The application of s. 718.2 (e) of the Criminal Code has raised serious concerns about public security in Cree communities and in other First Nations communities in Canada. The main idea embodied in paragraph 718.2 (e) is that the courts should exercise restraint and consider all reasonable alternatives before imposing a sentence of incarceration (imprisonment).
In my view, this section was designed to encourage the courts to look at the alternatives where it’s consistent with the protection of the public and not simply resort to the easy answer in every case. This paragraph must not be taken as a means of automatically reducing the prison sentences of aboriginal offenders nor should it be assumed that an offender is receiving a more lenient sentence because incarceration is not imposed. I believe strict conditions must be imposed on each offender before being released back into his or her community. The courts must ensure that, in each community, an alternative community-based justice must be in place and functional to deal with alternative sentencing matters. If not, releasing offenders back into the community should not be considered.
In 1996, Parliament reformed sentencing under the Criminal Code. In R.v. Laliberte , the court stated that the broad rationale for the reform was to shift sentencing “away from incarceration to both a wider range of punitive and to a restorative model involving more community-based sentencing.” By enacting basic principles such as a restorative approach to sentencing, Parliament effectively said that “imprisonment was to be used as a last resort.”
The judiciary and parliamentarians have acknowledged that Parliament’s reasons for specifically referring to Aboriginal offenders in s. 718.2 (e) was that Aboriginal peoples were and continue to be over-represented in Canada’s penitentiaries. That section currently 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, (emphasis added)
To restore justice means to allow community members to live together in peace and harmony again after a conflict. Without an alternative means of dealing with dangerous offenders who are released back into FirstNations communities, community members are effectively deprived of peace and security of their being. Parliament was simply not aware of these implications of, and the inconsistencies in its penal policies.
In order to alleviate the extra burden that has been placed on First Nations communities as a result of the application of s. 718.2 (e), Parliament must consider providing adequate funding to First Nations to enable them to set up alternative justice systems and to allow them to adequately deal with issues of restitution and community reintegration.
The federal government might also consider setting up more aboriginal healing lodges that would prepare aboriginal offenders for re-integration into their society through spiritual and cultural interventions. These healing lodges would help aboriginal offenders become law-abiding, productive citizens. The lodges would be built with clear visions of creating healthy communities and safe environments.
The application of this paragraph certainly has far-reaching effects. The Supreme Court of Canada first considered the implication of s.
718.2 (e) in Gladue  and Wells . In Gladue, the Supreme Court dismissed Mrs. Gladue’s appeal to have a three-year prison sentence reconsidered. However, during the course of their arguments, the court outlined the approach the Canadian judiciary should take when considering s. 718.2 (e) of the Criminal Code. Judges are to recognize the unique position of aboriginal offenders as people who may have come before the court because of systemic discrimination, of which judges should take judicial notice. Further, there may be types of sentencing procedures and sanctions which are appropriate because of the offender’s aboriginal heritage. While the result of such consideration may be that the jail term for an aboriginal offender is not shorter than that for a non-aboriginal for the same offence, differential sentencing is not precluded. Indeed, “the fundamental purpose of s. 718.2(e) is to treat aboriginal offenders fairly by taking into account their difference” (Gladue).
In the case of Wells, the Supreme Court considered the relationship between conditional sentencing and s. 718.2 (e). The Supreme Court held that judges should consider s. 718.2 (e) only during the third and final stage of sentencing when considering the appropriateness of a conditional sentence. This decision has been criticized because a conditional sentence is itself a form of “imprisonment” even though it may be served in the community. In ruling as it did, the Court precluded consideration of sentences not based on imprisonment (such as discharges or suspended sentences). Nonetheless, this case and Gladue remain the foundation cases for Canadian courts when considering s. 718.2 (e) of the Criminal Code.
The problem with s. 718.2 (e) is that it does not address the cause of high incarceration rates of aboriginal people. It does not attack the root cause of crime in First Nations communities. It also fails to deal with the high unemployment, substance abuse, family instability, among others.
Certain factors that a sentencing judge should consider when deciding the nature and length of sentences must relate to the culpability of the offender. They should be individual factors, not collective characteristics. Anything else denies the victims justice. The root cause of crime must be fully addressed. The rights of the victim should not be put ahead of those of the offenders. If there is no alternative community-based justice system to deal sentencing matters, the length of incarceration term must be carefully considered.
Kenny Loon is a Cree Lawyer currently residing in Ottawa. He works for the Assembly of First ‘Nations as Legal Advisor.