What Role If Any Should The Victim’s Race Play In Sentencing?

From Judge Wayne Gorman R. v. AD, 2019 ABCA 396, October 21, 2019, at paragraphs 24 to 29:

The victim’s status as an Aboriginal woman was not considered by the sentencing judge in sentencing the offender. At the oral hearing, we asked the parties how, if at all, the victim’s status in this regard should affect the sentencing of the appellant. We received and have now considered further written submissions from the parties on this question.

The fundamental purpose of sentencing is to protect society (s 718). Unfortunately, there is clear and overwhelming evidence that, when it comes to protecting Aboriginal women from violence and discrimination, more needs to be done. The homicide rate for Aboriginal women is six times that of non-Aboriginal women, and higher than the rate for non-Aboriginal men. Aboriginal women are almost three times more likely to experience violent victimization than non-Aboriginal women. Compared with non-Aboriginal women, Aboriginal women are almost three times more likely to report being the victim of spousal violence and, compared with non-Aboriginal victims of spousal violence, Aboriginal women are more likely to have experienced spousal violence on more than one occasion.

The sad fact is that Aboriginal women are disproportionately affected by domestic violence and violence in general and this reality should inform the sentencing process if there is to be any hope of achieving the fundamental purpose of sentencing and meeting the objectives set out in section 718 of the Criminal Code, which include denunciation and deterrence.

Consideration of the victim, in this case the fact that she was an Aboriginal female, does not negate or otherwise trump the necessity of courts, when sentencing offenders, paying particular attention to the circumstances of Aboriginal offenders (s 718.2(e)). Rather, it requires that, in having regard to the circumstances of Aboriginal offenders, the courts do not discount the lives of or harms done to Aboriginal victims of crime, their families and their communities (R v Whitehead, 2016 SKCA 165 (CanLII) at para 83, 2017] 5 WWR 222, citing Sanjeev Anand, “The Sentencing of Aboriginal Offenders, Continued Confusion and Persisting Problems: a comment on the decision in R. v. Gladue” (2000) 42 Can J Crim 412 at 418). The appropriateness of considering not only the nature of the victim, but the broader community, was recognized in R v Williams, 2011 BCCA 194 (CanLII) at para 9, 303 BCAC 236, where the Court of Appeal, in upholding the sentence imposed on an Aboriginal offender who sexually assaulted an Aboriginal girl, observed that “[t]here is much to be said for the sentencing judge’s concern for the protection of Aboriginal victims such as this child, and for the role of deterrence in the Aboriginal community.”

Considering the circumstances of the victim and the effects of the offence on the community does not mean that the circumstances of the offender, in particular the circumstances of Aboriginal offenders, are disregarded or, as was argued by the appellant in R v Johnny, 2016 BCCA 61 (CanLII), that consideration of the victim’s circumstances effectively disentitles the offender from a meaningful Gladue analysis under s. 718.2(e). What it does mean is that, in arriving at a fit sentence, judges must take into account the circumstances of the offender, the circumstances of the victim and the effect of the crime on the community in which it took place. The fact that a sentencing judge is required to consider one set of circumstances does not mean other circumstances are ignored (see Johnny at para 21).

Taking the circumstances of Aboriginal victims into account in sentencing is consistent with the principles of sentencing, and arguably necessary in order to meaningfully achieve the fundamental purpose of sentencing, namely the protection of the public. The circumstances of both the victim and the offender must be considered as relevant factors and, along with other relevant factors (e.g. aggravating and mitigating), be considered by the sentencing judge to arrive at a fit sentence.

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