to restore the victim
to the position he or she was in prior to the offence and/or providing a
meaningful apology.

   . . .

   [E]xcept where to do so would place the community at undue risk, the
"correction" of the offender should take place in the community and imprisonment
should be used with restraint.

57   Thus, it may be seen that although imprisonment is intended to serve the
traditional sentencing goals of separation, deterrence, denunciation, and
rehabilitation, there is widespread consensus that imprisonment has not been
successful in achieving some of these goals.  Overincarceration is a
long-standing problem that has been many times publicly acknowledged but never
addressed in a systematic manner by Parliament. In recent years, compared to
other countries, sentences of imprisonment in Canada have increased at an
alarming rate.  The 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.

   (2)  The Overrepresentation of Aboriginal Canadians in Penal Institutions

58   If overreliance upon incarceration is a problem with the general
population, it is of much greater concern in the sentencing of aboriginal
Canadians.  In the mid-1980s, aboriginal people were about 2 percent of the
population of Canada, yet they made up 10 percent of the penitentiary
population.  In Manitoba and Saskatchewan, aboriginal people constituted
something between 6 and 7 percent of the population, yet in Manitoba they
represented 46 percent of the provincial admissions and in Saskatchewan 60
percent:  see M. Jackson, "Locking Up Natives in Canada" (1988-89), 23 U.B.C. L.
Rev. 215 (article originally prepared as a report of the Canadian Bar
Association Committee on Imprisonment and Release in June 1988), at pp. 215-16. 
The situation has not improved in recent years.  By 1997, aboriginal peoples
constituted closer to 3 percent of the population of Canada and amounted to 12
percent of all federal inmates: Solicitor General of Canada, Consolidated
Report, Towards a Just, Peaceful and Safe Society: The Corrections and
Conditional Release Act -- Five Years Later (1998), at pp. 142-55.  The
situation continues to be particularly worrisome in Manitoba, where in 1995-96
they made up 55 percent of admissions to provincial correctional facilities, and
in Saskatchewan, where they made up 72 percent of admissions.  A similar, albeit
less drastic situation prevails in Alberta and British Columbia: Canadian Centre
for Justice Statistics, Adult Correctional Services in Canada, 1995-96 (1997),
at p. 30.

59   This serious problem of aboriginal overrepresentation in Canadian prisons
is well documented.  Like the general problem of overincarceration itself, the
excessive incarceration of aboriginal peoples has received the attention of a
large number of commissions and inquiries: see, by way of example only, Canadian
Corrections Association, Indians and the Law (1967); Law Reform Commission of
Canada, The Native Offender and the Law (1974), prepared by D. A. Schmeiser;
Public Inquiry into the Administration of Justice and Aboriginal People, Report
of the Aboriginal Justice Inquiry of Manitoba, vol. 1, The Justice System and
Aboriginal People (1991); Royal Commission on Aboriginal Peoples, Bridging the
Cultural Divide (1996).

60   In "Locking Up Natives in Canada", supra, at pp. 215-16, Jackson provided a
disturbing account of the enormity of the disproportion:

   Statistics about crime are often not well understood by the public and are
subject to variable interpretation by the experts.  In the case of the
statistics regarding the impact of the criminal justice system on native people
the figures are so stark and appalling that the magnitude of the problem can be
neither misunderstood nor interpreted away.  Native people come into contact
with Canada's correctional system in numbers grossly disproportionate to their
representation in the community.  More than any other group in Canada they are
subject to the damaging impacts of the criminal justice system's heaviest
sanctions.  Government figures -- which reflect different definitions of
"native" and which probably underestimate the number of prisoners who consider
themselves native -- show that almost 10% of the federal penitentiary population
is native (including 13% of the federal women's prisoner population) compared to
about 2% of the population nationally. . . .  Even more disturbing, the
disproportionality is growing.  In 1965 some 22% of the prisoners in Stony
Mountain Penitentiary were native; in 1984 this proportion was 33%.  It is
realistic to expect that absent radical change, the problem will intensify due
to the higher birth rate in native communities.

   Bad as this situation is within the federal system, it is even worse in a
number of the western provincial correctional systems. . . .  A study reviewing
admissions to Saskatchewan's correctional system in 1976-77 appropriately titled
"Locking Up Indians in Saskatchewan", contains findings that should shock the
conscience of everyone in Canada.  In comparison to male non-natives, male
treaty Indians were 25 times more likely to be admitted to a provincial
correctional centre while non-status Indians or Métis were 8 times more likely
to be admitted.  If only the population over fifteen years of age is considered
(the population eligible to be admitted to provincial correctional centres in
Saskatchewan), then male treaty Indians were 37 times more likely to be
admitted, while male non-status Indians were 12 times more likely to be
admitted.  For women the figures are even more extreme: a treaty Indian woman
was 131 times more likely to be admitted and a non-status or Métis woman 28
times more likely than a non-native.

   The Saskatchewan study brings home the implications of its findings by
indicating that a treaty Indian boy turning 16 in 1976 had a 70% chance of at
least one stay in prison by the age of 25 (that age range being the one with the
highest risk of imprisonment).  The corresponding figure for non-status or Métis
was 34%.  For a non-native Saskatchewan boy the figure was 8%. Put another way,
this means that in Saskatchewan, prison has become for young native men, the
promise of a just society which high school and college represent for the rest
of us.  Placed in an historical context, the prison has become for many young
native people the contemporary equivalent of what the Indian residential school
represented for their parents.  [Emphasis added; footnotes omitted.]

61   Not surprisingly, the excessive imprisonment of aboriginal people is only
the tip of the iceberg insofar as the estrangement of the aboriginal peoples
from the Canadian criminal justice system is concerned.  Aboriginal people are
overrepresented in virtually all aspects of the system.  As this Court recently
noted in R. v. Williams, [1998] 1 S.C.R. 1128, at para. 58, there is widespread
bias against aboriginal people within Canada, and "[t]here is evidence that this
widespread racism has translated into systemic discrimination in the criminal
justice system".

62   Statements regarding the extent and severity of this problem are
disturbingly common.  In Bridging the Cultural Divide, supra, at p. 309, the
Royal Commission on Aboriginal Peoples listed as its first "Major Findings and
Conclusions" the following striking yet representative statement:

   The Canadian criminal justice system has failed the Aboriginal peoples of
Canada -- First Nations, Inuit and Métis people, on-reserve and off-reserve,
urban and rural -- in all territorial and governmental jurisdictions.  The
principal reason for this crushing failure is the fundamentally different world
views of Aboriginal and non-Aboriginal people with respect to such elemental
issues as the substantive content of justice and the process of achieving
justice.

63   To the same effect, the Aboriginal Justice Inquiry of Manitoba described
the justice system in Manitoba as having failed aboriginal people on a "massive
scale", referring particularly to the substantially different cultural values
and experiences of aboriginal people: The Justice System and Aboriginal People,
supra, at pp. 1 and 86.

64   These findings cry out for recognition of the magnitude and gravity of the
problem, and for 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 the criminal justice system reveals a sad and pressing social
problem.  It is reasonable to assume that Parliament, in singling out aboriginal
offenders for distinct sentencing treatment in s. 718.2(e), intended to attempt
to redress this social problem to some degree.  The provision may properly be
seen as Parliament's direction to members of the judiciary to inquire into the
causes of the problem and to endeavour to remedy it, to the extent that a remedy
is possible through the sentencing process.

65   It is clear that sentencing innovation by itself cannot remove the causes
of aboriginal offending and the greater problem of aboriginal alienation from
the criminal justice system.  The unbalanced ratio of imprisonment for
aboriginal offenders flows from a number of sources, including poverty,
substance abuse, lack of education, and the lack of employment opportunities for
aboriginal people.  It arises also from bias against aboriginal people and from
an unfortunate institutional approach that is more inclined to refuse bail and
to impose more and longer prison terms for aboriginal offenders. There are many
aspects of this sad situation which cannot be addressed in these reasons. What
can and must be addressed, though, is the limited role that sentencing judges
will play in remedying injustice against aboriginal peoples in Canada. 
Sentencing judges are among those decision-makers who have the power to
influence the treatment of aboriginal offenders in the justice system.  They
determine most directly whether an aboriginal offender will go to jail, or
whether other sentencing options may be employed which will play perhaps a
stronger role in restoring a sense of balance to the offender, victim, and
community, and in preventing future crime.

   E.  A Framework of Analysis for the Sentencing Judge

   (1)  What Are the "Circumstances of Aboriginal Offenders"?

66   How are sentencing judges to play their remedial role?  The words of
s. 718.2(e) instruct the sentencing judge to pay particular attention to the
circumstances of aboriginal offenders, with the implication that those
circumstances are significantly different from those of non-aboriginal
offenders.  The background considerations regarding the distinct situation of
aboriginal peoples in Canada encompass a wide range of unique circumstances,
including, most particularly:

   (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.

   (a)  Systemic and Background Factors

67   The background factors which figure prominently in the causation of crime
by aboriginal offenders are by now well known.  Years of dislocation and
economic development have translated, for many aboriginal peoples, into low
incomes, high unemployment, lack of opportunities and options, lack or
irrelevance of education, substance abuse, loneliness, and community
fragmentation.  These and other factors contribute to a higher incidence of
crime and incarceration.  A disturbing account of these factors is set out by
Professor Tim Quigley, "Some Issues in Sentencing of Aboriginal Offenders", in
Continuing Poundmaker and Riel's Quest (1994), at pp. 269-300.  Quigley ably
describes the process whereby these various factors produce an overincarceration
of aboriginal offenders, noting (at pp. 275-76) that "[t]he unemployed,
transients, the poorly educated are all better candidates for imprisonment. 
When the social, political and economic aspects of our society place Aboriginal
people disproportionately within the ranks of the latter, our society literally
sentences more of them to jail."

68   It is true that systemic and background factors explain in part the
incidence of crime and recidivism for non-aboriginal offenders as well. 
However, it must be recognized that the circumstances of aboriginal offenders
differ from those of the majority because many aboriginal people are victims of
systemic and direct discrimination, many suffer the legacy of dislocation, and
many are substantially affected by poor social and economic conditions. 
Moreover, as has been emphasized repeatedly in studies and commission reports,
aboriginal offenders are, as a result of these unique systemic and background
factors, more adversely affected by incarceration and less likely to be
"rehabilitated" thereby, because the internment milieu is often culturally
inappropriate and regrettably discrimination towards them is so often rampant in
penal institutions.

69   In this case, of course, we are dealing with factors that must be
considered by a judge sentencing an aboriginal offender.  While background and
systemic factors will also be of importance for a judge in sentencing a
non-aboriginal offender, the judge who is called upon to sentence an aboriginal
offender must give attention to the unique background and systemic factors which
may have played a part in bringing the particular offender before the courts. 
In cases where such factors have played a significant role, it is incumbent upon
the sentencing judge to consider these factors in evaluating whether
imprisonment would actually serve to deter, or to denounce crime in a sense that
would be meaningful to the community of which the offender is a member.  In many
instances, more restorative sentencing principles will gain primary relevance
precisely because the prevention of crime as well as individual and social
healing cannot occur through other means.

   (b)  Appropriate Sentencing Procedures and Sanctions

70   Closely related to the background and systemic factors which have
contributed to an excessive aboriginal incarceration rate are the different
conceptions of appropriate sentencing procedures and sanctions held by
aboriginal people.  A significant problem experienced by aboriginal people who
come into contact with the criminal justice system is that the traditional
sentencing ideals of deterrence, separation, and denunciation are often far
removed from the understanding of sentencing held by these offenders and their
community.  The aims of restorative justice as now expressed in paras. (d), (e),
and (f) of s. 718 of the Criminal Code apply to all offenders, and not only
aboriginal offenders.  However, most traditional aboriginal conceptions of
sentencing place a primary emphasis upon the ideals of restorative justice. 
This tradition is extremely important to the analysis under s. 718.2(e).

71   The concept and principles of a restorative approach will necessarily have
to be developed over time in the jurisprudence, as different issues and
different conceptions of sentencing are addressed in their appropriate context. 
In general terms, restorative justice may be described as an approach to

remedying crime in which it is understood that all things are interrelated and
that crime disrupts the harmony which existed prior to its occurrence, or at
least which it is felt should exist.  The appropriateness of a particular
sanction is largely determined by the needs of the victims, and the community,
as well as the offender.  The focus is on the human beings closely affected by
the crime. See generally, e.g., Bridging the Cultural Divide, supra, at
pp. 12-25; The Justice System and Aboriginal People, supra, at pp. 17-46; 
Kwochka, supra; M. Jackson, "In Search of the Pathways to Justice: Alternative
Dispute Resolution in Aboriginal Communities", [1992] U.B.C. L. Rev. (Special
Edition) 147.

72   The existing overemphasis on incarceration in Canada may be partly due to
the perception that a restorative approach is a more lenient approach to crime
and that imprisonment constitutes the ultimate punishment.  Yet in our view a
sentence focussed on restorative justice is not necessarily a "lighter"
punishment.  Some proponents of restorative justice argue that when it is
combined with probationary conditions it may in some circumstances impose a
greater burden on the offender than a custodial sentence. See Kwochka, supra,
who writes at p. 165:

   At this point there is some divergence among proponents of restorative
justice.  Some seek to abandon the punishment paradigm by focusing on the
differing goals of a restorative system.  Others, while cognizant of the
differing goals, argue for a restorative system in terms of a punishment model. 
They argue that non-custodial sentences can have an equivalent punishment value
when produced and administered by a restorative system and that the healing
process can be more intense than incarceration. Restorative justice necessarily
involves some form of restitution and reintegration into the community.  Central
to the process is the need for offenders to take responsibility for their
actions.  By comparison, incarceration obviates the need to accept
responsibility.  Facing victim and community is for some more frightening than
the possibility of a term of imprisonment and yields a more beneficial result in
that the offender may become a healed and functional member of the community
rather than a bitter offender returning after a term of imprisonment.

73   In describing in general terms some of the basic tenets of traditional
aboriginal sentencing approaches, we do not wish to imply that all aboriginal
offenders, victims, and communities share an identical understanding of
appropriate sentences for particular offences and offenders.  Aboriginal
communities stretch from coast to coast and from the border with the United
States to the far north.  Their customs and traditions and their concept of
sentencing vary widely.  What is important to recognize is that, for many if not
most aboriginal offenders, the current concepts of sentencing are inappropriate
because they have frequently not responded to the needs, experiences, and
perspectives of aboriginal people or aboriginal communities.

74   It is unnecessary to engage here in an extensive discussion of the
relatively recent evolution of innovative sentencing practices, such as healing
and sentencing circles, and aboriginal community council projects, which are
available especially to aboriginal offenders.  What is important to note is that
the different conceptions of sentencing held by many aboriginal people share a
common underlying principle: that is, the importance of community-based
sanctions.  Sentencing judges should not conclude that the absence of
alternatives specific to an aboriginal community eliminates their ability to
impose a sanction that takes into account principles of restorative justice and
the needs of the parties involved.  Rather, the point is 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. It is often the case that neither aboriginal offenders nor their
communities are well served by incarcerating offenders, particularly for less
serious or non-violent offences.  Where these sanctions are reasonable in the
circumstances, they should be implemented.  In all instances, it is appropriate
to attempt to craft the sentencing process and the sanctions imposed in
accordance with the aboriginal perspective.

   (2)  The Search for a Fit Sentence

75   The role of the judge who sentences an aboriginal offender is, as for every
offender, to determine a fit sentence taking into account all the circumstances
of the offence, the offender, the victims, and the community.  Nothing in
Part XXIII of the Criminal Code alters this fundamental duty as a general
matter.  However, the effect of s. 718.2(e), viewed in the context of Part XXIII
as a whole, is to alter the method of analysis which sentencing judges must use
in determining a fit sentence for aboriginal offenders.  Section 718.2(e)
requires that sentencing determinations take into account the unique
circumstances of aboriginal peoples.

76   In R. v. M. (C.A.), [1996] 1 S.C.R. 500, at p. 567, Lamer C.J. restated the
long-standing principle of Canadian sentencing law that the appropriateness of a
sentence will depend on the particular circumstances of the offence, the
offender, and the community in which the offence took place.  Disparity of
sentences for similar crimes is a natural consequence of this individualized
focus.  As he stated:

   It has been repeatedly stressed that there is no such thing as a uniform
sentence for a particular crime. . . . Sentencing is an inherently
individualized process, and the search for a single appropriate sentence for a
similar offender and a similar crime will frequently be a fruitless exercise of
academic abstraction.  As well, sentences for a particular offence should be
expected to vary to some degree across various communities and regions of 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.

77   The comments of Lamer C.J. are particularly apt in the context of
aboriginal offenders.  As explained herein, the circumstances of aboriginal
offenders are markedly different from those of other offenders, being
characterized by unique systemic and background factors.  Further, an aboriginal
offender's community will frequently understand the nature of a just sanction in
a manner significantly different from that of many non-aboriginal communities. 
In appropriate cases, some of the traditional sentencing objectives will be
correspondingly less relevant in determining a sentence that is reasonable in
the circumstances, and the goals of restorative justice will quite properly be
given greater weight.  Through its reform of the purpose of sentencing in
s. 718, and through its specific directive to judges who sentence aboriginal
offenders, Parliament has, more than ever before, empowered sentencing judges to
craft sentences in a manner which is meaningful to aboriginal peoples.

78   In describing the effect of s. 718.2(e) in this way, we do not mean to
suggest that, as a general practice, aboriginal offenders must always be
sentenced in a manner which gives greatest weight to the principles of
restorative justice, and less weight to goals such as deterrence, denunciation,
and separation.  It is unreasonable to assume that aboriginal peoples themselves
do not believe in the importance of these latter goals, and even if they do not,
that such goals must not predominate in appropriate cases.  Clearly there are
some serious offences and some offenders for which and for whom separation,
denunciation, and deterrence are fundamentally relevant.

79   Yet, even where an offence is considered serious, the length of the term of
imprisonment must be considered.  In some circumstances the length of the
sentence of an aboriginal offender may be less and in others the same as that of
any other offender. Generally, the more violent and serious the offence the more
likely it is as a practical reality that the terms of imprisonment for
aboriginals and non-aboriginals will be close to each other or the same, even
taking into account their different concepts of sentencing.

80   As with all sentencing decisions, the sentencing of aboriginal offenders
must proceed on an individual (or a case-by-case) basis:  For this offence,
committed by this offender, harming this victim, in this community, what is the
appropriate sanction under the Criminal Code?  What understanding of criminal
sanctions is held by the community?  What is the nature of the relationship
between the offender and his or her community?  What combination of systemic or
background factors contributed to this particular offender coming before the
courts for this particular offence?  How has the offender who is being sentenced
been affected by, for example, substance abuse in the community, or poverty, or
overt racism, or family or community breakdown?  Would imprisonment effectively
serve to deter or denounce crime in a sense that would be significant to the
offender and community, or are crime prevention and other goals better achieved
through healing?  What sentencing options present themselves in these
circumstances?

81   The analysis for sentencing aboriginal offenders, as for all offenders,
must be holistic and designed to achieve a fit sentence in the circumstances. 
There is no single test that a judge can apply in order to determine the
sentence.  The sentencing judge is required to take into account all of the
surrounding circumstances regarding the offence, the offender, the victims, and
the community, including the unique circumstances of the offender as an
aboriginal person.  Sentencing must proceed with sensitivity to and
understanding of the difficulties aboriginal people have faced with both the
criminal justice system and society at large.  When evaluating these
circumstances in light of the aims and principles of sentencing as set out in
Part XXIII of the Criminal Code and in the jurisprudence, the judge must strive
to arrive at a sentence which is just and appropriate in the circumstances.  By
means of s. 718.2(e), sentencing judges have been provided with a degree of
flexibility and discretion to consider in appropriate circumstances alternative
sentences to incarceration which are appropriate for the aboriginal offender and
community and yet comply with the mandated principles and purpose of sentencing.
 In this way, effect may be given to the aboriginal emphasis upon healing and
restoration of both the victim and the offender.

   (3)  The Duty of the Sentencing Judge

82   The foregoing discussion of guidelines for the sentencing judge has spoken
of that which a judge must do when sentencing an aboriginal offender.  This
element of duty is a critical component of s. 718.2(e).  The provision expressly
provides that a court that imposes a sentence should consider all available
sanctions other than imprisonment that are reasonable in the circumstances, and
should pay particular attention to the circumstances of aboriginal offenders. 
There is no discretion as to whether to consider the unique situation of the
aboriginal offender; the only discretion concerns the determination of a just
and appropriate sentence.

83   How then is the consideration of s. 718.2(e) to proceed in the daily
functioning of the courts?  The manner in which the sentencing judge will carry
out his or her statutory duty may vary from case to case.  In all instances it
will be necessary for the judge to take judicial notice of the systemic or
background factors and the approach to sentencing which is relevant to
aboriginal offenders.  However, for each particular offence and offender it may
be that some evidence will be required in order to assist the sentencing judge
in arriving at a fit sentence.  Where a particular offender does not wish such
evidence to be adduced, the right to have particular attention paid to his or
her circumstances as an aboriginal offender may be waived.  Where there is no
such waiver, it will be extremely helpful to the sentencing judge for counsel on
both sides to adduce relevant evidence.  Indeed, it is to be expected that
counsel will fulfil their role and assist the sentencing judge in this way.

84   However, even where counsel do not adduce this evidence, where for example
the offender is unrepresented, it is incumbent upon the sentencing judge to
attempt to acquire information regarding the circumstances of the offender as an
aboriginal person.  Whether the offender resides in a rural area, on a reserve
or in an urban centre the sentencing judge must be made aware of alternatives to
incarceration that exist whether inside or outside the aboriginal community of
the particular offender. The alternatives existing in metropolitan areas must,
as a matter of course, also be explored.  Clearly the presence of an aboriginal
offender will require special attention in pre-sentence reports.  Beyond the use
of the pre-sentence report, the sentencing judge may and should in appropriate
circumstances and where practicable request that witnesses be called who may
testify as to reasonable alternatives.

85   Similarly, where a sentencing judge at the trial level has not engaged in
the duty imposed by s. 718.2(e) as fully as required, it is incumbent upon a
court of appeal in considering an appeal against sentence on this basis to
consider any fresh evidence which is relevant and admissible on sentencing.  In
the same vein, it should be noted that, although s. 718.2(e) does not impose a
statutory duty upon the sentencing judge to provide reasons, it will be much
easier for a reviewing court to determine whether and how attention was paid to
the circumstances of the offender as an aboriginal person if at least brief
reasons are given.

   (4)  The Issue of "Reverse Discrimination"

86   Something must also be said as to the manner in which s. 718.2(e) should
not be interpreted.  The appellant and the respondent diverged significantly in
their interpretation of the appropriate role to be played by s. 718.2(e).  While
the respondent saw the provision largely as a restatement of existing sentencing
principles, the appellant advanced the position that s. 718.2(e) functions as an
affirmative action provision justified under s. 15(2) of the Charter.  The
respondent cautioned that, in his view, the appellant's understanding of the
provision would result in "reverse discrimination" so as to favour aboriginal
offenders over other offenders.

87   There is no constitutional challenge to s. 718.2(e) in these proceedings,
and accordingly we do not address specifically the applicability of s. 15 of the
Charter.  We would note, though, that the aim of s. 718.2(e) is to reduce the
tragic overrepresentation of aboriginal people in prisons.  It seeks to
ameliorate the present situation and to deal with the particular offence and
offender and community.  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.

88   But s. 718.2(e) should not be taken as requiring an automatic reduction of
a sentence, or a remission of a warranted period of incarceration, simply
because the offender is aboriginal.  To the extent that the appellant's
submission on affirmative action means that s. 718.2(e) requires an automatic
reduction in sentence for an aboriginal offender, we reject that view.  The
provision is a direction to sentencing judges to consider certain unique
circumstances pertaining to aboriginal offenders as a part of the task of
weighing the multitude of factors which must be taken into account in striving
to impose a fit sentence.  It cannot be forgotten that s. 718.2(e) must be
considered in the context of that section read as a whole and in the context of
s. 718, s. 718.1, and the overall scheme of Part XXIII.  It is one of the
statutorily mandated considerations that a sentencing judge must take into
account.  It may not always mean a lower sentence for an aboriginal offender. 
The sentence imposed will depend upon all the factors which must be taken into
account in each individual case.  The weight to be given to these various
factors will vary in each case.  At the same time, it must in every case be
recalled that the 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.

   (5)  Who Comes Within the Purview of Section 718.2(e)?

89   The question of whether s. 718.2(e) applies to all aboriginal persons, or
only to certain classes thereof, is raised by this appeal.  The following
passage of the reasons of the judge at trial appears to reflect some ambiguity
as to the applicability of the provision to aboriginal people who do not live in
rural areas or on a reserve:

   The factor that is mentioned in the Criminal Code is that particular
attention to the circumstances of aboriginal offenders should be considered. In
this case both the deceased and the accused were aboriginals, but they are not
living within the aboriginal community as such.  They are living off a reserve
and the offence occurred in an urban setting.  They [sic] do not appear to have
been any special circumstances because of their aboriginal status and so I am
not giving any special consideration to their background in passing this
sentence.

   It could be understood from that passage that, in this case, there were no
special circumstances to warrant the application of s. 718.2(e), and the fact
that the context of the offence was not in a rural setting or on a reserve was
only one of those missing circumstances.  However, this passage was interpreted
by the majority of the Court of Appeal as implying that, "as a matter of
principle, s. 718.2(e) can have no application to aboriginals `not living within
the aboriginal community'" (p. 137).  This understanding of the provision was
unanimously rejected by the members of the Court of Appeal.  With respect to the
trial judge, who was given little assistance from counsel on this issue, we
agree with the Court of Appeal that such a restrictive interpretation of the
provision would be inappropriate.

90   The class of aboriginal people who come within the purview of the specific
reference to the circumstances of aboriginal offenders in s. 718.2(e) must be,
at least, all who come within the scope of s. 25 of the Charter and s. 35 of the
Constitution Act, 1982.  The numbers involved are significant.  National census
figures from 1996 show that an estimated 799,010 people were identified as
aboriginal in 1996.  Of this number, 529,040 were Indians (registered or
non-registered), 204,115 Metis and 40,220 Inuit.

91   Section 718.2(e) applies to all aboriginal offenders wherever they reside,
whether on- or off-reserve, in a large city or a rural area.  Indeed it has been
observed that many aboriginals living in urban areas are closely attached to
their culture.  See the Royal Commission on Aboriginal Peoples, Report of the
Royal Commission on Aboriginal Peoples, vol. 4, Perspectives and Realities
(1996), at p. 521:

   Throughout the Commission's hearings, Aboriginal people stressed the
fundamental importance of retaining and enhancing their cultural identity while
living in urban areas.  Aboriginal identity lies at the heart of Aboriginal
peoples' existence; maintaining that identity is an essential and
self-validating pursuit for Aboriginal people in cities.

   And at p. 525:

   Cultural identity for urban Aboriginal people is also tied to a land base or
ancestral territory.  For many, the two concepts are inseparable....
Identification with an ancestral place is important to urban people because of
the associated ritual, ceremony and traditions, as well as the people who remain
there, the sense of belonging, the bond to an ancestral community, and the
accessibility of family, community and elders.

92   Section 718.2(e) requires the sentencing judge to explore reasonable
alternatives to incarceration in the case of all aboriginal offenders. 
Obviously, if an aboriginal community has a program or tradition of alternative
sanctions, and support and supervision are available to the offender, it may be
easier to find and impose an alternative sentence.  However, even if community
support is not available, every effort should be made in appropriate
circumstances to find a sensitive and helpful alternative. For all purposes, the
term "community" must be defined broadly so as to include any network of support
and interaction that might be available in an urban centre.  At the same time,
the residence of the aboriginal offender in an urban centre that lacks any
network of support does not relieve the sentencing judge of the obligation to
try to find an alternative to imprisonment.

   VI.  Summary

93   Let us see if a general summary can be made of what has been discussed in
these reasons.

1   Part XXIII of the Criminal Code codifies the fundamental purpose and
principles of sentencing and the factors that should be considered by a judge in
striving to determine a sentence that is fit for the offender and the offence.

2   Section 718.2(e) mandatorily requires sentencing judges to consider all
available sanctions other than imprisonment and to pay particular attention to
the circumstances of aboriginal offenders.

3   Section 718.2(e) is not simply a codification of existing jurisprudence. It
is remedial in nature.  Its purpose is to ameliorate the serious problem of
overrepresentation of aboriginal people in prisons, and to encourage sentencing
judges to have recourse to a restorative approach to sentencing.  There is a
judicial duty to give the provision's remedial purpose real force.

4   Section 718.2(e) must be read and considered in the context of the rest of
the factors referred to in that section and in light of all of Part XXIII. All
principles and factors set out in Part XXIII must be taken into consideration in
determining the fit sentence.  Attention should be paid to the fact that Part
XXIII, through ss. 718, 718.2(e), and 742.1, among other provisions, has placed
a new emphasis upon decreasing the use of incarceration.

5   Sentencing is an individual process and in each case the consideration must
continue to be what is a fit sentence for this accused for this offence in this
community.  However, the effect of s. 718.2(e) is to alter the method of
analysis which sentencing judges must use in determining a fit sentence for
aboriginal offenders.

6   Section 718.2(e) directs sentencing judges to undertake the sentencing of
aboriginal offenders individually, but also differently, because the
circumstances of aboriginal people are unique.  In sentencing an aboriginal
offender, the judge must consider:

   (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.

7   In order to undertake these considerations the trial judge will require
information pertaining to the accused.  Judges may take judicial notice of the
broad systemic and background factors affecting aboriginal people, and of the
priority given in aboriginal cultures to a restorative approach to sentencing. 
In the usual course of events, additional case-specific information will come
from counsel and from a pre-sentence report which takes into account the factors
set out in #6, which in turn may come from representations of the relevant
aboriginal community which will usually be that of the offender.  The offender
may waive the gathering of that information.

8   If there is no alternative to incarceration the length of the term must be
carefully considered.

9   Section 718.2(e) is not to be taken as a means of automatically reducing the
prison sentence of aboriginal offenders; nor should it be assumed that an
offender is receiving a more lenient sentence simply because incarceration is
not imposed.

10   The absence of alternative sentencing programs specific to an aboriginal
community does not eliminate the ability of a sentencing judge to impose a
sanction that takes into account principles of restorative justice and the needs
of the parties involved.

11   Section 718.2(e) applies to all aboriginal persons wherever they reside,
whether on- or off-reserve, in a large city or a rural area.  In defining the
relevant aboriginal community for the purpose of achieving an effective
sentence, the term "community" must be defined broadly so as to include any
network of support and interaction that might be available, including in an
urban centre.  At the same time, the residence of the aboriginal offender in an
urban centre that lacks any network of support does not relieve the sentencing
judge of the obligation to try to find an alternative to imprisonment.

12   Based on the foregoing, the jail term for an aboriginal offender may in
some circumstances be less than the term imposed on a non-aboriginal offender
for the same offence.

13   It is unreasonable to assume that aboriginal peoples do not believe in the
importance of traditional sentencing goals such as deterrence, denunciation, and
separation, where warranted.  In this context, generally, the more serious and
violent the crime, the more likely it will be as a practical matter that the
terms of imprisonment will be the same for similar offences and offenders,
whether the offender is aboriginal or non-aboriginal.

   VII.  Was There an Error Made in This Case?

94   From the foregoing analysis it can be seen that the sentencing judge, who
did not have the benefit of these reasons, fell into error.  He may have erred
in limiting the application of s. 718.2(e) to the circumstances of aboriginal
offenders living in rural areas or on-reserve.  Moreover, and perhaps as a
consequence of the first error, he does not appear to have considered the
systemic or background factors which may have influenced the appellant to engage
in criminal conduct, or the possibly distinct conception of sentencing held by
the appellant, by the victim Beaver's family, and by their community.  However,
it should be emphasized that the sentencing judge did take active steps to
obtain at least some information regarding the appellant's aboriginal heritage. 
In this regard he received little if any assistance from counsel on this issue
although they too were acting without the benefit of these reasons.

95   The majority of the Court of Appeal, in dismissing the appellant's appeal,
also does not appear to have considered many of the factors referred to above. 
However, the dissenting reasons of Rowles J.A. discuss the relevant factors in
some detail.  The majority also appears to have dismissed the appellant's
application to adduce fresh evidence.  The majority of the Court of Appeal may
or may not have erred in ultimately deciding to dismiss the fresh evidence
application.  The correctness of its ultimate decision depends largely upon the
admissibility of the fresh evidence and its relevance to the weighing of the
various sentencing goals.  However, assuming admissibility and relevance, it was
certainly incumbent upon the majority to consider the evidence, and especially
so given the failure of the trial judge to do so.  Moreover, if the fresh
evidence before the Court of Appeal was itself insufficient to inform the court
adequately regarding the circumstances of the appellant as an aboriginal
offender, the proper remedy would have been to remit the matter to the trial
judge with instructions to make all the reasonable inquiries necessary for the
sentencing of this aboriginal offender.

96   In most cases, errors such as those in the courts below would be sufficient
to justify sending the matter back for a new sentencing hearing.  It is
difficult for this Court to determine a fit sentence for the appellant according
to the suggested guidelines set out herein on the basis of the very limited
evidence before us regarding the appellant's aboriginal background.  However, as
both the trial judge and all members of the Court of Appeal acknowledged, the
offence in question is a most serious one, properly described by Esson J.A. as a
"near murder".  Moreover, the offence involved domestic violence and a breach of
the trust inherent in a spousal relationship.  That aggravating factor must be
taken into account in the sentencing of the aboriginal appellant as it would be
for any offender.  For that offence by this offender a sentence of three years'
imprisonment was not unreasonable.

97   More importantly, the appellant was granted day parole on August 13, 1997,
after she had served six months in the Burnaby Correctional Centre for Women. 
She was directed to reside with her father, to take alcohol and substance abuse
counselling and to comply with the requirements of the Electronic Monitoring
Program.  On February 25, 1998, the appellant was granted full parole with the
same conditions as the ones applicable to her original release on day parole.

98   In this case, the results of the sentence with incarceration for six months
and the subsequent controlled release were in the interests of both the
appellant and society. In these circumstances, we do not consider that it would
be in the interests of justice to order a new sentencing hearing in order to
canvass the appellant's circumstances as an aboriginal offender.

99   In the result, the appeal is dismissed.

   Appeal dismissed.

   Solicitor for the appellant:  Gil D. McKinnon, Vancouver.

   Solicitor for the respondent:  The Ministry of the Attorney General,
Vancouver.

   Solicitor for the intervener the Attorney General of Canada:  The Department
of Justice, Ottawa.

   Solicitor for the intervener the Attorney General for Alberta:  Alberta
Justice, Calgary.

   Solicitors for the intervener the Aboriginal Legal Services of Toronto Inc.:
Kent Roach and Kimberly R. Murray, Toronto.ééé


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