The Justice System and Aboriginal People
The Aboriginal Justice Implementation Commission
Alternatives to Incarceration
Sentencing is the final step of judicial involvement in the justice system and, in many respects, it is the most important and difficult one. Its importance lies in the obvious impact on the offender, the victim, families and the community. Its difficulty lies in the necessity of balancing many factors, including the human factors and the protection of society.
In order to accomplish these various aims Canadian criminal law accords the courts extremely wide latitude in sentencing. The Criminal Code, for example, does not prescribe specific sentences for most offences. Rather, it sets out a maximum penalty or a range of penaltieswhich includes not only incarceration, but a variety of community sanctions such as fines, community service and suspended sentences.
Given the range of options that judges have before them and the obvious importance of passing sentences which are appropriate to specific circumstances, one might expect to discover that Canadian judges are imposing a wide spectrum of creative sentencessentences which serve to rehabilitate the offender, ease the pain or loss suffered by the victim of a crime, restore social harmony and demonstrate societys disapproval of criminal behaviour. Yet, the single most used sentence for those convicted of indictable offences is the one which is the most expensive, most punitive and least effective: incarceration.
During the course of our Inquiry, we had the opportunity to visit all the major correctional facilities in Manitoba. We heard from both the staff and the inmates. We also had an opportunity to consult with experts in the field of corrections and to consider a wide range of alternatives to the approaches currently adopted by our correctional system. Throughout our examination, one fact became abundantly clear: Manitoba relies too heavily on incarceration. As a direct result of Aboriginal people being over-represented in entering our court system, Aboriginal people are over-incarcerated, as well.
Large numbers of Aboriginal people are taken from their families and communities to be locked away in correctional institutions. In these institutions, which are costly to build, maintain and operate, there is little in the way of constructive programming. As a result, the institutions are not effective in rehabilitating or deterring offenders. Not surprisingly, the system is viewed by Aboriginal people as a foreign one, and there is much bitterness about the unfair way that Aboriginal people and Aboriginal communities are treated. The price that Aboriginal families pay, in terms of family breakdown, loss of income and educational opportunities, cannot be underestimated.
The emphasis on incarceration also ignores the needs of the victims of crimes, and the possibilities of reconciling offenders with victims and the broader community. Courts have the power to order restitution and community service, and we believe that for many people who are currently incarcerated these sorts of sentences would have been more appropriate. These sanctions are not only less expensive than incarceration, but they hold the promise of healing communities, rather than simply punishing offenders. They also provide a clearly visible sanction within the community.
We believe that current sentencing practices continue because the Canadian legal system has no clearly articulated philosophy of sentencing. Rather than taking into consideration the specifics of the case, the culture and background of the offender, and all the available sanctions, courts are inclined to impose sentences simply because they are in keeping with previously imposed sentences. To the extent that there is a philosophy of sentencing, it is one that denies the relevance of culture, insists on incarceration for certain offences, regardless of the particular circumstances, and discounts the effect of community sanctions.
As a result, court decisions seldom reflect the values, beliefs or traditions of Aboriginal communities. Sentencing is seen by Aboriginal people as an exercise conducted for the often mysterious purposes of the non-Aboriginal justice system.
What is needed is a philosophy of sentencing that would make less use of correctional facilities, strengthen the use of community sanctions, address the needs of victims and offenders, give proper consideration to cultural factors when formulating sentences and allow the community to play a meaningful role in the development and monitoring of sentences.
In this chapter we examine the reasons behind the current sentencing practices, and make proposals for a new approach to sentencing. TOP
Current Sentencing Practice
Canada inherits much of its legal tradition from Britain. This tradition, which still informs Canadian practices, calls for sentences to be crafted by the courts in order to achieve several purposes. Sentences in the Canadian legal tradition do not have, nor have they ever had, the punishment of the offender as their sole purpose. If this were the case, it would be quite simple to develop and use a range of harsh punishments reminiscent of centuries past. In the Canadian system of law, however, it is asserted that punishment must be balanced with other considerations that will contribute to the rehabilitation of the offender and the protection of the community in the long term.
Typical of the legal writings on the subject is the following quote from Halsburys Laws of England:
To achieve these aims, Canadian courts have at their disposal a wide variety of options. The Criminal Code provides for a maximum penalty or a range of penalties, and the sentencing judge is expected to take the particulars of each case into consideration before deciding on an appropriate sentence. The maximum sentence is, however, normally is reserved for the most serious offenders and the most serious offences. In most instances, the sentences prescribed by the courts are less than the maximums allowed by the statutes. The options available to a judge include:
This list demonstrates that the concept of sentencing alternatives is well ingrained in Canadian legal traditions. TOP
Despite Canadian legal traditions, the discretion that is available to the courts and the availability of alternatives to incarceration, there appears to be remarkably little creativity in Canadian sentencing practices. The most prominent feature of Canadian sentencing practices is the over-reliance on jail. It often appears that judges do not feel they are confronted with a continuum of sentencing options, but, rather, a dichotomy: incarceration, which is viewed in some ways as a "real" sentence, or some form of community sanction, which is viewed as a form of "leniency."
In 198788 there were 44 federal correctional institutions in Canada. Over 10,000 inmates were incarcerated in these facilities at any one time. Provincial facilities held an additional 16,000 inmates.2 Of those convicted of indictable offences in Canada, it is estimated that 43% to 55% receive a jail sentence.3
Offenders who are sentenced to two years or more in jail must serve their time in federal penitentiaries, while those who receive sentences of less than two years serve their time in provincial institutions. Stony Mountain Institution is the only federal penetentiary in Manitoba.
Our incarceration rates appear to be out of keeping with other countries. In Canada about 108 persons per 100,000 inhabitants are sent to jail each year. In Australia the comparable figure is 67.6 per 100,000 inhabitants, in Norway it is 44.9, and in the United Kingdom it is 96.5 (in the United States it is 286.8).4 These disparities have led many others, including the Canadian Sentencing Commission, to conclude that incarceration is over-utilized in Canada.5
According to the Canadian Centre for Justice Statistics, in 198889 Manitoba sentenced more people to jail (15,341) than Saskatchewan (12,045), and more than British Columbia (14,635).6 Not only are the number of jail admissions high in Manitoba, the sentences are also harsh. Manitoba had a lower proportion of intermittent sentences compared to total number of admissions than any other province in Canada (4%, compared to the national average of 12%).7 Manitobas median sentence length was the longest in Canada, two and a half times more than the national average, with half of all sentences being 75 days or more, compared to the national average of 30 days.8
When one looks at why people are being sent to jail, one discovers that, according to the 198889 Annual Report of the Manitoba Attorney Generals department, only 20% of the 4,192 convicts held in Manitobas provincial correctional institutions in 1988 were sentenced for major offenceshomicide, sexual offences, assaults, dangerous substance/weapons offences and robbery. A further 33% were sentenced for driving offences, especially drunk driving.
Forty-five per cent of young offenders sent to jail in that year were there for offences against property. Another 7.6% were there for committing crimes against themselves such as drug possession, sexual immorality and intoxication in public, while 26.5% were there for victimless crimes such as failure to appear in court. Fully 79%, or 2,100 of the 2,658 young offenders in custody in 1988, had not committed a crime against the person.
Aboriginal people, in particular, are served poorly by the current practices. Aboriginal people comprise more than 55% of admissions to correctional institutions in Manitoba. A 198788 study prepared by the Canadian Centre for Justice Statistics revealed that Aboriginal offenders accounted for approximately 18% of all sentenced admissions to provincial correctional institutions. The percentage ranges from less than 10% in Newfoundland, Prince Edward Island, Nova Scotia, New Brunswick and Ontario, to over 50% in Manitoba, Saskatchewan, the Yukon and the Northwest Territories. In federal institutions, Aboriginal offenders made up 11% of all admissions.9 Our own research indicates that the corresponding figure at Stony Mountain, the only federal penitentiary in Manitoba, was 42%. TOP
Aboriginal And Non-aboriginal Inmates
Total Admissions to Correctional Institutions in Manitoba, 1989
Source: Manitoba Department of Justice and the Correctional Services of Canada.
1. Headingley figures include Bannock Point; The Pas figures include the Egg Lake Camp.
2. The figures for Milner Ridge, Stony Mountain, and Rockwood are lower than their actual populations because, in the case of Milner Ridge, many of its inmates are transferred from other institutions and only appear in the admission statistics of their former institutions, and in the cases of Stony Mountain and Rockwood, many of the inmates were admitted in years previous to 1989 but remain in population serving their sentences. A single day count on October 1, 1990 showed 44 Aboriginal and 74 non-Aboriginal inmates at Milner Ridge, 25 Aboriginal and 43 non-Aboriginal inmates at Rockwood, and 156 Aboriginal and 186 non-Aboriginal inmates at Stony Mountain.
Our own studies have revealed that the official statistics on Aboriginal admissions underestimate the true extent of Aboriginal over-representation. Most systems rely on self-identification at time of admission. Our staff, through interviews with inmates, concluded that Aboriginal inmates often do not identify themselves as being Aboriginal. As a result, the true rate of Aboriginal incarceration is higher than the official statistics indicate. The disproportionate incarceration of Aboriginal people is a growing phenomenon. In 1965, 22% of the prisoners at Stony Mountain were Aboriginal; in 1984 the figure was 33%. By 1989 the figure was up to 46%.
When one considers the high number of admissions relative to the size of the Aboriginal population, very serious concerns are raised. Indeed, one study done in Saskatchewan in the mid-1970s estimated that, compared to the general population, Indian men were 37 times more likely to be incarcerated, while Indian women were 131 times more likely to be incarcerated. 10
The over-use of incarceration for Aboriginal offenders concerns us for a number of reasons:
The original philosophy was that a correctional institution would provide a sanctuary where offenders could contemplate their wrongdoing and reform their behaviour. Indeed, the term "penitentiary" is derived from the word "penitence." History has shown, however, that this objective has not been achieved.
Countless studies have shown that jails do not rehabilitate offenders.11 Moreover, researchers have concluded that "there is no evidence that imprisonment works as either a specific or general deterrent."12 While it is true that jails remove offenders from the community, this is a temporary reprieve, since the vast majority of offenders are released and return to the community. A Canadian parliamentary subcommittee concluded:
High recidivism rates provide convincing evidence that correctional institutions are not effective. Between 1975 and 1985, for example, the Canadian Sentencing Commission found that 60% of those released from federal penitentiaries on mandatory supervision subsequently were readmitted to jail, while 49% of parolees were readmitted. Not surprisingly, on the basis of this and other data, the commission concluded that there was little evidence to suggest that incarceration was effective in reducing crime.14 In fact, some studies have suggested that imprisonment actually can increase the likelihood of subsequent reoffending.15 There is no doubt in our minds that this is the case.
Given the ineffectiveness of the current system, we believe that the apparent public demand for longer sentences requires a thoughtful response. While we can understand the anger at crime that motivates this reaction, we know that longer sentences will not reduce crime. We are firmly of the view that it is more important to determine what has caused a person to act in an inappropriate way, and to deal with the cause of the behaviour, than it is to sentence a person for longer periods to satisfy a public demand for punishment or retribution. As well, we fear that a response to public demands for longer sentences will have a more adverse impact upon Aboriginal people, who are charged and convicted at higher rates, but for less serious crimes, than upon non-Aboriginal people.
Developing Dependency in Offenders
Rather than encouraging reform and rehabilitation, the crowded, highly regimented and imposed nature of correctional institutions often creates bitterness, anger and a desire to "get even." In fact, research has shown that institutions "tend to be characterized by high levels of violence, punitiveness by correctional officers, strong anti-social sentiments among prisoners, tolerance of coercive homosexuality, and relatively poor social relations with both staff and peers."16 Moreover, because correctional institutions bring together the novice and the career criminal, as well as offenders from a wide variety of backgrounds, they provide opportunities for antisocial values and skills to be learned and promoted.
Correctional institutions do not teach responsibility, but dependency. Those who have been institutionalized have had every aspect of their lives regulated. Therefore, they are ill-equipped to cope in society without a sustained period of reintegration, and some, it is argued, actually seek to return to the institution because it is the life they know.
Beyond the sociological and psychological effects of institutions, we found unacceptable physical conditionsovercrowding, deteriorating and unclean buildings, lack of sunlight, lack of exercise facilities, and heating and air-conditioning systems that did not function properly, thus exposing both inmates and staff to extreme conditions.
We consider the treatment of Aboriginal peoples in Manitoba prisons to be particularly inhumane. Not only do Aboriginal people suffer the same indignities as those applicable to other inmates, they also suffer from physical isolation and cultural deprivation. Because Aboriginal people are not afforded alternatives to imprisonment in their local communities, they are removed from their families and communities to be incarcerated in a distant institution that is completely insensitive to their culture and background.
In examining sentencing practices in Manitoba, and Canada generally, one is struck immediately by the focus on jails. The Criminal Code mentions jail as a penalty for virtually every offence. Sentences that do not involve jail are confined to their own small section in the back of the Code, with the clear reminders that these are not appropriate for serious offences.
From the emphasis in the Code, we go to the allocation of resources by governments. In Manitoba, according to the Department of the Attorney General 198889 Annual Report, there were 205.5 salaried staff in youth jails and 609 staff in adult jails. Federal correctional expenditures in Manitoba, from information supplied by the Correctional Services of Canada Regional Office in Saskatoon for 199091, include 392 salaries (not including members of the Parole Board, but including 60 Parole Board employees in Manitoba). A total of 1,206.5 staff are devoted to operating the jail system in Manitoba (not including court staff, lawyers or police).
By comparison, the Department of the Attorney General Annual Report shows only 165.5 salaries are devoted to other kinds of sentencesprobation, community work orders, fine option program and special experimental projects. Of these positions, a significant amount of time is devoted to preparing pre-sentence reports. This means that there is seven times more jail staff than staff available for all other sentences combinedand this occurs despite the fact that jail is supposed to be limited to only the most serious offences, which are the minority of cases.
In terms of dollars, the Department of the Attorney General shows in its 198889 Annual Report that it spent $33,758,200 on jails in that year. The federal expenditure in Manitoba was $11,152,994 in 199091. This is a combined total of $44,911,194. The 198889 expenditures for non-jail sentences were $7,985,200. In other words, five and a half times more money is spent on jails than on other forms of sentences in Manitoba.
Indeed, while only $8,000,000 is spent on non-jail sentences, our research shows that fines create approximately $14,000,000 in revenue for the Province, not to mention the revenue from the victims of crime surcharge and from work provided through community service orders.
A similar picture emerges when one examines the number of people receiving each type of sentence. There were 287 young offenders held in custody on any given day in 1988, including 89 in temporary custody, 83 in secure custody and 115 in open custody.
There were approximately 800 adults in provincial jails on any given day in 1988, including 168 in the Remand Centre. There are approximately 550 inmates in federal institutions on a given day. This means there are approximately 1,655 persons in jail on any given day in Manitoba, and approximately one jail staff person for every 1.5 inmates. (This calculation does not include the 60 parole staff.)
For alternatives to incarceration, the 165.5 salary positions in Community and Youth Corrections have numerous tasks to accomplish. The most demanding of these is the supervision of offenders who have been placed on probation. In 1988 there were 3,200 probation supervisions, 3,000 youths admitted into alternative measures programs, 2,500 reports written, 9,000 new registrants for the fine option program, 1,600 new community service orders, 1,400 interim release supervisions and 600 persons sent to prison with periods of probation to follow their jail sentences.17
The staff responsible for overseeing these cases also must provide coordination and support for more than 40 community justice committees, involving 200 volunteers to supervise offenders, conduct crime prevention seminars and operate special programs for child sexual abuse, domestic violence and substance abuse.
Clearly, the extraordinary expenses involved in running a jail system take resources away from community programs. The Attorney Generals 198889 Annual Report shows that courts have been taking increasing advantage of community sanctions over the past five years. We strongly encourage these developments. But these efforts are being jeopardized and inhibited by a lack of resources, and especially by an inappropriate allocation of resources between jails and community sanctions. TOP
Both in Canada and in other countries, the need to move away from the imprisonment of offenders to a more socially productive approach to sentencing has been well accepted at an official level for many years. Many organizations and government task forces have made this recommendation. Moreover, in Canada, the public appears to accept the idea that community programs are appropriate for many offenders who currently are being incarcerated.18It is also widely known that current practices adversely affect Aboriginal people. Yet, Canada continues to record high incarceration rates and Aboriginal people continue to be locked up in disproportionate numbers.
In order to account for the current practices, it is necessary to examine the factors that influence sentencing patterns in Canada. It is also necessary to examine the specific factors that affect the sentencing of Aboriginal people.
The reasons for the continued reliance on incarceration in Canada are varied and complex, but one conclusion we have reached is that despite all the political rhetoric about reform and rehabilitation, our justice system continues to lock people up for no better reason than the force of habit and the weight of tradition. There has been no deliberate and systematic attempt to change these practices. Anthony Doob, a member of the Canadian Sentencing Commission, summarized the problem this way:
An examination of how courts make sentencing decisions illustrates how past practices continue, and how innovation and creativity in sentencing are discouraged.
The Lack of Pre-Sentence Information
Courts are provided with remarkably little information to assist them in making sentencing decisions. Ideally, there are Crown and defence attorneys who can speak knowledgeably to sentence, and police reports that describe the particulars of the offence in question. Ideally, the judge has gleaned much information about the offence and the offender from the trial. Ideally, the court receives a pre-sentence report that provides additional information about the offenders background and the available sentencing options. The reality, however, is far from the ideal.
The vast majority of people appearing before the courts do not have their cases proceed to trial; they simply plead guilty. According to the Department of Justice Hendrickson report on the Provincial Court study of 1,800 offenders appearing before the courts in Winnipeg and the North, trials occurred in only 3% of all cases. Whether or not there is a trial, there is usually no pre-sentence report.
Police reports typically are cursory and provide only the bare facts. Owing to high caseloads, neither the Crown nor defence attorneys have an opportunity to develop any more than a passing familiarity with the case, with the offender or with various community sanctions. In other words, very little information is available to the courts to assist them in making sentencing decisions. This is particularly true where accused plead guilty on first appearance or do not have a lawyer other than duty counsel.
The practice in recent years has been for courts to use probation officers to gather information to assist judges in making sentencing decisions. Without them, judges may not have all the information about the background of the accused, or the circumstances of the offence. Our Inquiry leads us to the conclusion that most reports are inadequate and still leave the judge without much vital information.
While the concept of a pre-sentence report certainly is sound, extremely high caseloads usually prevent the probation officer who prepared the report from attending court to discuss the findings or recommendations with the accused or with the judge. This alone has the effect of severely restricting the benefit to the court of the officers investigations.
Lack of Knowledge of the Effectiveness of Various Sanctions
Judges require "case specific" information, but they also require other types of information for sentencing purposes. They need to receive feedback about the sentences they and their colleagues have imposed in the past. They need to know, for example, how particular individuals fared in particular programs and whether any went on to commit further crimes. More generally, they need information about the effectiveness of the various sentencing options. Regrettably, this information is not collected or made available. While judges receive reports from some probation officers, there is no formal system to provide them with feedback on the effectiveness of sentences they have imposed. In fact, the courts often do not receive adequate information about the sentencing options that are available to them.
How do judges make sentencing decisions in the absence of the important information they need? In our view, most sentences seem to be determined largely by judges personal views, shaped by experience, or are dictated by the judges knowledge of available community sanctions and sentences other judges have applied in similar circumstances.
Unfortunately, judges have no say as to the facilities to which a sentenced adult offender should go. Currently, judges impose sentences and it is up to the correctional authorities to decide where the offender will serve that sentence. During the course of our Inquiry, we came across individuals who were incarcerated in correctional institutions, but, we believe, should have been in psychiatric facilities. We suggest that judges should be entitled to designate the place of custody. There is little sense in a judge passing sentence, believing that the accused will be treated in a certain fashion, only to have the accused treated in a different fashion. We recognize that those who operate correctional facilities may later conclude that an offender should be moved or that it may not be possible to accommodate the offender in a particular institution. In those circumstances, it would be understandable if the judges direction could not be followed. It would be reasonable to return the case to the judge for further consideration.
The Role of Appellate Courts in Standardizing Sentences
Provincial appellate courts frequently deal with "sentence appeals." These involve a review of the appropriateness of sentences imposed by trial judges. While we believe it is necessary for appellate courts to provide sentencing guidelines to ensure a certain degree of fairness and uniformity, we are concerned that the present system has gone too far in attempting to standardize what ought not to be, and cannot be, standardized. At the same time, too little attention is paid to the total picture of each case. Courts of appeal have the details of the offence and the criminal history of the offender, but may not know the support services available in specific communities and thus do not examine the full range of sentencing options.
One rather more disturbing aspect of appellate sentencing appears to occur frequently. That is the tendency of appellate courts simply to impose their own sentence in place of that of the lower court, instead of reviewing the lower court decision to ensure that it complies with established principles of sound sentencing practices.
The guidelines derived from appellate court judgments tend to limit the discretion of trial judges, particularly when it comes to the use of innovative sentences. As a consequence, a very traditional and conservative approach to sentencing has evolved. Past practices that rely on the use of incarceration are enshrined in appellate court judgments. In the absence of deliberate measures to change past practices, they continue unabated.
As the Canadian Sentencing Commission has pointed out:
As a result, most trial judges impose sentences which are acceptable to their courts of appeal. This tends to standardize the severity of the punishment. That is, given the particular crime and the previous record of the offender, the courts deem a particular punishment to be appropriate. By their very nature, factors that should be taken into account in sentencing, such as culture, community wishes, the benefits of community-based sanctions and the accuseds prospects for rehabilitation, are more difficult or impossible to standardize. Therefore, they tend to receive too little weight in sentencing.
A 1986 case from the Northwest Territories provides a good illustration of the way appeal courts can thwart judges who search for culturally appropriate sanctions.21 A 21-year-old Aboriginal man in Arctic Bay pleaded guilty to a charge of sexually assaulting a minor. A distinctive feature of the sentencing hearing consisted of evidence about the traditional treatment of offenders that had been accorded by the Council of Elders in Arctic Bay.
The Council of Elders told the court that it wanted the accused to remain in the community to undergo his punishment. It expressed the view that he was already on the road to rehabilitation. Sending him to prison several hundred miles away would not only interfere with his future prospects in the community, it said, but any such sentence would be resented by the community. It also expressed concern about possible resentment against the victim.
Judge Bourassa of the Territorial Court of the Northwest Territories imposed a sentence of 90 days imprisonment to be served intermittently at the local detachment of the RCMP at Arctic Bay, plus two years of probation and 100 hours of community service. In imposing sentence, Judge Bourassa stated:
Judge Bourassas sentence was appealed by the Crown. The Alberta Court of Appeal, in its capacity as the Northwest Territories Court of Appeal, found Judge Bourassas sentence "wholly inadequate" and they substituted a sentence of 18 months imprisonment. In its judgment the appeal court argued that major sexual assault must be punished with a period of imprisonment. The justices also concluded that the Council of Elders was not a direct successor to the traditional Inuit government body and, therefore, would provide counselling "much as it would be done in any other Canadian community." This showed a lack of understanding that culture is dynamic, not static, and that for Aboriginal groups, whose self-government has been restricted for a considerable time, recreating and reviving dormant institutions is the only option.
The dissenting judge in the Court of Appeal, Mr. Justice Belzil, pointed out that the Aboriginal view of justice saw imprisonment as being destructive to the individual and as "containing the seed of disharmony and division and hence destructive of the community itself."23 He continued:
In our opinion, this is an example of a court of appeal insisting on applying a standard non-Aboriginal sanction. In the process, the sentence developed by a judge who was familiar with the case and the community was rejected. The initiative shown by the community and the trial judge, and other communities (and, by implication, other trial judges), could only have been discouraged.
Implications of Current Practices for Aboriginal People
The over-reliance on incarceration and lack of judicial imagination weighs most heavily on Aboriginal people, who are convicted of crimes in numbers far out of proportion to their presence in society. Dr. Carol LaPrairie, in her study on the role of sentencing in the over-representation of Aboriginal people in correctional institutions is one of many experts suggesting sentencing reform.25
Aboriginal people are treated differently than non-Aboriginal people by the justice system at discretionary decision making points such as charging, prosecuting, sentencing and releasing. Both deliberate racism and more subtle systemic discrimination are involved. In particular, Aboriginal people disproportionately reside in rural and northern areas and they have been relegated to a low socio-economic status. Therefore, when factors such as employment, education, place and stability of residence, the "standing" of the family or community resources are taken into account by the justice system, the result is systematic discrimination against Aboriginal people. TOP
The reform of current sentencing practices will not be easy. However, the present practices cannot continue. We believe reform must involve several elements:
As we have pointed out, the current approach to sentencing relies too heavily on incarceration. This is a costly and ineffective approach. We believe that incarceration should be used as a last resort. For most offenders, including many who now are being incarcerated, community-based sentencing options should be employed.
The Canadian Sentencing Commission has pointed out that:
The commission recommends that Parliament incorporate a statement of purpose and principles in the criminal law. Sentences, it contends, should reflect "the least onerous sanction appropriate to the circumstances." With respect to imprisonment, it states:
We wish to reinforce the findings and recommendations of the Canadian Sentencing Commission.
We recommend that:
Nowhere in Canadas criminal law are the purpose of the criminal law or the objectives to be accomplished in sentencing set out. While this is a gap that should be addressed by Parliament, at present it is the courts that articulate purpose and philosophy. If past practices are to be reformed, therefore, both Parliament and the courts will have an important role to play.
Trial judges must be more creative. Existing sentencing options must be utilized more fully, and the courts should encourage the establishment of other options and solutions that are tailored to particular offenders and particular communities.
There is a need to place less emphasis on the punishment factor in sentencing and greater emphasis on the needs of the individual and the community. By shifting the emphasis in this way, more socially productive and effective sanctions can be substituted for incarceration. While this shift is required generally in our justice system, it is particularly necessary in order to respond more effectively to Aboriginal offenders. As we have seen, at present their culture, with its values, beliefs and traditions, is largely ignored.
Trial judges are unlikely to engage in culturally appropriate sentencing unless appellate courts encourage more latitude and more creativity in sentencing, even within the existing legislative framework. It is a mistake for courts of appeal to apply the "same offence-same sentence" rule, and trial judges should be encouraged to depart from such a rigid approach.
An appellate court permits a dissatisfied party a review of a decision of a trial judge. Three to five judges review the transcript of the evidence given at trial, and counsel argue whether the trial judges decision was correct in law and, in cases of sentences, whether accepted principles have been applied appropriately.
It is accepted in law that appeal court judges are not merely to substitute their opinions for those of the trial judge. There is obviously a temptation for a court of appeal judge to substitute his or her opinionto say, in effect, "If I had been the trial judge, this is the sentence I would have imposed." The often minor alterations in sentences make it abundantly clear that this is what is happening.
When a court of appeal departs dramatically from an innovative approach developed by a trial judge, as in the Naqitarvik case, two things happen:
We recommend that:
As we point out in greater detail in our discussion of Aboriginal culture, Aboriginal people traditionally have dealt with unacceptable conduct in a different manner from that of the Canadian penal and judicial system. In part, this helps to explain why conventional jails are a particularly inappropriate response to crime in Aboriginal communities, and why more culturally sensitive programs, operated by Aboriginal people, are required. During the course of our Inquiry, we met with numerous Aboriginal elders in Manitoba who helped provide us with an overview of traditional Aboriginal approaches to justice issues.
Instead of exacting vengeance and punishment, the intent in Aboriginal communities was to demonstrate the communitys disapproval of the behaviour, to counsel the offender, and to return peace and order to the community without using imprisonment.
Traditional corrective measures involved a discussion with a parent, a grandparent, an elder or a chief. The offender usually admitted his or her wrongdoing. All efforts thereafter were directed to removing the cause of the unacceptable behaviour and to making sure that there was no repetition of the conduct. This principle was applied whether the offence was minor or serious.
If an accused person denied his or her wrongdoing, the elders would be called upon to determine the "truth." If they determined that an accusation was made falsely, then their efforts focussed on rehabilitating the accuser. Invariably, an accusation of misconduct was seen as evidence of disharmony within the tribe, and whatever the "truth" turned out to bewhether the accusation was true or falsethe existence of a public accusation indicated a need for efforts to be undertaken to restore peace and harmony to the community. Most Aboriginal cultures strove to make sure that no one left this process feeling that he or she had suffered an injustice.
In cases where other forms of sanctions did not work, the person might receive the ultimate sanction: banishment from the community. That meant that while the person was not put to death, he or she had to survive the harshness of the land without the usual support of other members of the community.
A penalty that often worked in small communities was the simple act of making the conduct public. The embarrassment and public ridicule that followed such public disclosure were recognized as having the effect of preventing repetition of the unacceptable conduct. The Canadian legal system sometimes takes this into account as well, but too often it seems that it does so only for "prominent" persons.
Whatever the penalty and the adjudication process, it was effective. Members of bands lived in relative harmony over the centuries.
In our opinion, the principles of community control and community sanctions remain important. Aboriginal people should have been allowed to adapt and apply these principles many years ago. Instead, a completely foreign approach has been imposed on Aboriginal people. There is ample evidence that this approach is not very effective. We recognize that there can be no returning to the past and we do not advocate a simplistic turning back of the clock. But there are aspects of Aboriginal cultures that are as contemporary and beneficial as anything else society has to offer in our justice system.
Cultural factors should not be seen as extraordinary considerations for the court. Rather, they should be considered in the normal course of sentencing each and every Aboriginal defendant. Culture has, in fact, always been considered in the justice system. Unfortunately, it has been used too often in a racist and discriminatory manner. In 1916 a Crown prosecutor, who prosecuted two Inuit for murder, said:
Here we can see how a foreign justice system was pressed upon Aboriginal people. And while contemporary court officials are not likely to give voice to such racist sentiments, the fact remains that the legal system has not developed a much more sophisticated understanding of Aboriginal culture.
There are probably several hundred cases in the law reports that mention that the accused was an "Indian." In most of these cases, there is no indication of how that fact was taken into consideration by the court. Yet, the mere fact that it was mentioned seems to suggest that some importance was attributed to it. There certainly are cases where the courts have explicitly used the accuseds cultural background as a mitigating factor in sentencing.
In one of the earliest cases to address the subject comprehensively, the Ontario Court of Appeal in R. vs. Fireman dealt with an accused who had been convicted of manslaughter. The trial judge had rejected the contention that a lesser punishment would suffice to deter the accused and satisfy the community, and, instead, imposed a 10-year term of imprisonment. The appeal court, after considering the specifics of the accused and his community, decided that a much shorter period of incarceration would be appropriate. A term of two years was substituted.
The judgment of the appeal court is very instructive in pointing out the various ways that culture can be legitimately considered in the sentencing process:
Justice Tallis of the Supreme Court of the Northwest Territories has written:
Regrettably, this sort of sensitivity is the exception, rather than the rule, when it comes to sentencing. All too often Aboriginal offenders are given sentences based solely on the type of offence. Cultural and social relationships and informal community supports, especially from the extended family and elders, often are not brought adequately to the courts attention and, therefore, are not considered.
Probably one of the most difficult issues arises when the courts must sentence those for whom traditional Aboriginal culture is no longer a great influence. According to the 1986 census, only 25% of Aboriginal people under the age of 21 reported that an Aboriginal language was the primary language spoken in their home. This reflects the decline that has taken place in traditional Aboriginal cultures as a consequence of a broad array of pressures to assimilate. Many Aboriginal accused who appear before the courts, therefore, may appear to have lost identification with their Aboriginal heritage.
What are the courts to do in these instances? In Sentencing in Canada, one writer has stated:
Simply put, it is suggested that if the accused has no connection to his or her Aboriginal culture, then it should no longer be a factor to take into consideration in sentencing.
Some experts have warned that the appearance of a lack of connection to past cultural practices or beliefs may be deceiving:
Great care must be taken in these cases, because the influence of Aboriginal cultures is present, although difficult to detect. As we have noted earlier, it is important to distinguish between a persons lifestyle, which for some individuals may appear to be one of complete integration into the mainstream, and his or her culture, which is reflective of the values in which a person was raised and which continues to shape that persons behaviour. Thus, it is important for the courts to satisfy themselves as to the true influence of Aboriginal culture. The acceptance of outward appearances is not sufficient. In fact, where the influence of Aboriginal culture is difficult to detect, this itself may be a factor that the courts should take into consideration.
Courts have considered the difficulties experienced by the accused as a result of changes in cultural environment. In some cases, the accused moved from one cultural environment to anotherperhaps from the reserve to the city. In other cases, changes affected the cultural environment of the accuseds community. In both instances, the courts have held that "culture shock" may be considered as a mitigating factor in sentencing. We agree with that position.
Judges should ask themselves in each case how culture may be a factor, and whether it might explain:
Judges also must ask themselves if their own culture has biased their views of the offender, the offence, the victim or the penalty. Judges then must ask if a culturally specific sentence is available and would be more appropriate than incarceration. For apparently assimilated Aboriginal people, judges must ask also what the effect is on the offender of not belonging to, or not having a clear identity with, his or her culture.
We recommend that:
If non-Aboriginal judges and courts are going to be able to formulate sentences which are appropriate to the needs of Aboriginal offenders, victims and communities, they will need direct input from those communities.
The need for community involvement and the need for cultural sensitivity are two of the most important reasons we have recommended the establishment of Aboriginal courts in Aboriginal communities throughout Manitoba. Where these courts are established, they will rely on the community, since this is a deeply ingrained tradition in Aboriginal cultures. Where these courts are not established, however, existing courts must take steps to ensure that communities develop greater ownership of the justice processes that affect them. In particular, communities need to be involved in the sentencing process, since sentences should, in part, reflect the needs and desires of the community.
We believe that a judge from a non-Aboriginal court should not sentence an Aboriginal offender without first receiving the advice of someone from the Aboriginal community. It is virtually impossible for a judge, particularly a non-Aboriginal judge who has never lived in an Aboriginal community, either in remote areas of Manitoba or downtown Winnipeg, to understand the circumstances of the accused, and the community factors that bear on the offence, which should be taken into consideration in sentencing.
The court communicator, a paralegal officer, the chief of the band, a respected elder, the peacemaker or some other appropriate individual should be asked to comment on the accused and the attitude of the community towards the particular offence. This person also should be asked to provide advice to the court as to an appropriate sentence. The judge should accept these comments as evidence, but should retain the discretion to impose whatever penalty is appropriate. We would hope the judge, and any appellate court, would give considerable weight to community recommendations. TOP
Another option that some communities may wish to exercise would be to establish panels of community members to advise the courts on sentencing. Different communities might wish to structure their panels differently, but the approach of a panel of this sort should be to return the community and the victim to a relationship of security and harmony by attempting to resolve the matter in a manner acceptable to all. As we mention in our chapter on young offenders, this approach was used quite successfully by Provincial Court Judge Robert Kopstein at Roseau River in the 1970s.
The panel should meet with the accused, the victim and others to develop an understanding of what happened, the reasons for the behaviour, and the effects on the victim and the community. The attitude of the offender should be assessed. The panel should see if the accused accepts responsibility for the acts and apologizes for them. The panel should consider whether there is likely to be any repetition of the wrongdoing.
Where necessary, the panel also should discuss appropriate sanctions with the parties, relying as much as possible on traditional ways that would be acceptable to all. If the panel believes the dispute can be resolved by its intervention, it should so advise the court. If it thinks some type of penalty should be applied, whether by payment of compensation, the provision of some service to the victim, community service, a period of incarceration or some other sanction, it should recommend an appropriate penalty to the court.
On receipt of the panels report, the judge would consider the panels recommendations and pass sentence. If a judge does not accept the recommendations of the panel, the reasons should be given in open court.
Sentencing panels may be structured in a variety of ways, but we believe they would provide important benefits in instances where non-Aboriginal judges are sentencing Aboriginal people. At a bare minimum, courts must consult with representatives of the Aboriginal community before sentencing an Aboriginal offender to a term of incarceration.
We recommend that:
While we believe that far too many Manitobans are currently being imprisoned by our court system, we recognize that the range of community sanctions available to the courts needs to be expanded and strengthened. In proposing these changes we are guided by our concern that the justice system must become more responsive to the needs of Aboriginal victims, communities and offenders, and that it must give the same consideration to restitution and reconciliation that it gives to punishment. We now turn to the non-custodial sentences available to judges to see ways in which they can be integrated into this approach. TOP
Unless there is a minimum sentence prescribed by law, the courts can give offenders an absolute or conditional discharge. The authority for these sanctions is set out in section 736(1) of the Criminal Code. When an absolute discharge is granted, a conviction is not registered and there is no criminal record. In the case of a conditional discharge, the offender will not acquire a criminal record if the conditions are adhered to.
Courts may also give an offender a suspended sentence with a term of probation. Failure to comply with the order may bring the offender back before the court. At this point a new sentence can be imposed. In addition, the offender can be charged with breaching a probation order.
We believe that the publicity, embarrassment, expense and trauma that result from a court appearance are underestimated in many cases. Just as we would prefer to see many cases not reach the courts, we believe that many more could be disposed of with suspended sentences or discharges. TOP
A probation order allows courts to retain some control over an offender without incarceration. Probation orders are provided for in section 737(2) of the Criminal Code, and can be issued along with suspended sentences, conditional discharges and fines, and following terms of imprisonment of less than two years.
Probation is based on the belief that some offenders should have the opportunity to remain in the community under the supervision of a probation officer and the sentencing court. This disposition, which is imposed most frequently in the case of first offenders or in cases where the offence is relatively minor, allows the offender to maintain work, family and other responsibilities, while, at the same time, remaining under court supervision.
Offenders who fail to live up to the conditions of a probation order may be charged with breach of the order. Specifically, section 740 of the Criminal Code provides that a person who fails to comply with the terms of a probation order is guilty of a summary conviction offence and is subject to a maximum of six months imprisonment, or a fine of $2,000.00, or both. However, this sentence can only be imposed by the court at a new court hearing.
We have noted that probation orders are imposed primarily to make an offender "keep his nose clean" for a period of time. That is, indeed, one of the purposes of a probation order: to require that the offender adopt a crime-free lifestyle for a period of time in the hope that living such a lifestyle will encourage her or him to continue, because the offender learns that she or he can do so. While this is, perhaps, a primitive way of modifying behaviour, we are not prepared to say it is an invalid consideration in some cases.
Yet, an accuseds subsequent failure, after the probation period is over, to live a life free of crime is sometimes used to argue that future probation should not be available to the accused, even if he or she, in fact, remained uninvolved in crime while on the earlier probation. Rather than being used to show that probation did help the accused to remain uninvolved in criminal activity, subsequent offences are used to argue that the accused has not benefited from probation. We could understand that logic if the accused became reinvolved while on probation (thereby showing, perhaps, a disregard or disrespect for the order), but if he or she lived up to the conditions previously imposed, that should be seen as an encouraging sign.
Some caution is necessary, nevertheless. Judges often tack on a probation order almost as a matter of course. The danger in imposing probation in this manner is that if the conditions are not met, the subsequent penalty may become greater than the circumstances of the original offence warranted and greater than the judge intended.
Conditions of Probation
Every probation order requires that the offender keep the peace and be of good behaviour. The probationer is required to appear before the court if called upon to do so. Any number of additional conditions may also be imposed if, in the opinion of the judge, they are warranted in the circumstances. Common conditions include remaining under the supervision of a probation officer, supporting ones dependants, abstinence from drugs and alcohol, making restitution or reparation, remaining within the jurisdiction of the court, and making reasonable efforts to find and maintain employment.
Other conditions, intended either to assist in rehabilitation or to prevent a recurrence of the offence, might include a curfew or a prohibition against being with certain individuals or in certain places. Probationers also may be required to participate in treatment or education programs.
When it comes to the sentencing of Aboriginal people, many of these conditions are, in our opinion, inappropriate. As a result, matters which may have started as a minor infraction may escalate into something quite serious. We believe that, in too many cases, conditions of probation are not related directly to the offence at hand, and are included because the court believes they will "improve" the offender. This is particularly true in the case of orders which demand that the probationer refrain from the consumption of alcohol. Our survey of Aboriginal inmates revealed that Aboriginal inmates believe that the parole system holds the view that Aboriginal offenders have alcohol problems. We believe the courts also hold such stereotypical views and impose abstinence orders even when alcohol abuse is not a factor leading to the commission of the offence.
Such orders are problematic even when the individual does have a substance abuse problem. Simply telling a person who has a severe drinking problem not to drink, without providing him or her with the supports needed to break such an addiction, is to invite failure. If, on the other hand, the order required the offender to enrol in a culturally appropriate alcohol treatment program, the condition could be of benefit to the individual and to society.
During our Inquiry, Linda Buchanan, the director of the Rehabilitation Centre at The Pas Health Complex, told us that offenders are given orders to abstain from alcohol and then referred to her centre for counselling. She said the orders are out of step with the approach her counselling program takes, which recognizes that alcoholism is an addiction which must be treated if it is to be overcome. The probation order, on the other hand, tells "someone who possibly has no control over that particular disease that they have to abstain from it absolutely, which is an impossible thing to do."
Probation orders which require abstinence can, in fact, prevent a person from receiving treatment, since probation officers often are the only officials who can make referrals to alcohol rehabilitation centres. Buchanan outlined the dilemma this would create for an alcoholic who had been unable to live up to an order to abstain from alcohol, but wanted to be referred to a centre for treatment. To get a referral for alcohol abuse treatment, such a person would have to admit to the probation officer that she or he has been breaching the probation order by drinking. In this case, a person invites further punishment by seeking treatment.
Not only are many of the conditions of probation inappropriate, but the courts, we found, do not do a proper job of informing Aboriginal people of the purpose of a probation order and the consequences of violating it.
As a result, Aboriginal people are unaware of the fact that probation is a type of monitoring that follows, or is instead of, incarceration, and that it is intended for the benefit of the accused. Nor do they understand that a separate charge may result from a breach of the conditions of a probation order. As a result, people who have committed minor offences accumulate criminal records through confusion or misunderstanding. Aboriginal people throughout the province told us it is virtually impossible to find a translation for the concept of probation. Translator Angus Merrick told us, "There is no word in our language for that. I always told them that you have to wait for awhile. They have to wait for a while. That was [the] closest I could come to it ."
In addition, probation officers usually are non-Aboriginal persons based in urban centres. This makes it difficult or impossible, when dealing with Aboriginal offenders from remote communities, to assist the offender or the court effectively, whether it is by way of explaining cultural or community factors to a judge, or by way of guiding an Aboriginal offender on probation. Urban non-Aboriginal probation workers also appear not to understand the problems experienced by urban Aboriginal people.
Community Service Orders
Although they are not referred to specifically in the Criminal Code, all provinces and territories make substantial use of community service orders (CSOs). A CSO is a condition of a probation order made pursuant to section 737, which gives judges discretion to impose such "reasonable conditions as the court considers desirable." A fact book of the Department of Justice defines a CSO as
Such orders usually specify the number of hours an offender is to work. In remote communities, this work can included flooding rinks, cutting grass, working in day care centres and schools as aides, cutting wood and hauling water, and setting up before and cleaning up after community bingos. In urban areas, it can include work at community centres, sorting clothing for the Salvation Army and working in senior citizens residences.
These orders are intended to take the place of fines or incarceration. They differ from the fine option program in two important ways: the offender does not have the option of doing the work or simply paying a fine; and, offenders who breach community service orders are taken back to court, rather than being imprisoned automatically, as is the case with those who fail to do fine option work. While offenders can be incarcerated for violating a community service order, this is rarely done.
To administer CSOs the Department of Justice has entered into agreements with community-based organizations known as Community Resource Centres (CRCs). In 1989 there were over 140 CRCs in Manitoba which referred offenders to over 400 work centres. A listing of CRCs included over 45 band councils, as well as a variety of town and municipal governments, Lions Clubs, Friendship Centres and youth justice committees. These agencies register offenders, assign work and report on the performance of offenders to probation officers, Crown attorneys and the court. The centres also place offenders who have registered through the fine option program.
According to a report presented to us by the fine option program in 1989, 654 adults and 792 youths were registered through Community Service Orders; of this total 831 were in the city of Winnipeg, while 139 were in the Norman/Thompson region. In 1989 65% of offenders completed their community service orders and 107,795 hours of community service were ordered by courts.
In Manitoba, probation orders are administered and supervised by the Department of Justices Community and Youth Correctional Services. There are 100 probation officers employed in the provincial probation service. These officers are responsible for supervising over 5,000 people a year. Fifty-four per cent of the youth and 44% of the adults under probationary supervision are Aboriginal. Sixty probation officers are located in the Winnipeg area. Other communities with resident probation officers include: Portage, Morden, Beausejour, Steinbach, Selkirk, The Pas, Flin Flon, Dauphin, Swan River, Thompson, Norway House, Gods Lake Narrows, Churchill, Brandon, Minnedosa and Hamiota. There are approximately 17 full-time Aboriginal probation officers and three half-time positions. Six Aboriginal probation officers are stationed in Winnipeg and 9.5 in northern Manitoba. In addition to the 100 full-time probation officers, there are 352 honorary probation officers who work in various communities on a fee-for-service basis. At least 45 of these officers identify themselves as Aboriginal. The average caseload per probation officer across the province is 68 cases, while the average caseload in northern Manitoba is 77.34
One probation officer who supported the use of alternative programs reminded us that "there are not a lot of staff should those programs increase drastically. Given the workload increases and the staff decreases over the last five years there is not a lot of manpower to meet those sorts of demands."
The same officer told us that while he believes there is less prejudice towards Aboriginal people in the probation service than when he started 18 years earlier, "it still exists to some degree and people still operate on the basis of stereotypes."
A number of Aboriginal and northern presenters said they had never seen a probation officer in their community. Bob McCleverty, the mayor of Thicket Portage, told us:
Presentations made at a number of reserves convince us that staffing problems lie behind the fact that the work ordered under both community service orders and the fine option program often may not be carried out properly. These programs often are viewed as being outside impositions and as being efforts by the justice system to off-load its responsibilities inexpensively. Chief Vera Mitchell of Poplar River told us:
Gordon Dumas, a volunteer probation worker in South Indian Lake, explained that he makes sure that offenders who have been given community service orders, or who are in the fine option program, register with the South Indian Lake Community Council. The council provides them with work. But from then on, he said, "Those people are on their own. Either they show up or they dont."
We were told bands receive $30 per offender to cover the cost of coordinating and supervising the work that is to be done. This appears to us to be inadequate. It also ensures that there is no regular, ongoing program.
Mr. Dumas also told us that he supervises five probationers, while up to 45 other probationers in the community are supervised by a probation officer based in Thompson, who comes to the community every three months. Speaking of his ability to carry out his duties, Dumas said, "I am not trained to do that either. I think there should be a trained person in this community for that purpose."
Aboriginal presenters told us that non-Aboriginal probation officers had little understanding of the dynamics of life in an Aboriginal community. One person told us that his probation officer did not understand the pressures in an Aboriginal community that often caused a probation order to fail.
As they presently stand, we believe that probation services are unable to provide Aboriginal people with the level and type of service they need. This failure inevitably results in Aboriginal people being brought back before the courts for related or similar offences for which they had originally been placed on probation. When a judge is faced with an accused who is charged with an offence for which he or she had originally been placed on probation, or with a subsequent offence, the judge inevitably presumes that the individual failed to benefit from the earlier probation order and looks to a more punitive sanction to deter the offender. Judges may not stop to consider that perhaps the earlier probation order either was inappropriate or was not properly administered; that perhaps probation services failed and not the accused.
Section 737(a) of the Criminal Code permits the courts to require a person placed on probation to report to a "person designated by the court." This provision, unfortunately, is almost never used. We believe it is particularly suitable for Aboriginal communities. Such a person could be a family member, a band constable or band chief.
If probation services are to be effective, they must be provided by individuals who are familiar with the community and who understand the circumstances of the accused. We are satisfied that to serve those in an Aboriginal community properly, the probation officer must be Aboriginal, must reside in the community, and must have the resources and training needed to properly discharge his or her responsibilities. Community sanctions will not work unless the community truly believes it has ownership and control of the programs, and unless the people who are providing the service have an understanding of the community, have been properly trained and are being properly compensated for their efforts.
The Dakota Ojibway Probation Service
There is only one Aboriginally controlled probation agency in Manitoba: the Dakota Ojibway Probation Service (DOPS), with its head office in Brandon. This agency employs five staff: a director, a secretary and three probation officers. All staff are Aboriginal. DOPS took control of the probation services for seven of the eight member communities of the Dakota Ojibway Tribal Council in 1983. The service has jurisdiction over band members who live on DOTC reserves. Most observers agree that the jurisdiction was turned over too quickly and that the newly hired probation officers were not trained properly. In addition to this, there have been strained relations between the provincial probation services and DOPS.
The agency has struggled with the need to meet the standards of the provincial probation services and the courts, while trying to meet community expectations that it develop unique and culturally appropriate sanctions and policies. These strains have led to high staff turnover and, at times, criticism from the courts. However, it is clear that despite their concerns, the residents of the DOTC communities view the DOPS as a significant step in the communities development.
We believe there is a need for a closer working relationship between the courts, the provincial corrections department and the DOPS, and for the development of a stable, long-term funding base for the agency.
We would like to see an improved probation policy that achieves a number of goals:
We recommend that:
Restitution is the return to a person of some money or goods taken by another. Presently, there are two different ways courts can address the issue. Compensation can be ordered under section 725(1) of the Criminal Code. If a compensation order is not complied with forthwith, the victim can file the compensation order with the Court of Queens Bench and obtain a civil judgment. Additionally, section 737(2)(e) of the Criminal Code gives a judge the power to order that as a condition of probation the offender "make restitution or reparation to any person aggrieved or injured by the commission of the offence for the actual loss or damage sustained by that person as a result thereof."
Where the nature of the crime does not require the incarceration of the offender, we suggest that orders of restitution be considered as being preferable to a fine. The proceeds from an order of restitution benefit the victim, while the proceeds from a fine go to the state. Restitution is also in keeping with Aboriginal concepts of justice which, among other things, seek to determine the causes of wrongdoing, to correct them, and to return the parties to a state of peace and order. If, in an Aboriginal community, someone takes anothers boat or snowmobile, the return of the item is the important thing, not sending the offender to jail. If some damage is done, work or payment is appropriate.
In Manitoba it is estimated that some 6% of adults sentenced by the provincial courts are ordered to pay restitution.35 We believe this number can be increased significantly. Currently, restitution is not considered automatically by the courts and, when it is considered, there is no effective way of determining the amount of restitution that is warranted or the offenders ability to pay. When restitution is ordered, there is no proper way to monitor compliance, although court staff do play a bookkeeping role. While no statistics are available on completion rates, we have the impression that many orders are not supervised properly and that it is usually left to the victim to complain to the courts if restitution has not been made.
In Saskatchewan, which has had a formal restitution program since 1983, it was estimated after the first year of the program that restitution orders increased by 27%, and that, without the program, an additional 570 people would have been incarcerated for periods of one to 120 days.36
Under the Saskatchewan system, judges receive a restitution report which assesses the amount of damage done by the offender, the circumstances of the offence, the views of the victim, an assessment of the offenders ability to pay, and a recommendation whether restitution is appropriate and the amount that would be appropriate. The process ensures that the court considers restitution in lieu of short-term imprisonment or an alternate sentence.
In Saskatchewan restitution is paid to the courts and distributed to the victims. The program is administered by restitution coordinators, who work within the probation system. They do the restitution assessment reports, establish contact with the offender and monitor compliance, institute any needed enforcement measures, provide assistance to victims, and publicize the program within the court system and the community.
The Manitoba Maintenance Enforcement Program is another method of ensuring that court-ordered payments are indeed paid. The program provides computerized supervision of payments and administrative enforcement through garnishment of wages and close scrutiny of ability to pay. We believe the elements that make the Saskatchewan program successfulin particular, the contact that is made between restitution staff and offenders, and the assessment of ability to payand the collection provisions of the Maintenance Enforcement Program can be used to strengthen the effectiveness of orders of restitution in Manitoba.
We recommend that:
A wide range of Criminal Code offences, federal and provincial statutes, as well as numerous municipal by-laws, include fines as possible punishments. Fines are used extensively by courts, both alone and in conjunction with other sanctions.
Fines also are levied through Common Offence Notices (CONs). These were established to streamline the court process by allowing out-of-court settlement of minor offences through pre-set fines. They deal with violations of provincial statutes such as the Highway Traffic Act, the Liquor Control Act and the Wildlife Act. A peace officer serves the accused with an "offence notice." The notice imposes a deadline by which a person may contest the matter. If the accused does not take action to contest the charge, a guilty finding is entered and a fine is imposed automatically, without regard to the individuals ability to pay. A schedule of fines, including the amount of time a person will spend in jail if the fine is not paid, is determined by the Department of Justice, and applied by magistrates and justices of the peace.
The Department of Justice does not monitor the use of fines effectively. It does not know, for example, how many fines are assessed by the courts each year, or what the average fine is. We do know that in 1987, some $14 million in fine revenue was recovered in Manitoba. Our best estimate is that this resulted from some 160,000 fines.
In theory, fines simultaneously punish offenders and allow them to make a form of restitution to the community. Aboriginal communities do not necessarily share this view, since they see the fine money leaving the community and going to the provincial government.
The imposition of a fine, without any other penalty, indicates that the judge believes the offender does not present a threat to the community and, therefore, should not be jailed. However, under the provisions of sections 718(3) and 787(2) of the Criminal Code, a judge, when imposing a fine, can issue a default order. Under such an order, the offender may be imprisoned if the fine is not paid. When an offence proceeds by way of a common offence notice and the accused either fails to appear in court or to pay the fine, a default order is issued automatically and the offender is arrested. The amount of time the offender is required to serve is based on the size of the fine. Currently, fines are reduced at the rate of $10 for each day spent in custody. Fines differ significantly from probation orders in that fine defaulters are jailed without a formal hearing. While offenders who cannot pay fines may choose to enter the fine option program, many subsequently default. The police then are charged with the responsibility of arresting and imprisoning these peoplean expensive task that the police feel takes them away from more important law enforcement activities. Unlike fine defaulters, offenders who breach probation are given a formal hearing to determine the reasons for the default before any new sanctions are imposed. The absence of this review process for fines has serious consequences.
Most Canadians would agree that there should not be one law for the rich and another for the poor, but it appears that this is the case when it comes to fines. In 1988, 754 of the 5,563 people admitted to provincial correctional institutions in Manitoba were fine defaulters. This means that 13% of the people admitted to Manitoba jails in that year were there, not because they were a danger to society, but because they could not, or would not, pay their fines. Research commissioned by our Inquiry indicates that in 1988, 60% of these imprisoned fine defaulters were Aboriginal.
Our research indicates that Aboriginal men who defaulted were twice as likely to be incarcerated as non-Aboriginal men, and Aboriginal women were three times more likely to be incarcerated than non-Aboriginal women. According to our study, the typical fine defaulter is an Aboriginal male between the ages of 22 to 29, who is single, unemployed, has less than grade 12 education and resides in rural Manitoba. Aboriginal offenders were twice as likely to be incarcerated for fine default for one outstanding fine than non-Aboriginal offenders. The average amount of the unpaid fines that led to the incarceration of Aboriginal people was $201.20. Aboriginal inmates incarcerated for defaulting on their fines served an average of 23 days in custody.
There are two aspects of the matter which concern us. First, Aboriginal people (and others) who have not committed serious crimes are still going to jail because they cannot afford to pay their fines. This is an intolerable state of affairs.
Second, it appears that judges are not adequately considering the question of an accuseds ability to pay a fine when imposing one.
Judges are required by law to address their minds to the offenders ability to pay when determining whether to allow time to pay the fine (s. 718 (5) of the Criminal Code) and, additionally, when the accused is between 16 and 21 years of age, must order a special report on the accuseds ability to pay before issuing a warrant of committal in default of paying a fine. (s. 718(10)) While it is possible that judges are addressing the issue of ability to pay when granting time to pay a fine, we are not certain that ability to pay is addressed when default orders are imposed.
It is not obligatory for judges to impose default orders, but it is common practice for judges to do so. The Criminal Code allows a judge to impose a fine and then, at a second hearing, to impose a default order if the fine has not been paid. The fact that this process is never used is a clear indication that imprisonment for non-payment of fines is viewed by those within the system as a means of enforcing the payment of finesa practice long considered improper.
Nova Scotia Provincial Court Judge R. E. Kimball has stated that default orders are not always appropriate or necessary. He suggests that the order should not be imposed unless the Crown asks for it and provides reasons why the order should be granted.
We agree with these comments. We also believe that a major reason why judges in Manitoba impose default orders as a matter of course is because they believe offenders who cannot pay their fines will take advantage of the fine option program, rather than be incarcerated. That, of course, has not proven to be the case. For this reason it is important to review the operation of that program.
In 1983 Manitoba initiated a Fine Option Program. It was intended to reduce the number of offenders incarcerated for failure to pay a fine. It was a response to the fact that our jails traditionally have been "debtors prisons," for those without the means to pay a fine. In 1982, for example, 24% (or 791 persons) of the people admitted to provincial correctional institutions were incarcerated for non-payment of fines.
The Manitoba Summary Convictions Act, section 21, allows offenders to perform unpaid community work in lieu of paying fines that have been assessed by the courts. The related regulation is entitled the "Fine Option Program Regulation." It enables offenders to register with Community Resource Centres. These centres perform the same function for those who register with the fine option program as they do for those offenders who are fulfilling community service orders; they arrange suitable work for program participants and then supervise the completion of the work. The number of hours to be spent performing community work is determined by dividing the fine by the hourly minimum wage.
In Manitoba offenders can enter the program in one of two ways. After the court has imposed a fine, they may sign up for fine option immediately. If they do not sign up at this stage and are unable to pay, or are subsequently incarcerated for defaulting on the fine, there is a further opportunity to enter the program at the correctional institution. In 1988, 245 of the 754 fine defaulters admitted to Manitoba jails entered the fine option program. In these cases, offenders were given temporary absences from the institutions in order to perform the required community work, unless they had already failed to perform work that was assigned previously under the fine option program.
In some cases, RCMP officers encourage the defaulters to enrol in the fine option program and, if that is done, the person does not have to be taken to jail. If the person defaults in a work program, however, he or she is arrested again and taken to jail.
As the program is presently structured, anyone can take advantage of it, regardless of his or her means. The court itself has no say in whether a person who is fined should, or plans to, enter the program. There also is no means test required for those who register with the program. Even those who are quite capable of paying the fine can register in the program. This, in fact, has been a criticism of the fine option program. Fine defaulters with the resources to pay a fine know that if they wait for the police to arrest them for non-payment, they can immediately register for the fine option program. If they default on the program, they cannot be re-arrested since the original warrant for non-payment of fine has been executed. A new warrant cannot be issued without a new hearing, a procedure not used now. Such defaulters, therefore, are shown in court records as having worked off their fine (by being shown as having registered) when, in fact, they have not. They are not pursued any further.
Even when the program does work, it is administratively inflexible and costly to deliver. When a fine is imposed, the offender has to make contact with the fine option system to enrol in the program. A program employee then will have to find suitable work for the offender. A contract is then entered into with the offender. The case has to be supervised to make sure the offender completes the work. If the offender does not keep to the work schedule, that fact has to be reported by the workplace supervisor to the fine option coordinator. Usually, no effort is expended to restore the work program. If, however, the work is not being carried out at all, a warrant is issued and the person is taken to jail to serve the time that has not been worked off.
In 1987 there were some 10,000 fine option program registrations. We estimate that approximately 6% of all fines are worked off through the program. There can be no doubt that the fine option program has managed to reduce the number of people who are being incarcerated for fine defaults; in 1980, 1,148 people were serving time in Manitoba jails for fine defaults, while in 1988 this number was 509 (excluding the 245 who registered with fine option upon admission to jail).
Despite the fact that the fine option program has been operating in Manitoba for eight years, hundreds of people, more than half of them Aboriginal, are going to jail every year for defaulting on their fines. We believe that for the vast majority this occurs simply because they lack the resources to pay. The archaic practice of putting people in jail because they cannot afford to pay a fine is being perpetuated. While the fine option program has succeeded in reducing somewhat the incarceration of fine defaulters, it has failed to bring this practice to an end.
Figures obtained by our research staff from the Saskatchewan program also seem to raise questions about the long-term effectiveness of fine options in reducing the incarceration of fine defaulters. In 198687, for example, 47.2% of female admissions and 35.9% of male admissions to provincial correctional institutions in Saskatchewan resulted from a fine default, notwithstanding the fact that a fine option program had been in existence in that province for well over a decade.38
There are several reasons for this. One lies in the fact that the program creates the illusion that people who are assessed fines will not go to jail. It appears to us that judges assume that offenders who are fined will pay or take advantage of the fine option program, rather than defaulting and going to jail. Unfortunately, this is not always the case. Had the fine option program not been available, we believe that, in many cases, judges would not have imposed a fine; instead, they would have used a less onerous sanction or made a community service order a condition of probation. In other words, the program entices the courts into imposing a penalty that results in jail when the judge had already decided that jail was inappropriate. The existence of the program seems to reduce a judges need to assess an offenders ability to pay, or to take that into account when determining the amount of the fine.
As well, during our hearings, we found that many convicted Aboriginal people either were not aware of the existence of the program, or did not know how to enrol in it. There is no consistent way of notifying potential program participants about the options that are available to them. Moreover, we saw some written material about the program that was incorrect and out of date. We were told that some people who could benefit from the program never use the enrolment forms they are given. We believe the documents and the program are not being explained properly. John Sioux, a band councillor on the Sioux Valley Reserve with responsibility for the local fine option program, told us:
A telephone survey of court offices by our Inquiry staff confirmed that there was a considerable lack of knowledge about the program, even among justice system officials. There were some very clearly mistaken beliefs as to who was entitled to use the program and, in particular, whether application could be made after a default had occurred. None of the court offices contacted had received any orientation or a policy manual on the program. All indicated they had never been approached by the administrators of the program for an orientation, nor had they received information relating to policy or procedures.
Persons employed to coordinate fine option programs are not present in many communities, including many Aboriginal communities. In some communities, this work is done by honorary coordinators and access to accurate information about the program is restricted. Where coordinators are present, they, like the court staff, often appear unsure of their responsibilities. The RCMP have offered some assistance to enable people to enrol in the program, even after they have defaulted. Unlike the RCMP, however, the Winnipeg and Brandon police forces do not advise people, as a matter of policy, of the existence of the fine option program, nor do they allow the offender time to register with the program before executing a warrant of arrest for defaulting on a fine.
It is not surprising that many offenders choose fine option once they have been incarcerated. For many, it is the first they have heard about the program. Others may have been hoping to avoid apprehension. Once an offender is incarcerated, his or her incentive to participate is considerable, since it results in immediate release from jail.
Female offenders do not participate in the fine option program to the same extent as men. Many with whom we spoke did not become aware of the program until they were incarcerated for fine default. Others, who told us they were aware of the program, were not able to take advantage of it owing to family demands, low self-esteem or a lack of assertiveness. Others have little or no work experience in an urban community and do not think the program is available to them.
On many reserves, there is a belief among Aboriginal men that women should not work outside the home. Such a belief certainly affects an Aboriginal womans participation in the fine option program. In addition, single-parent families and families where the mother is the primary care-giver to the children predominate in Aboriginal communities. These situations make participation in a community work program problematic, if not impossible. In cities, the cost of transportation and the need to care for children are further factors that prevent women from participating. There does not appear to be any effort being made to encourage Aboriginal women to participate, or to provide them with viable options to defaulting on fines or breaching CSOs.
The fine option system is further complicated by common offence notices. Because there is no court hearing, there is no opportunity for a judge to consider the appropriateness of a fine or to substitute another sentence. Those who default on CONs can find themselves incarcerated without ever having had their case considered by a court.
We know that the fine option program was established with the best of intentions: to give offenders an option to stay out of jail if they cannot pay a fine. While there are certain administrative problems with the program, we believe the people responsible for it are doing their best to make sure it achieves its goals. However, we believe that it is necessary to make fundamental changes in the way we assess and recover fines.
A New Fine Enforcement System
The aim of sentencing is to find a sanction which is appropriate to the offence, to the individual offender and to the needs of the community. We believe that fines, restitution and community work are valuable sanctions, but they are not now being used properly or to their fullest potential. In particular, we would like to see an increase in the use of restitution orders and a decrease in the number of fines. We believe that CSOs and restitution can play an important role in restoring a sense of harmony to a community after a crime has been committed, and we also believe that an over-reliance on fines has led to the incarceration of far too many people.
The first step in reforming this process is to require judges to satisfy themselves that an offender is able to pay before any fine is imposed or before an order of restitution is made. Fines should not be imposed if the person is unable to pay the fine. The Manitoba Summary Convictions Act and the Criminal Code should be amended to eliminate the provision of incarceration for the non-payment of fines. In those cases where the judge determines that the offender does not possess the ability to pay a fine, the judge should impose probation or should make a community service order in place of the fine.
We are proposing changes to the way these three sanctions are imposed, monitored and enforced with these goals in mind:
These are ambitious goals. But we have the successful example of the Manitoba governments Maintenance Enforcement Program to draw upon. Because the province has been able to reduce welfare payments to dependent spouses since the program was introduced in 1980, the program, in effect, pays for itself. Millions of dollars have been collected from people ordered to pay child or spousal support. A similar fine recovery program would also increase the likelihood of fines being paid, while reducing expenses for incarceration and freeing police officers for other duties.
We recommend the establishment of a Fine and Restitution Recovery Program.
Once a fine is levied or an order of restitution is made, the Fine and Restitution Recovery Program should become responsible for its collection. All fines and restitution orders should automatically be registered with the enforcement program, whose officers would contact offenders when a default occurs. As a first step, financial advice and counselling might be offered. As a second step, the fine enforcement officers could accept a wage assignment or have the offenders salary or income tax refund garnisheed, or property attached.
Where the fine is related to the operation of a motor vehicle, authority should be conferred on the enforcement program to record the fine with the Motor Vehicle Branch. No further vehicle or drivers licence should be issued until the fine is paid.
If these efforts fail, the offender can be required to attend a hearing held by a master, judge or hearing officer. At this hearing, the offender would have explain why the fine or restitution payment is in default. After a thorough examination of assets and debts, the hearing officer would have the power to order the substitution of a period of community service for the original sentence, to extend the time to pay the fine, or to enter the default on the persons record. If the person is able to pay the fine, but wilfully refuses, only then would incarceration be appropriate, and even then this should only occur when ordered by a master or judge.
Changes are also required to the current practice with respect to common offence notices. As with parking tickets in the city of Winnipeg, the common offence notice might indicate a substantial fine which is subject to a discount if paid within a time limit. Defaulters would be dealt with by the enforcement practices we are recommending.
We recommend that:
Our justice system may claim to be fair and equitable, but it is largely a punishment system that makes insufficient use of its sentencing options. The needs of offenders, victims and communities, rather than sentencing precedents, should become the criteria when appropriate dispositions are being considered.
At present, our jails are filled to overcapacity. They are filled with large numbers of offenders who are not a danger to society. They are filled despite the fact that jail only punishesit does not rehabilitate, deter or protect effectively. They are filled despite the fact that they are horrendously expensive to build and operate. They are filled despite the fact that more cost-effective alternatives are already in place, although under-utilized, and that others could easily be developed. They are filled even though they represent a particularly inappropriate response to the plight of Aboriginal people.
The challenge facing Canadian society is to find different means of dealing with unacceptable behaviour. Merely building more jails, or encouraging the judiciary to deal more severely with offenders, will not address the root causes of crime in our society. We believe that there are more effective ways of utilizing limited financial resources.
We believe our recommendations, if implemented, will go a long way to reduce incarceration, will improve the effectiveness of sentencing and will begin to develop the Aboriginal communitys faith in the justice system. We would like to stress our belief that long-term solutions lie in the Aboriginal communities developing and controlling their own justice system, including correctional programs and facilities. Even with such developments, we recommend that the existing system be significantly reformed. Without a change in approach, the courts will continue to act on the basis of inadequate information, and Aboriginal people will continue to see the decisions of courts as foreign to them and as ones that do not meet their needs.
We believe the changes that we have recommended are mutually reinforcing. Canada must reduce its tendency to punish and incarcerate people. Courts must develop alternative sentences that more clearly identify the cause of inappropriate conduct and help to overcome any likelihood of repetition, and, at the same time, address the concerns of victims and the community.
The underlying problem with the programs we have reviewed in this chapter is no different than in the other justice programs we have reviewed. Aboriginal communities have to be given an opportunity to deal with their own problems and resolve them with their own institutions. Communication problems, discrimination, time delays, high costs, inappropriate decisions and many other problems that characterize the current system will be significantly reduced, we believe, when Aboriginal communities become more responsible for their own citizens. TOP
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