Supreme Court of Canada –  1 S.C.R. 207
This case completes Gladue, delivered the year before.
While Gladue establishes the criteria to consider when determining the sentence for an aboriginal offender, Wells explains that when the infraction is very serious and that deterrence is needed, the appropriate sentence might be the same whether the offender is Aboriginal or not
…the more violent and serious the offence, the more likely as a practical matter that the appropriate sentence will not differ as between aboriginal and non-aboriginal offenders, given that in these circumstances, the goals of denunciation and deterrence are accorded increasing significance. (par. 42 of the decision).
Is incarceration a justified sentence for an aboriginal offender, when denunciation and deterrence are the main objectives to attain?
Incarceration is justified, even for an aboriginal offender, when denunciation and deterrence are the paramount objectives to attain (unanimous decision).
Between: James Warren Wells
And: the Crown of Alberta
Intervener: Aboriginal Legal Services of Toronto Inc.
In September 1996, Parliament passed the Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, which introduced special consideration for Aboriginal offenders and conditional sentences. With this new legislation, the federal government wanted to decrease the number of prison sentences and to promote restorative justice principles in sentencing. The new provision calls on judges to consider “all available sanctions other than imprisonment… with particular attention to the circumstances of aboriginal offenders.” (section 718,2 (e)).
In November 1996, Wells, of the Tsuu T’Ina Nation (Sacree Reserve) of Alberta was found guilty of sexual assault on another member of his tribe.
In December 1996, he was sentenced to 20 months’ imprisonment and a 10-year firearm prohibition. The pre-sentence report, in which an agent informs the judge of the sentence he sees fit, recommended a conditional sentence since Wells was not at risk to reoffend as long as he abstained from drinking.
Wells: A non-custodial sentence is reasonable.
The Crown: The jail sentence was reasonable in the circumstances at hand.
Alberta Court of Queen’s Bench (1996): The pre-sentence report was sympathetic to Wells. The judge recognized that he was “obliged to bear in mind section 718.2(e) of the Code”, but since there was no evidence of remorse and the accused had committed a major offence, deterrence and denunciation were the most important factors to consider.
Alberta Court of Appeal (1998): The Court maintained the sentence.
L’Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci, Bastarache, Binnie
To meet the requirements of section 718.2 (e) of the Criminal Code, the trial judge must take into consideration all available sanctions other than imprisonment that are reasonable in the circumstances when Aboriginal offenders are involved. If imprisonment seems to fit the case, the judge must then take into account “unique systemic or background circumstances which may have played a part in bringing the particular Aboriginal offender before the courts.” (par. 30 of the decision). If this is the case, the sentence should be reviewed.
Restorative justice (“a sentencing approach which seeks to restore the harmony that existed prior to the accused’s actions”, par. 36 of the decision) should be favoured in cases permitting it since traditional Aboriginal notions of sentencing view restorative justice as a main objective. However, the ultimate responsibility of the sentencing judge is to find the most fitting sentence for the offence and section 718.2 (e) does not change this duty. Section 718.2 (e) does not mandate the sentencing judge to apply restorative justice sanctions in all cases involving Aboriginal offenders. The sentence is maintained.
The Wells case was simply a continuation of the principles elaborated in Gladue and ruled out conditional sentences in cases of sexual assault, but it did not put an end to the controversy over the issue of imprisonment applied to Aboriginal offenders. The government’s intention behind the amendment was to impose a prison sentence on Aboriginal offenders only as a last resort (Pelletier, 2001: 483-486). In the years following the introduction of the Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, provincial incarceration rates have not declined (Roberts, 2000: 42).
By maintaining imprisonment for deterrence motives, the Court in a way asserts that it is the only way to do so (Roach, 2013). However, it does not discards the possibility that imprisonment could be avoided even in the event of a serious crime when collectivity has specifically decided to take on this criminal activity, and the related social issues (Roach, 2013).
For more details, see Gladue.
Pelletier Renée. 2001. “The Nullification of Section 718.2(e): Aggravating Aboriginal Over-Representation in Canadian Prisons,” Osgoode Hall Law Journal 39: 469-489.
Roach Kent. 2001. « Conditional Sentences, Restorative Justice, Net-widening and Aboriginal Offenders » In The Changing Face of Conditional Sentencing. Ottawa : Department of Justice Canada. Online http://www.justice.gc.ca/eng/rp-pr/csj-sjc/jsp-sjp/op00_3-po00_3/p3.html Consulted October 23rd, 2013.
Roberts Julian. 2000. “Discovering the Sphinx: Conditional Sentencing After the Supreme Court Judgement in R. v. Proulx” in The Changing Face of Conditional Sentencing Symposium Proceedings. Ottawa: Department of Justice Canada.
Speech from the Throne, House of Commons Debates, Vol. 1, No. 2 (30 January 2001, 14-15.)