In the early evening of September 16, 1995, Jamie Tanis Gladue was celebrating her 19th birthday. She and her husband, Reuben Beaver, who was then 20, were drinking beer with some friends and family members in a townhouse complex in Nanaimo, British Columbia. Gladue suspected that her husband was having an affair with her older sister, Tara. During the course of the evening she voiced those suspicions to her friends. Gladue was obviously angry with Beaver. She said, “The next time he fools around on me, I’ll kill him”. Gladue 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.
Gladue’s sister, Tara left the party, followed by Beaver. After he had left, Gladue 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. Gladue 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?”
Mr. Gretchin saw Gladue 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. Gladue had stabbed Beaver once in the left chest, and the knife had penetrated his heart. As Gladue went by on her return to her apartment, Mr. Gretchin heard her say, “I got you, you fucking bastard.” Gladue was described as jumping up and down in joy. Gretchin said Gladue did not appear to realize what she had done. At the time of the stabbing, Gladue had a blood alcohol content of between 155 and 165 milligrams of alcohol in 100 millilitres of blood.
On June 3, 1996, Gladue was charged with second degree murder. After the stabbing, she 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.
On February 11, 1997, following a preliminary hearing and after a jury had been selected, Gladue entered a plea of guilty to manslaughter. In his submissions on sentence at trial, Gladue counsel did not raise the fact that his client was an aboriginal offender but, when asked by the trial judge whether in fact Gladue was an aboriginal person, her lawyer replied that she was Cree. When asked by the trial judge whether the town of McLennan, Alberta, where Gladue 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 Gladue 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.
Gladue was sentenced to three years’ imprisonment and to a ten-year weapons prohibition. In his reasons, the trial judge took into account several mitigating factors. Gladue 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. Further, Gladue 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. Gladue showed some signs of remorse and entered a plea of guilty.
On the other hand, the trial judge identified several aggravating circumstances. Gladue 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 Gladue intended to harm the deceased. Further, Gladue was not afraid of the deceased; indeed, she was the aggressor.
The trial judge quite properly 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 Gladue 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. (the latter meaning that she would be under house arrest during the three years)
The trial judge noted that both the Gladue and the deceased were aboriginals, 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. Let me say from the onset, I agree with the judge’s conclusions he reached about the mitigating and aggravating circumstances. In fact, when the matter later went to the Supreme Court of Canada, that court’s conclusion about the seriousness of the crimes was as follows;
“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.” unquote
Gladue 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 in this essay, namely whether the trial judge failed to give appropriate consideration to Gladue circumstances as an aboriginal offender.
Canadians have long recognized that aboriginals have been badly treated in Canada and as a result, they had and many still have difficult upbringings and were and are still unsuccessful in obtaining meaningful employment when they grew and grow into young adults. I had a chance to see this when I observed many of them in Winnipeg in the 1950s wandering the streets begging for handouts because they were unemployed. I remember a particular incident in Kenora, Ontario when I was the senior boy’s supervisor in an Indian residential school in 1959. One of our brightest boys left the school when he was sixteen and one day I saw him begging for handouts on one of the streets in Kenora. When I asked him why, he told me that no one would give him a job. Earlier, I saw girls in Winnipeg, Manitoba who had previously been at that school who were offering their bodies as prostitutes. They too were unemployed.
Because of the difficulties that aboriginals had (and in some instances, still have) while growing up. Canadian parliamentarians passed a law that is found in the Canadian Criminal Code. I am referring to section 718.2(e) which not only 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 the unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and 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.
The Supreme Court of Canada had addressed this issue in the Gladue appeal. It said in part;
“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?” unquote
I have a problem with respect to this particular aspect of our law in that it benefits only aboriginals and no one else. There are non-aboriginal people in Canada who have had terrible childhoods in Canada and in other countries but there doesn’t appear to be any legislation that singles them out for special consideration with respect to sentencing. Further, it conflicts with section 4.1(b) of the Canadian Charter or Rights and Freedoms that states;
“It is hereby recognized that in Canada, there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely, the right of the individual to equality before the law and the protection of the law.” unquote
It seems to me that whatever law was included in the Criminal Code that addresses the special circumstances with respect to what aboriginals had undergone or what they are currently undergoing with respect to their upbringing; should apply to all persons who are being sentenced before the court and not just to aboriginals.
Further, killing a human being; be it first degree murder, second degree murder or manslaughter, is a very serious crime. As I see it, no special consideration should be given to anyone who takes a human life irrespective of their backgrounds.
The Supreme Court dealt with that matter by stating in the Gladue decision;
“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.” unquote
This is because aboriginals know the difference between right and wrong and the consequences of evil deeds just as everyone else does. The Supreme Court of Canada in deciding the appeal of Gladue said in part;
“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.” unquote
Gladue’s appeals of her sentence to the British Columbia Court of Appeal and the Supreme Court of Canada were dismissed however, she was released from prison after serving only six months. Considering the seriousness of her crime and the circumstances under which she acted, I think her early release was far too premature. Six months imprisonment for killing a human being because the victim’s killer is angry is not appropriate at all.
Here is another case to cause my readers to ponder about the wisdom of our parliamentarians who passed section 718.2(e) into law. Admittedly, the crimes weren’t as serious as the crime Gladue committed but the sentences make you wonder about the wisdom of those parliamentarians.
Holly Ann Peters (an aboriginal) and another woman were acquaintances. They had fought in the past, but seemed to have reconciled their differences until they ran across each other, along with other woman’s boyfriend, at a bar somewhere in Canada on March 8, 2008. Holly Ann had been drinking and took offence at something the other woman said. Holly Ann pushed her. The scuffle escalated and the boyfriend intervened to attempt to separate the pair. Peters began punching the boyfriend’s head. She then swung the beer bottle she was holding at the woman’s head, breaking the bottle with the blow. She then followed through on her swing in a downward motion with the broken bottle, causing lacerations to the other woman’s face that required 21 stitches. A year after the attack the victim still suffers continuing pain, headaches, left eyelid muscle spasms and facial asymmetry.
Holly Ann’s second assault was against her mother. That assault took place while Holly Ann was on probation for the assault on her former boyfriend.
Holly Ann is a chronic alcoholic and has also used illicit drugs including ecstasy. She has trafficked in crack cocaine. Before she became an adult, Holly Ann had two prior convictions and a conditional discharge. One of the convictions and the conditional discharge were for assault.
At her trial for the assault on her friend’s boyfriend, the Crown asked for a term of imprisonment but the sentencing judge decided that a period of incarceration was not the appropriate disposition. He concluded:
“In the end result, I am not satisfied that a period of incarceration is necessary either for the purpose of expressing denunciation or deterrence in this case. Further, a period of incarceration manifestly fails to achieve the restorative purpose that is of particular importance in the case of aboriginal offenders.” unquote
As can be seen, in making his decision, the judge took into serious consideration the fact that Holly Ann is of aboriginal heritage. In so doing he relied on the decision of the Supreme Court of Canada in its Gladue decision which suggested that sentencing of aboriginal offenders should be designed to limit the serious problem of over-representation of aboriginal people in prisons and to encourage sentencing judges to have recourse to a restorative approach to sentencing.
The Court of Appeal recently upheld the decision in Holly Ann’s case, saying that the sentencing judge was within his jurisdiction to decide as he did and that he made no legal error. Of interest though is the dissent of Justice Watt, where he says:
“The offence the respondent committed here was a serious violent offence. And not the first serious violent offence in which the respondent has participated. Gladue teaches that generally, as a matter of practical reality rather than sentencing principle, particularly violent and serious offences will result in imprisonment for aboriginal offenders as often as for non-aboriginal offenders … It is all the more so for recidivists.” unquote
Imprisonment is not always the right way to deal with aboriginal offenders but I agree with the further comments of Justice Watt who said in his dissent;
“In cases of unprovoked violence against another person, the predominant sentencing objectives are denunciation and deterrence.” unquote
If punitive sentences are not given to aboriginals who commit serious crimes and/or who show no sign of rehabilitation, there is an impression that the judges hearing the cases do not really care about the crimes or the victims. Admittedly, aboriginal offenders are entitled to have their heritage and needs considered, (just as every offender is entitled to the same consideration) however, a failure to treat a serious violent crime as worthy of a punitive sentence in some way belittles the concept of justice, not to mention both the victim’s death or suffering along with the aboriginals impressions of themselves.
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