Judge: Ontario's Aboriginal policy hamstrings courts

An aboriginal woman from the Sudbury area convicted of impaired driving could be eligible for alternative justice, a judge with the Ontario Court of Justice has ruled.

The ruling, made in late May, is based on a section of the Criminal Code that allows judges to grant a conditional discharge to offenders who are strong candidates for addictions and rehab counselling.

However, that section of the Code was not proclaimed into law in Ontario.

In this case, the defendant argued that by not enacting that part of the legislation, the province was perpetuating discriminatory treatment of First Nation's people by the legal system.

That argument was backed by earlier court rulings that required, in certain circumstances, judges to consider restorative justice sentences in recognition of the years of systemic discrimination aboriginals have faced, as well as the trauma that “colonialism and the residential school system” wreaked on their traditional society.

“The court viewed the purpose of this section as a response to the acute problem of the disproportionate incarceration of Aboriginal peoples in Canada arising, in part, from the widespread racism that for Indigenous people has 'translated into systemic discrimination in the criminal justice system,'” say court transcripts accompanying the decision.

In this case, the woman's grandparents were forced into residential school, resulting in widespread addiction in the family. The woman was mostly raised by her grandmother until she passed away. She then lived with her alcoholic mother, until she also died. At that point she moved to Sudbury and attended Cambrian College.

She came out as a lesbian in 1999, began a relationship in 2003 and graduated from Cambrian in 2006. She began studies at Laurentian University and gave birth to a daughter in the same year.

But when the relationship ended in 2009, she began drinking heavily and was arrested for impaired driving in 2011.

She entered a treatment centre and began taking anxiety medication. But she overdosed when she mixed the medication with alcohol and fell into a coma that left her with permanent brain damage. As a result, she arranged for her former partner to take custody of her daughter.

She was charged again with impaired driving in 2012. When arrested, she gave police a false name. At the time, she was free on a release order because she was facing other charges of assault, uttering threats and failure to comply with the terms of her release.

She entered the treatment facility again, but failed to complete the program, although she is receiving counselling from a First Nations drug and alcohol worker and had been attending Alcoholic Anonymous meetings once a week.

During the hearing, the court heard testimony from a counsellor with a doctorate in clinical psychology who is an expert on “alcohol abuse, alcohol abuse in Indigenous communities in Canada, and culturally based treatment for alcohol abuse.”

She testified “that there is a unique historical context to an understanding of the addictive behaviours of Aboriginal people,” the transcripts say.

“She says it is rooted in their experience of colonialism and assimilation policies, exploitation and discrimination, all of which continue to impact the health, social life and economic prospects of generations of Indigenous persons.”

Experiences such as residential schools and racism toward First Nations people in Canada have caused multi-generational traumas, in which addictions of parents and grandparents are passed down to children.

“The impact of residential school has been profound,” the expert testified. “It separated children from their family and ensured that parental and community values, traditions and beliefs were not passed on. Language was lost, as was spiritual connection. Many suffered physical, sexual or psychological abuse in the schools.

“Too many parents and relatives lost their purpose.”

She testified that, for many individuals “alcohol was and is a way of coping, of numbing the effects of loss and displacement engendered over generations of residential school. This often took and continues to take the form of binge drinking.”

Anxiety, post-traumatic stress disorder and depression are common challenges, with the result that victims don't develop the parenting skills needed to help their own children at crucial times of their development.

And an earlier court decision ruled that sentencing First Nations offenders without taking into account their individual circumstances amounted to discrimination, since judges have a “statutory duty to consider historical and sociological factors that have disadvantaged Aboriginal offenders across generations and consider the fullest range of sentencing options, including those of a restorative nature.”

By not enacting that element of the Criminal Code, Ontario was depriving the woman of her right to have her First Nations background taken into account when being sentenced, the court ruled.

“I accept the submission that the province’s failure to proclaim (the relevant Criminal Code provision) has had a differential impact on Aboriginal offenders,” the judge ruled.

“Sentencing judges are unable to meet their statutory duty to consider historical and sociological factors that have disadvantaged Aboriginal offenders across generations and consider the fullest range of sentencing options, including those of a restorative nature.

“The Ontario policy not to proclaim creates a distinction for Aboriginal offenders because they lose the benefit of a sentencing approach set out in statute and common law authority that is mandated to address an historical disadvantage not borne here by non-Aboriginal offenders, but that in addition is one made available to Indigenous persons throughout most of Canada.”

He also ruled that the enforcement of that part of the Criminal Code has not led to increased disrespect for impaired driving laws in Canada.

“Effective impaired driving enforcement remains an important objective and is rationally connected to mandatory non-discretional incarceration,” he wrote. “There is no evidence, however, that use of a curative discharge outside this province has diminished the force of this objective.”

The judge stopped short of dismissing the charges, but said he would consider a “curative discharge” and would hear arguments on whether such a decision would be in the public's interest.

“I would ask for more detailed and updated information about the defendant, as well as submissions on the factors relied on in other provincial cases,” he concluded.