The tragic death of George Floyd has sparked many questions around how our social infrastructure can better destroy systemic barriers that have long excluded Indigenous and Black communities. While many solutions hinge on restructuring our policing regime, lawyers and judges alike have a significant responsibility in improving the treatment of Black and Indigenous offenders in our criminal justice system. Disproportionate incarceration rates remain a well-documented and distressing reality for visible minorities. Even though Indigenous people only represent 4.9% of the total Canadian population, they made up nearly 24% of the federal offender population in 2018. Likewise, only 3.5% of the Canadian population identify as Black, but data reveals that 7.3% of the federal offender population is Black. [1] Since media outlets have greatly emphasized the happenings in the US, it is easy to deny that systemic racism persists on Canadian soil. Ontario Premier Doug Ford recently stated Canada does not have the same ‘systemic, deeps roots’ of racism as the United States. Although he has since detracted from this statement, it is important to recognize that Canada, like its neighbour down south, was built on ideologies of white supremacy. [2] From enslaving nearly 3,000 people of African ancestry between 1628-1800s to instituting residential schools to take 150,000 First nations, Inuit and Métis children from their families, Canada is no different than the US. [3] Systemic racism is a complex and multidimensional issue that affects the everyday life of people of colour. As such, our governments must develop tailored solutions aimed at demolishing racial barriers in the economic, political and social spheres. Reforms to the criminal justice system is only the tip of the iceberg. The Impact of Gladue Reports on Indigenous Offenders R v Gladue (1999) was a milestone decision that reinforced the restorative principles of sentencing codified under s.718.2 of the Criminal Code (CC). In a nutshell, the accused, an aboriginal woman, pled guilty to manslaughter for the killing of her common law husband, following a violent dispute. The judge sentenced the accused to three years imprisonment, concluding that the offence very serious. The accused appealed on the grounds that the sentence was inappropriate. Both the British Columbia Court of Appeal and the Supreme Court (SCC) dismissed the appeal. The issue in the appeal to the SCC concerned the proper interpretation and application of s.718.2(e) of the CC. The provision reads: 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 accused argued that the judge at first instance failed to consider factors that may have led to the offence. The SCC rejected the argument. Justice Cory and Iacobucci, for the majority, concluded that the judge had accurately contemplated mitigating and aggravating factors. Mitigating factors included the fact that the appellant was only 20 years old at the time of sentence, that she was a mother of two and expecting a third. On the other hand, the trial judge acknowledged several aggravating circumstances. The accused had stabbed the deceased twice and made remarks after the stabbing insinuating that she had intended to cause serious harm. As a result of the SCC decision, s.718.2(e) 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” (para 38). This evolved into what is known as Gladue reports. In essence, these pre-sentencing reports call upon judges to apply an alternate sentencing method that accounts for the unique systemic and background factors which may have played a part in bringing the particular aboriginal offender to court (R v Ipeelee). They are often prepared by Gladue caseworkers at the request of the defence counsel, the Crown or the sentencing judge. It is important to note, that R v Ipeelee established that an accused does not have to show a causal link between their Indigenous background and the offence committed. Gladue reports can include information about the Aboriginal offender’s history with residential schools, child welfare removal, physical or sexual abuse and any underlying health issues. Gladue reports, however, have received an immense backlash since the SCC’s decision. The overrepresentation of Indigenous offenders has been ever increasing. Between 2013 and 2018, the Indigenous population within Canadian correctional facilities has increased by 14.7%. [4] A 2008 study conducted by Welsh and Ogloff found that the s.718.2(e) interpretation “underestimated the true complexity of the over-representation problem”, finding that Indigenous status alone has little influence on sentencing decisions. The study concluded that sentencing decisions placed an emphasis on the aggravating and mitigating factors (such as offence seriousness and prior criminal history), rather than factors specific to Indigenous communities.[5] Therefore, the Gladue decision requires that sentencing decisions must sufficiently delve into the cumulative effects of colonialism and its ongoing legacy within the criminal justice system. Courts must attempt to reject Western perspectives on the purpose of criminal justice, in favour of processes that rebuild Indigenous communities and respond to the broader question of reconciliation. With this shift in perspective, Gladue reports can become an effective tool during sentencing hearings. Gladue and Black Offenders Although, Black and Indigenous communities do not share the same history, there is no doubt that both communities have relentlessly endured systemic discrimination and remain ostracized today. As such, in my opinion, the criminal justice framework must extend Gladue principles to members of the Black community, when making sentencing decisions. This approach was recently applied in R v Morris, whereby Justice Nakatsuru allowed evidence in regard to the Black accused’s personal circumstances. In brief, a jury had found Mr. Morris guilty of a number of offences, including possession of an unauthorized firearm, possession of a prohibited firearm with ammunition, and carrying a concealed weapon. Mr. Morris was arrested in December 2014, when the police received a call about a home invasion in Scarborough. The accused, along with three other young men, were stopped at a nearby parking lot by officers in plainclothes and unmarked police cars. Mr. Morris proceeded to run, eventually colliding with a police officer’s vehicle. He continued to run and was later found outside a grocery store. The police found a loaded revolver in his jacket, hidden at the bottom of a stairwell. While sentences for gun offences tend to be three or more years, the defence argued that the sentence should be one year. Justice Nakatsuru reiterated that sentencing was a “very individual process”. He concluded that s.718.2(e) enabled judges to consider the social context of Black Canadians as well. In his judgment, Nakatsuru acknowledged that systemic factors such as “the history of colonialism, slavery, policies and practices of segregation, intergenerational trauma, and both overt and systemic racism that continue to affect Black Canadians” (para 9). The decision hinged on two reports brought by the defence. First, a report on anti-black racism in Canada generally, highlighting the experiences of Black Canadians within the Toronto region. Second, the judge admitted evidence about the social history of the accused, from a social worker. He placed an emphasis on admitting such evidence during sentencing hearings, in light of the overrepresentation of Black offenders in Canada. This is vital since the goal is to arrive at a fit and proportionate sentence. The more I know about you and your crimes, the better can I arrive at such a fit sentence. This is particularly important when it comes to tackling the problem of the disproportionate imprisonment of Black offenders. If we cannot have resort to such materials, we will never begin to do better. As a result, Mr. Morris was sentenced to one year imprisonment.
I couldn’t agree more with the decision rendered by Justice Nakatsuru. I believe that judges and lawyers have a duty to recognize that Black and Indigenous persons continue to bear the burden of our criminal justice system. Broadening the interpretation of s.718.2(e) to include Black offenders is only one solution to high incarceration rates amongst marginalized communities. Since the decision was rendered at the Ontario Superior Court of Justice, the decision is deemed to only be persuasive precedent. The SCC has yet to rule on the admissibility of background evidence for other minority groups and the broadened interpretation of s.718.2(e). Nonetheless, the federal government must codify this interpretation to guarantee a consistent and equitable approach to sentencing of Black offenders. By Lucinda Chitapain
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When the news broke out about the R v Chan & R v Sullivan appeals, I was furious to say the least. I could not believe that the Ontario Court of Appeal (ONCA) would set back the women/children’s rights movement by enabling defendants to use intoxication as a defence to sexual assault. However, these cases were not about sexual assaults & the rulings were more complicated than what was depicted by news outlets. What happened here is just another example of irresponsible media reporting - one that I, like the rest of Ontario, fell victim to. After coming to this realization (largely owing to Stephanie Guiseppe’s tweets & our in-house crim law expert, Samantha Heggart), I knew I had to write on this to clarify what the decisions are actually about. If a person like me, who is more informed about criminal law than the layperson, could be misled about the impact of Chan and Sullivan on the law then I can only imagine how many others are still mistaken. Automatism Before getting into the details of the cases, a quick crash course on the not criminally responsible (NCR) regime in Canada will help situate the discussion on Chan and Sullivan. Matt C. Zaitchik, PhD, states that the “term automatism refers to motor behavior that is automatic, undirected, and not consciously controlled.” Under the NCR regime, there are two types of automatism - mental disorder (MD) automatism and non-mental disorder (NMD) automatism. A defence of MD automatism negates the mens rea element as the defendant could not appreciate the consequences of their actions owing to their mental disorder. A defence of NMD automatism nullifies the actus reus element by proving that the actions of the defendant were not voluntary. There are two subbranches in NMD - insane automatism, when the state of involuntariness is brought on by a mental disorder and non-insane automatism, when there is an external trigger causing the automatism. Both Chan and Sullivan are trying to raise a defence of non-insane automatism. There is a preference for raising a NMD defence. While three dispositions are available for a successful MD defence - absolute discharge, conditional discharge or detention in a psychiatric facility, a successful NMD defence results in an acquittal. At the trial level Thomas Chan was under the influence of magic mushrooms when he attacked his father and his father’s partner, Lynn Witteveen. His father died from the attack and Ms. Witteveen suffered severe injuries. Chan was charged with murder and attempted murder. David Sullivan was an addict of the prescription drug, Wellbutrin. He overdosed on the drug in a suicide attempt. Instead, the drug propelled him into a state of automatism in which he stabbed his mother repeatedly. At court, Chan first tried to raise a defence under section 16 of the Criminal Code, claiming that he could not be held criminally responsible for an act committed while suffering from a mental disorder. Justice Boswell of the Ontario Superior Court of Justice (OSCJ) rejected this defence because at the time of the offence, Chan was in a state of toxic psychosis, not a mental disorder. Afterwards, Chan applied for an order to get section 33.1 of the Code struck down on the basis that it violated s.7 and s.11(d) of the Charter. Section 33.1 of the Criminal Code was enacted in 1995 as Parliament’s response to the Daviault decision. In Daviault, the defendant was an alcoholic who sexually assaulted an elderly and disabled woman after becoming extremely intoxicated. The Supreme Court of Canada (SCC) found that there is an exception to the prohibition of using self-intoxication as a defence to general intent crimes per Leary v The Queen (1978). Jordan Gold from Robichaud’s explains the distinction between crimes of general intent and specific intent well. Gold stated that while specific intent crimes require a high level of intentionality, for crimes of general intent “the court will presume that a person intends the direct consequences of their actions.” Sexual assault is a crime of general intent. The SCC held that a person cannot be held criminally responsible if they can prove, on a balance of probabilities, that their self-intoxication placed them in a state of automatism, a state of absent awareness. In such a state, they cannot satisfy the voluntariness element of the actus reus. Chan challenged the constitutionality of section 33.1, an extremely controversial provision. He had two arguments to support this contention. First, the court should bind itself to its former ruling in R v Dunn. In Dunn, the ONSJ implied that section 33.1 was unconstitutional. The rules of stare decisis however state that courts are only bound by decisions of higher level courts, even though decisions of courts of similar status or the same court can be persuasive. Second, Chan argued that the current court should strike the section down for being unconstitutional vis-a-vis his section 7 right to life, liberty and security of the person and his section 11(d) right to full answer and defence. Justice Boswell found that while section 33.1 does breach these constitutional rights, the section is saved by section 1. Sullivan first attempted to argue that section 33.1 did not apply to him because his intoxication was not voluntary - he ingested the drug in a suicide attempt, not to get high. After the court rejected his argument, he moved forward with an argument similar to that of Chan’s. Ontario Court of Appeal Given the similarities between these two cases, two men who became “automatons” after ingesting psychedelic drugs, committed violent crimes and are now challenging their convictions on the basis that section 33.1 unconstitutionally deprives them of the non-mental disorder automatism defence, the appeals were heard together. The ONCA, in a 3-0 decision, struck down section 33.1. In establishing the prima facie breach of Charter rights, the court identified three infringements: the voluntariness breach, the improper substitution breach and the mens rea breach. The voluntariness breach had been discussed previously. The improper substitution breach of section 11(d) refers to section 33.1 substituting voluntary intoxication for the mens rea element - it presumes that if someone voluntarily gets drunk/high and commits a crime, then they satisfy the mental requirement. This in violation of a defendant’s section 11(d) right to be presumed innocent until proven guilty. In R v Creighton, the constitutional minimum of fault level for criminal offences is penal negligence which is a “marked departure from the standard of a reasonable person.” While the Crown purported that section 33.1 meets this minimum stand of penal negligence, it is difficult to establish foreseeability between voluntary intoxication and violence. In reevaluating section 33.1 with the Oakes test, the ONCA came to the conclusion that the law fails at minimal impairment and proportionality. Lessons learned This incident has been an eye opening experience. It is clear that regardless of how reputable a news outlet may be, critical reading and research are musts. Although the decision can impact sexual assault cases, as automatism triggered by self-intoxication is now a valid defence, the defence of automatism is rarely raised and even more rarely is successful. You can read the decision here: https://www.ontariocourts.ca/decisions/2020/2020ONCA0333.htm By: Veena Ganesarasa Social distancing has shown to be an effective tactic at flattening the curve across jurisdictions. However, persuading entire populations to abandon their daily lives and routines to isolate in their homes is not an easy feat. Rather than solely relying on public service announcements to convince citizens to respect stay-at-home orders, the government has relied on fines and charges as enforcement mechanisms. Fines & charges The fines are administered through city by-laws, meaning that there isn’t standardization across the country for violating stay-at-home orders. Cities have no constitutional status - they are “creatures of the state” or the creating province. The powers that cities have are flowed through to them by their respective provinces. The provinces are enforcing their stay-at-home orders through public health acts. If a law in pith and substance pertains to their constitutional power over healthcare and its criminal law implications are incidental (as criminal law falls solely within the federal jurisdiction), then the law can still be deemed constitutional. The stay-at-home orders likely fall under civil rights. While Prime Minister Trudeau has publicly stated the possibility of implementing the Emergencies Act to enforce the stay-at-home orders, the government has yet to do so - likely due to the high controversiality of the Act. The fragmented regulatory environment, owing to the provinces and cities spearheading enforcement, combined with the need for timely action, raise concerns about inconsistencies. First, the amount and administration of fines vary depending on the city. In Toronto, fines can range from $750 to $10,000 for individuals and up to $10 million for businesses. These are issued by police officers. Originally in Montreal, infractions were reported by police officers and it was within the discretion of Crown Prosecutors to charge the individuals between $1,000 to $6,000. By early April, Montreal modified its approach, authorizing police officers to lay charges. The range in fine amounts gives law enforcement considerable discretion in charging. Second, there are differences in what is considered a violation of the stay-at-home orders. In Calgary, only those who were blatantly in violation of the stay-at-home orders, for example street preachers, have been charged. In contrast, Melissa Leblanc of Montreal was fined $1,546 for having friends visit her for her birthday even though they were in their cars, maintaining the advised 2 metre distance. These jurisdictional differences in what is considered a violation seem arbitrary given that stay-at-home orders fall within the scope of criminal law, as they satisfy the Margarine Reference triple P test for criminal law. According to the Margarine Re, a law is deemed to be a criminal law when it has a Prohibition, Penalty (fine, imprisonment) and a Public Purpose. The stay at home order constitutes a prohibition on certain activities, accompanied with penal sanctions, for a public purpose. As such, there seems to be some rationale in establishing a national standard for the criminal sanctions associated with violations of stay-at-home orders. Furthermore, the laws around violations are quickly changing within jurisdictions as cities and provinces are trying to respond to the progression of COVID which creates confusion around what is lawful. As Abby Deshman from the Canadian Civil Liberties Association explains “ultimately when the law is unclear it’s left up to frontline law enforcement to decide who and when and how they will enforce those vague provisions and that opens the door to discriminatory enforcement and arbitrary decision-making.” Impact on minorities Mapping the Pandemic, a project by Alex Luscombe and Alexander McClelland from the University of Toronto, plotted reported infractions between April 4-13 which they collected from media articles, police releases and social media posts. Their study shows that the ticketing disproportionately affects individuals who do not have the ability to comfortably self-isolate due to their living conditions or have not been effectively informed about the spread of COVID-19. Given the systemic barriers faced by people of colour in housing, employment and various aspects of life, it takes no stretch of imagination to visualize who these individuals are. Privacy On April 6th, the Ontario government announced that they will be sharing information on COVID-19 positive individuals with first responders, including police, firefighters and paramedics. This information includes the names, date of birth and addresses of the patients. The CCLA states that this increased access to healthcare information, which has traditionally been heavily protected, raises concerns for privacy. As a greater number of individuals are now accessing this information, there is a heightened risk of privacy breaches and hacking. As CCLA recognizes, the benefits of this increased access are not clear given that testing information is often outdated. What is the public policy rationale behind the expansion of access if the benefits do not warrant it? So what? From reviewing the changing to policing and enforcement in light of COVID, it has become evident that it is imbued with vagueness and uncertainty. There needs to be change in the regulatory environment to make the rights and obligations of citizens clear. By: Veena Ganesarasa |
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