One major reason for supporting the nuclear family is its ability to pass on character and cultural traits which are potentially beneficial to society.  While cultures vary in how they express fundamental values such as, honesty, loyalty and hard work, it is critical that no matter the cultural background, the family be stable, non-violent,  and addiction-free and that parents be present for their children.

An example of the difference in cultural traits was revealed in a study dated November 30, 2022, by Corrections Services Canada (CSC), entitled, Ethnocultural offenders in Federal Custody: An Examination of Admission, In-Custody Indicators among Men.  This study revealed just how important cultures can be and raises a host of difficult but important questions relating to indigenous incarceration.

According to the study, Filipino and Chinese Canadians are disproportionately fewer in federal prisons. Typically, these groups serve less than four years for non-violent crimes like drug offenses. Census data shows that Filipino-Canadians comprise about 3% of the general population, but less than 1% of prisoners. Chinese-Canadians comprise 5% of the country, but are less than half a percent of prison inmates. By comparison, Indigenous and Black men are the most overrepresented in prison. The report stated: “while representing three percent of the Canadian public, Black men represented nine percent of men in custody, and Indigenous men represented 5% of the Canadian public, but 25% of the men in custody”.

On inmates re-offending (recidivism), the report states that “Asians were least likely of any prison group to re-offend averaging 19%, whereas, 36% of Black inmates and 40% of Caucasians were recidivists”.  Moreover, recent data from CSC from 2021 shows that Indigenous offenders on conditional release (parole) display lower rates of successful completion of their sentence than non-Indigenous, 44.85% compared to 67.21%.  Also disturbing was the data showing that while overall recidivism rates (defined as someone NOT readmitted to federal custody within 5 years of their sentence expiry date) has decreased over the past ten years (18.62% in 2011 to 12.49% in 2020-21), within the overall number during the ten-year period, Indigenous offenders consistently have higher rates of readmission to federal custody than non-Indigenous offenders.  For example, in 2021, the overall Indigenous recidivism rate was 19.36% (70% for Indigenous men in the Prairie Region) compared to 10.4 % for non-Indigenous offenders.

Why the Difference?

The propensity for criminal activity among a certain segment of the Indigenous population has long been an issue of concern to all Canadians, as such activity represents the waste of human potential of the offender and unnecessary harm to the victims of these crimes, Activists for Indigenous communities argue that the high imprisonment rate has been caused by “colonialism”,  “racism”, “cultural oppression”, “poverty”, and by the experience of abuse in residential schools. It is noted, however, that there is no definitive record of the number of indigenous children who attended residential schools. Many children were educated at schools on reserves where they remained living at home with their families, or never attended school at all.

The problem with recognizing “the problem” is that it has quickly become politicized and captured by the Victim Industry, those who want to explain away the problem with worn out clichés. The fact of the matter is, many people grow up in less than ideal circumstances, and yet do not commit crimes or engage in a lifestyle of criminal activity,  Why this is so appears to be a discussion we are incapable of having without resorting to the oversimplifications of worn out clichés.

By highlighting indigenous victimhood rather than addressing family disparities, legislative and judicial attempts to directly reduce incarceration have backfired spectacularly. Indigenous inmates in federal institutions have increased from 20% of the inmate population in 2008-09 to 28% in 2017-18. This is another blow to the indigenous family, which may be the source of many of the problems experienced by many indigenous offenders.

The 1995 Sentencing Reforms

With any criminal activity, comes the very real possibility of incarceration, and incarceration has become an unfortunate way of life for far too many Indigenous people.  In 1995, partly in response to the over-representation of Indigenous people in Canada’s correctional system (in 1995, Indigenous peoples amounted to some 18% of the total of incarcerated individuals, but only 3% of the total population of Canada), the Liberal government of Jean Chrétien introduced amendments to the Criminal Code which updated the sentencing principles.

Part of sentencing reform was the introduction of two concepts: (1) restorative justice – ss. 718 (e) and (f); and (2) alternatives to incarceration which expressly required the sentencing judge to take into account the “circumstances of Aboriginal offenders” when considering the question of alternatives to incarceration – s. 718.2 (e).  At best, the Criminal Code amendments would allow for a more humane sentencing regime with a greater emphasis on offender re-integration and community safety.  At worse, the sentencing amendments introduced a serious fracture in one of the bedrock principles of the Rule of Law, and that is the equal application of the law regardless of who you are.

The Supreme Court’s Blunder on Indigenous Sentencing

In 1999, the Supreme Court of Canada had the opportunity to interpret ss. 718 (e) and (f) and s. 718.2 (e) of the Criminal Code and the principles governing their application in R. v. Gladue.  While the Court upheld the three-year sentence for manslaughter given to Ms. Gladue, it also took the opportunity to set out factors which a sentencing judge must take into account in applying s. 718.2 (e).  Those factors include: (1) systemic and background factors such as “dislocation and economic development [which] 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”; and (2) the relationship between ss. 718 (e) and (f) (restorative justice) and the application of s. 718.2(e) to give effect to the importance of community‑based sanctions.

In the Court’s unambiguous view, s. 718.2 (e) is remedial and is intended to deal with the continuing crisis of over‑representation of Indigenous offenders in the Canadian criminal justice system.  In doing so, the Court expressly recognized that culturally attuned sentencing for Indigenous offenders has a role to play in addressing this crisis.  While the Court also made clear that this ruling did not excuse an Indigenous offender and that they must still be held accountable through potentially another process, i.e., the indigenous restorative justice system, its ruling merely begs the question: is the individual offender being sentenced or their “people and culture”?

Courts Double-Down on Gladue

In the aftermath of Gladue, courts have continually enlarged the envelope of s. 718.s (e)’s application.  In 2012, the Supreme Court held that the principles it had set out in Gladue were applicable to an Indigenous offender being sentenced for a breach of a Long Term Supervision Order (LTSO),  In doing so, as noted by Justice Rothstein in his dissent, the court failed to address the issue of the sentencing of Indigenous offenders who have been found to be long‑term offenders and have been found guilty of breaching a condition of an LTSO; nor had it taken account of the difference between the objectives and requirements of LTSOs for long‑term offenders who abide by the conditions of their LTSOs and the objectives and requirements of sentencing long‑term offenders who have breached a condition of their LTSOs.

In R. v. Kehoe, a judgement of the British Columbia Court of Appeal released 3 January 2023, appears to contort logic into new shapes, as the Court held that s. 718.2 (e) applied to an Indigenous offender even where there was a disconnect between an offender from their indigenous heritage; such a disconnection did not warrant a limited application of the Gladue factors in determining sentence.

Evidence was submitted that Mr. Kehoe had been “disconnected” from indigenous community culture and had been raised in difficult circumstances having been raised by an indigenous mother and a non-indigenous stepfather, after his non-Indigenous biological father abandoned the family.  Both Mr. Kehoe’s mother and stepfather led a “partying lifestyle” with his stepfather being involved in the drug trade.  Neither Mr. Kehoe, his mother nor his grandparents attended residential schools.  The evidence also showed that Mr. Kehoe grew up in a dysfunctional household and that his “substance abuse” and depression were related to his non-Indigenous stepfather’s behaviours, not his mother’s background.

The Court of Appeal, however, concluded, that Canada’s colonial history and assimilationist policies had nonetheless played a role in bringing Mr. Kehoe before the court that justified the full application of the Gladue principles.  In doing so, the Court concluded “Mr. Kehoe to have a significantly reduced level of moral blameworthiness…systemic and background factors contributed to Mr. Kehoe being raised in a dysfunctional environment which in turn contributed to his substance use disorder and criminal offending.”   The B. C Court of Appeal is offering a classic example of “Blame ‘the System’” to Excuse the Offender” jurisprudence!

The upshot of the Court’s decision was to reduce Mr. Kehoe’s original sentence of 5 years, less time served, to 4 years less time served for the rather serious offence of aggravated assault.  The assault was unprovoked, and Mr. Kehoe’s victim had been stabbed twice—stab wounds puncturing the victim’s lung and lacerating his liver.  If not for surgery, the victim would have died, and Mr. Kehoe would have been facing at least a 2nd Degree murder charge.

Perhaps it would have been more sensible if the Court had looked to the unfortunate circumstances of Mr. Kehoe’s upbringing and his family life rather than the fact that he was part aboriginal.  This upbringing obviously was likely the key contributing factor to Mr. Kehoe’s wrongful action, rather than merely being of an indigenous background.

The sad fact is that Mr. Kehoe’s family life is not uncommon to the indigenous community.  A recent Statistics Canada study on Indigenous victimization, Victimization of First Nations people, Metis and Inuit in Canada, July 19, 2022, documents that native children are far more likely than other Canadian children to have experienced violence at the hands of an adult, to have been sexually assaulted or to have had their basic needs unmet.  Twice as many native Canadians as non-natives say they were unloved or unwanted by their parents.  One-third of all Indigenous respondents report they’ve witnessed a parent act violently towards another adult.  Indigenous adults are also more than twice as likely to be victims of intimate partner violence as non-Indigenous Canadians.  Further, a mountain of evidence illustrates how childhood adversity or maltreatment can lead to criminal or antisocial behaviour in adulthood no matter your skin colour or ancestral background. This seems to be the missing factor in dealing with indigenous matters.

All Canadians have an interest in breaking this terrible cycle of violence and waste.  However, treating violent adult Indigenous offenders more leniently than others has not proven to be an effective solution.  Instead, it is only putting individuals and communities at greater risk.

The Continuing Tragedy of s. 718.2 (e) and Gladue

Liberal “well-meaning” legislation in the guise of the 1995 sentencing reforms, and liberal “well-meaning” judges have only made matters worse for all Canadians – especially indigenous people.

The Supreme Court of Canada has acquired a well-earned reputation of making superficial and trendy laws and decisions, not founded upon established objective facts, well-reasoned, legal argument or on analysis of legal principles.  Instead, the Court often reaches conclusions based on politically correct assumptions and on the basis of ideological perspectives divorced from reality.  Both s. 718.2 (e) and the Gladue and its progeny are prime examples of this propensity.  While s. 718.2 (e) and Gladue may have been well intentioned, in practice they have not reduced the incarceration rate of indigenous people nor made their communities and their lives any safer.

The harmful effect of the Gladue mentality is evidenced in the horrific tragedy that occurred on the James Smith Reserve, and Weldon, Saskatchewan, on 4 September 2022.

In that case, 10 members of the community were stabbed to death, and 18 were wounded—later offender Sanderson’s brother, Damien, was also found murdered a day after the initial attacks.  This tragedy was carried out by an Indigenous male, Myles Sanderson, an offender with a long criminal record (59 convictions) with a propensity for violent crime. Eventually, Sanderson, died after going into “medical distress” after his arrest by the RCMP.

Sanderson, however, did not grow up in the community, but in an urban centre in an unfortunate environment of physical abuse, and domestic violence. His parents separated when he was nine years old, and he lived sometimes with his grandparents or his parents.  He never attended a Residential School.  By his twenties, Sanderson was a drug dealer and a convicted criminal.  Prior to his killing spree, he had been charged with 59 crimes including two attempted murders, and 15 assaults – some of which were domestic violence against his common law spouse.   At the time of the killings, Sanderson was finishing serving a five year sentence for assault, robbery, mischief, and making threats when he was released at his statutory release date in August of 2021, at the 2/3’s point of his sentence without having to apply for parole.

While still serving the remainder of his sentence, his statutory release was suspended (just three months after his release) in November 2021 for violation of a condition of his release, namely living with his ex-spouse in contravention of his release conditions.

On February 1, 2022, a panel of the National Parole Board decided to cancel the November suspension and re-instate his release with simply a reprimand in his file. The Parole Board’s 10 page decision, the Board listed his criminal background and high risk, and the failure of restorative justice, but concluded, considering his indigenous background, and the intergenerational impact of residential schools, (which he had never attended) neglect, exposure to familial substance abuse, his own substance abuse, exposure to domestic violence during his childhood, and the loss of his culture and spirituality that he should be released to spend the remaining term of his sentence in the community.

If the Parole Board had not unquestioningly applied the mentality of the s. 718.2 (e)/Gladue principles in this case, it is arguable that twelve individuals would still be alive, and eighteen others uninjured.

Time to Validate the Indigenous Sentencing Model

It has been almost 30 years—more than a generation, since the sentencing principles were amended in the Criminal Code and as such, it is fair to validate the experiment.  In other words, did the 1995 amendments and their subsequent interpretation lower Indigenous representation in the criminal justice system?  Are Indigenous offenders better re-integrated into society?  Are indigenous communities safer?

In 1995, Indigenous peoples amounted to approximately 18% of the total of inmates, but were only 3% of the total population of Canada, In 2017-18 Indigenous inmates in federal institutions rose from 20 percent of the total inmate population in 2008-2009 to 28 percent in 2017-2018, while representing only 4.1 percent of the overall Canadian population.

In January 2020, the Correctional Investigator of Canada, Dr. Ivan Zinger, stated that the most recent information indicated that the number and proportion of Indigenous individuals under federal sentence has reached new historic highs.  Dr. Zinger stated:

Four years ago, my Office reported that persons of Indigenous ancestry had reached 25% of the total inmate population.  At that time, my Office indicated that efforts to curb over-representation were not working.  Today, sadly, I am reporting that the proportion of Indigenous people behind bars has now surpassed 30%.”

That is while accounting for just 5% of the general Canadian population, Indigenous offenders represent over 30% of the federal prison population.  Many of those incarcerated will be repeat offenders given the high recidivism rate among Indigenous offenders.

So, what indeed has the 1995 Criminal Code amendments and their judicial interpretation produced?  Did the Supreme Court get it right in Gladue or Ipeelee?  Is the B.C. Court of Appeals merely doubling down on a losing approach in Kehoe?

The mentality underlining both the 1995 amendments and the Courts’ subsequent interpretation begs credulity.  Far from achieving their objective(s), they do nothing but legitimize racism and race-based sentencing creating a two-tier justice system and institutionalizes a culture of low expectations.  In addition, the whole 718.2 (e) regime arguably violates one of the fundamental tenets of the Rule of Law, the equal application of the law.  In doing so, s 718.2 (e) merely acts to increase division in an already deeply divided Canada.

The problems of indigenous communities or offenders are not susceptible to a “quick legislative fix”. Moreover, trying to deal with the problems at the sentencing end of the criminal justice process is to grab the wrong end of the stick.  The noticeable absence of a stable family environment runs through the entire sad legacy of s. 718.2 (e) cases.  Promotion of strong families would be a better place to effect meaningful and lasting change for the better, rather than in continuing with the mistaken and dangerous mentality of s. 718.2 (e) and Gladue. Our indigenous people and their families matter. It’s time we take a fresh approach in dealing with the problems of our indigenous people.