1. Aboriginal Legal Services of Toronto Inc. ("ALST") intervenes pursuant to an order of the Honourable Justice LeBel dated May 31, 2005.
2. ALST is a non-profit organization that serves Canada’s largest urban Aboriginal community. ALST has a long involvement in issues relating to Aboriginal people and the criminal justice system, including Aboriginal youth.
3. Since its inception in 1990, ALST has always had an Aboriginal criminal courtworker dedicated to working with Aboriginal youth charged with criminal offences. ALST therefore has extensive experience with the Young Offenders Act and the Youth Criminal Justice Act.

Young Offenders Act, R.S.C. 1985, c. Y-1 (repealed) (hereinafter, "YOA");

Youth Criminal Justice Act, S. C. 2002, c. 7 (hereinafter "YCJA").

4. ALST also operates the Community Council Program, the first urban Aboriginal alternative justice program in Canada. The Council began hearing cases in 1991. In 2004/05 the Council held 253 hearings. In 2000, the Community Council began hearing cases of Aboriginal young people charged with criminal offences. To date, the Council has heard 127 cases involving Aboriginal youth.
5. ALST participated as an intervener before the Supreme Court of Canada in both R. v. Gladue and R. v. Wells. ALST subsequently played a significant role in the establishment of a specialized court for Aboriginal accused persons located at the Old City Hall Courts in Toronto, known as the Gladue (Aboriginal Persons) Court. ALST provides staff resources to the Court in the form of an Aboriginal criminal courtworker and a Gladue caseworker.

R. v. Gladue, [1999] 1 S.C.R. 688. (hereinafter "Gladue");

R. v. Wells (2000), 141 C.C.C. (3d) 368 (S.C.C.). (hereinafter "Wells");

Gladue (Aboriginal Persons) Court Fact Sheet, online: Aboriginal Legal Services of Toronto <http://www.aboriginallegal.ca >.

 

 

 

 

Part II – Position on the Questions in Issue

6. The Appellant raises two issues in this case: 1) whether general deterrence principles can be used in sentencing a young offender under the YCJA; and 2) the interpretation of s. 42(2)(o) of the YCJA. ALST’s submissions are focussed solely on the first issue – the role of general deterrence in the YCJA.

Appellant’s Factum, at p. 7

7. ALST submits that there is no role for general deterrence principles under the YCJA. ALST’s position is based on the following arguments:

1. The interpretation of the YCJA must be informed by the social context which led to its enactment, in particular Canada’s overuse of incarceration with respect to young people in general, and specifically, the dramatic over-representation of Aboriginal youth;
2. The YCJA sets out a complete code in relation to the sentencing of young offenders and ousts the jurisdiction of the Criminal Code and the common law in this area; and
3. General deterrence is ineffective when sentencing youth and its application would result in a disproportionately negative impact on Aboriginal youth.

Part III – Argument

1. Since 1985, this Honourable Court, when conducting analyses of legislation and the common law, has done so through the principled exercise of applying Charter values. Using the lens of equality as set out in section 15(1) allows for the consideration of the disproportionate impact of a particular piece of legislation on a disadvantaged group, even when the law in question is neutral on its face as to its application.

1. Overincarceration of Aboriginal youth in Canada

1. In order to properly address why deterrence is not a sentencing principle of the YCJA, it is important to understand the context under which this legislation was passed and the current environment regarding the incarceration of youth in Canada, particularly the incarceration of Aboriginal youth.

Gladue, at para. 28.

2. In Gladue, this Honourable Court decried the fact that Canada was among the world leaders in using incarceration as a response to adult criminal offending:

Canada is a world leader in many fields, particularly in the areas of progressive social policy and human rights. Unfortunately, our country is also distinguished as being a world leader in putting people in prison. Although the United States has by far the highest rate of incarceration among industrialized democracies, at over 600 inmates per 100,000 population, Canada's rate of approximately 130 inmates per 100,000 population places it second or third highest.

Gladue, at para. 52.

3. It was further found that with respect to the incarceration rates of Aboriginal people in Canadian prisons that,

[i]f over-reliance upon incarceration is a problem with the general population, it is of much greater concern in the sentencing of aboriginal Canadians.

Gladue, at para. 58.

4. In arriving at this conclusion this Honourable Court relied on data which showed the extent of the over-representation of Aboriginal people in prison. In 1999, at the time of the Gladue decision, Aboriginal people made up 18 % of all sentenced adult admissions to custody in Canadian prisons (federal, provincial and territorial).

Statistics Canada, Adult correctional services, admissions to provincial, territorial and federal programs (Canada), online: Statistics Canada <http://www40.statcan.ca/l01/cst01/legal30a.htm?sdi=adult%20correctional%20admissions> at p. 1.

5. In its analysis of Aboriginal over-representation, this Honourable Court looked specifically at the situation in provincial institutions in selected provinces and quoted extensively from Professor Michael Jackson’s article "Locking Up Natives in Canada:

In the case of the statistics regarding the impact of the criminal justice system on native people the figures are so stark and appalling that the magnitude of the problem can be neither misunderstood nor interpreted away… Bad as this situation is within the federal system, it is even worse in a number of the western provincial correctional systems... A study reviewing admissions to Saskatchewan's correctional system in 1976-77 appropriately titled "Locking Up Indians in Saskatchewan", contains findings that should shock the conscience of everyone in Canada. In comparison to male non-natives, male treaty Indians were 25 times more likely to be admitted to a provincial correctional centre while non-status Indians or Métis were 8 times more likely to be admitted. If only the population over fifteen years of age is considered (the population eligible to be admitted to provincial correctional centres in Saskatchewan), then male treaty Indians were 37 times more likely to be admitted, while male non-status Indians were 12 times more likely to be admitted… The Saskatchewan study brings home the implications of its findings by indicating that a treaty Indian boy turning 16 in 1976 had a 70% chance of at least one stay in prison by the age of 25 (that age range being the one with the highest risk of imprisonment). The corresponding figure for non-status or Métis was 34%. For a non-native Saskatchewan boy the figure was 8%. Put another way, this means that in Saskatchewan, prison has become for young native men, the promise of a just society which high school and college represent for the rest of us. Placed in an historical context, the prison has become for many young native people the contemporary equivalent of what the Indian residential school represented for their parents. [Emphasis in original].

M. Jackson, "Locking up Natives in Canada" (1989) 23 U.B.C. L. Rev 215 at 215-216 as cited in Gladue, at para. 60.

6. Prior to the enactment of the YCJA, Canada had the highest rate of youth incarceration in the Western World, including the United States.

Department of Justice Canada, Myths and Realities about Youth Justice, online: Department of Justice Canada <http://www.justice.gc.ca/en/ ps/jy/information/mythreal.html>, accessed on July 12, 2005, at p. 3;

R. v. J.K.E., [1999] Y.J. No. 119 (Yuk.Terr.Ct.-Youth Ct.) (Q.L.) at para. 60.

7. An examination of the incarceration rates of youth gives rise to serious concern. When Aboriginal youth rates of incarceration are isolated what emerges is a situation analogous to that of Aboriginal adult offenders, one which this Honourable Court found to be "a crisis in the Canadian criminal justice system."

Gladue, at para. 64.

8. A 2001 Statistics Canada study reported that in 1998/99 Aboriginal youth made up almost 25% of admissions to youth custodial facilities in Newfoundland and Labrador, Prince Edward Island, Nova Scotia, Manitoba, Alberta, British Columbia, Yukon and Northwest Territories. This rate, although not reflective of the entire country, was greater than the rate of adult Aboriginal incarceration which at that time was 20%.

Department of Justice Canada, A One-Day Snapshot of Aboriginal Youth in Custody Across Canada: Phase II, (Ottawa: Department of Justice Canada, February 2004), at p. 1;

Statistics Canada, Adult correctional services, admissions to provincial, territorial and federal programs (Canada), online: Statistics Canada <http://www40.statcan.ca/l01/cst01/legal30a.htm?sdi=adult%20correctional%20admissions> at p. 1.

9. The introduction of the YOA in 1985 was meant to curb the overuse of incarceration of young people. The fact that Canada continued to incarcerate so many young people suggests that the YOA was a failure. The continued reliance on custody resulted in the disproportionate incarceration of Aboriginal youth. In Bridging the Cultural Divide, The Royal Commission on Aboriginal Peoples noted:

The Cawsey task force found that in Alberta, custody dispositions for non-Aboriginal convicted young offenders declined by 8 per cent between 1986 and 1989, while custody dispositions for Aboriginal young offenders increased over the same period by 18.2 per cent…The Aboriginal Justice Inquiry (AJI) of Manitoba also concluded that young Aboriginal offenders in Manitoba received open custody sentences that were, on average, twice as long as those given to non-Aboriginal young offenders. In addition, 18 per cent of Aboriginal offenders receive closed custody sentences, compared to 11 per cent of non-Aboriginal offenders.

Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada (Ottawa: Minister of Supply and Services Canada, 1996), p. 117.

10. In June 2003, following the coming into force of the YCJA, the Department of Justice took a snapshot of Aboriginal youth in custody in Canada (for all provinces and territories other than Quebec). Aboriginal youth, although only 5% of the total youth population, made up 33% of youth in custody. This percentage is significantly increased from the 1998/99 figure of 25%.

Department of Justice Canada, A One-Day Snapshot of Aboriginal Youth in Custody Across Canada: Phase II (Ottawa: Department of Justice Canada, February 2004), at p. 3.

11. The Snapshot also found that Aboriginal youth are about eight times more likely to be incarcerated than non-Aboriginal youth.

While the incarceration rate for non-Aboriginal youth was 8.2 per 10,000 population, the incarceration rate for Aboriginal youth was 64.5 per 10,0000.

Department of Justice Canada, A One-Day Snapshot of Aboriginal Youth in Custody Across Canada: Phase II, (Ottawa: Department of Justice, February 2004), at pp. 3-4.

12. As noted in paragraph 13 above, in Gladue this Honourable Court specifically examined the overincarceration of Aboriginal adult offenders in Manitoba and Saskatchewan. According to the snapshot, in both these provinces, Aboriginal youth represented over 80% of the youth in custody although Aboriginal youth represented less than 20% of the youth in each province.

Department of Justice Canada, A One-Day Snapshot of Aboriginal Youth in Custody Across Canada: Phase II, (Ottawa: Department of Justice Canada, February 2004), at p. 3 (Table 1) and at p. 36 (Appendix D).

13. In Saskatchewan, an Aboriginal youth was 30 times more likely to be incarcerated than a non-Aboriginal youth. In Manitoba, where BWP lives, an Aboriginal youth was 16 times more likely to be incarcerated than a non-Aboriginal youth.

Department of Justice Canada, A One-Day Snapshot of Aboriginal Youth in Custody Across Canada: Phase II (Ottawa: Department of Justice Canada, February 2004), at p. 4.

 

14. One of the objectives of the YCJA is to reduce reliance on incarceration as a response to offending behavior by young people. Since its enactment, fewer youth are being incarcerated. As with the YOA, however, the primary beneficiaries of this reduced reliance on incarceration are non-Aboriginal youth. This explains the rise in the percentage of Aboriginal people as a proportion of all youth in custody.

Department of Justice Canada, A One-Day Snapshot of Aboriginal Youth in Custody Across Canada: Phase II, (Ottawa: Department of Justice Canada, February 2004), at pp. 5-6.

15. In Ontario from 2001/02 to 2003/04 (pre-YCJA to post-YCJA) the incarceration rate for Aboriginal youth dropped by 11.3% as compared to a 60.2% decline for non-Aboriginal youth.

Ministry of Community Safety and Correctional Services, Young Offender Admissions to Correctional Supervision: 2001/02 (2002: Toronto, Statistical Services, Correctional Services Division, MCSCS);

Ministry of Community Safety and Correctional Services, Phase II Youth Admissions to Correctional Supervision: 2003/04 (2004: Toronto, Statistical Services, Correctional Services Division, MCSCS).

16. Aboriginal female youth, in 2001/02, made up 30.5% of the female incarcerations in Ontario. In 2003/04, that figure rose to 59.3% (of the 86 female youth in secure custody, 51 of them were Aboriginal). This figure is shocking given the fact that Aboriginal youth only make up approximately 2.3% of Ontario’s youth population.

Ministry of Community Safety and Correctional Services, Young Offender Admissions to Correctional Supervision: 2001/02 (2002: Toronto, Statistical Services, Correctional Services Division, MCSCS);

Ministry of Community Safety and Correctional Services, Phase II Youth Admissions to Correctional Supervision: 2003/04 (2004: Toronto, Statistical Services, Correctional Services Division, MCSCS);

Department of Justice Canada, A One-Day Snapshot of Aboriginal Youth in Custody Across Canada: Phase II, (Ottawa: Department of Justice Canada, February 2004), at p. 36 (Appendix D).

17. This significantly lesser decline in incarceration rates for Aboriginal youth as opposed to non-Aboriginal youth (which is also reflected in incarceration rates for Aboriginal and non-Aboriginal adults post Bill C-41 in 1996) explains why Aboriginal people represent an ever-increasing percentage of youth in custody. If present trends continue we can expect that soon the only youth that will be imprisoned in Canada will be Aboriginal youth. This bleak forecast has virtually become a reality in many parts of Canada.

J.V. Roberts and R. Melchers, "The Incarceration of Aboriginal Offenders: Trends from 1978 to 2001" (April 2003) Can.J.Crim.& Crim. Just., 211 at 226.

 

 

 

(ii) Future trends with respect to incarceration of Aboriginal youth

18. The Aboriginal population of Canada is increasing at a faster rate than the general population. Statistics Canada estimates that Aboriginal people will make up 4.1% of the population in 2017 – up from 3.4% in 2001.

Statistics Canada, Projections of the Aboriginal populations, Canada, provinces and territories, 2001 to 2017 (Ottawa: Ministry of Industry, 2005), at. p. 8.

19. In those parts of Canada where Aboriginal young people are already significantly over-represented in prison, projections show an increase in the numbers in the Aboriginal youth population.

In the three territories, and in Manitoba and Saskatchewan, where the Aboriginal population represents a large share of their total population, the proportions of Aboriginal children aged 0 to 14 years are larger than in the rest of Canada. These proportions are projected to increase, especially in the two provinces. In 2017, 37 out of 100 children in Saskatchewan could be Aboriginal (26% in 2001). And 31 out of 100 in Manitoba (24% in 2001).

Statistics Canada, Projections of the Aboriginal populations, Canada, provinces and territories, 2001 to 2017 (Ottawa: Ministry of Industry, 2005), at. p. 10.

20. ALST submits that the social context of overincarceration of Aboriginal youth is a greater "crisis" than the over-representation of adult Aboriginal people in prisons as condemned by this Honourable Court. Therefore, this reality must inform the courts’ interpretation of the relevant provisions of the YCJA.

Gladue, at para. 64.

 

 

(B) The YCJA – A Complete Code for Sentencing Youth

(i) Pre-YCJA

21. In Canada, prior to 1996, the principles of sentencing were in the realm of the common law. While the Criminal Code set out the specific range of sentences for offences, it was the common law, and the jurisprudence from appellate courts, that guided judges in balancing the various sentencing principles – deterrence, denunciation, rehabilitation, and incapacitation when sentencing an offender.

Gladue, at paras. 33, 93.

22. In 1996, the landscape changed with the passage of Bill C-41. For the first time in Canada, Bill C-41 set out in a legislative framework, a set of principles that judges were to use in sentencing offenders. As this Honourable Court made clear in Gladue, this framework was not simply a restatement of the common law – but rather a new direction in sentencing that was remedial in nature and designed to respond to overincarceration in general and specifically to Aboriginal overincarceration. As such, it superseded common law principles. Bill C-41 changed the philosophy of sentencing.

Gladue, at para. 33.

23. The YOA incorporated all of the provisions of the Criminal Code other than those it explicitly overrode. Thus, while the YOA contained a broad statement of principles, sentencing under the YOA followed the common law. With the passage of Bill C-41, the YOA’s sentencing regime was necessarily changed. Sentencing of young offenders was then also guided by the relevant provisions of Bill C-41, including, significantly, section 718.2(e).

Judge M.E. Turpel-Lafond, "Sentencing within a Restorative Justice Paradigm: Procedural Implications of R. v. Gladue" (2000) 43 Crim. L.Q. 34 at 47-48;

R. v. A.J.J., [1999] S.J. No. 917 (Sask.Prov.Ct.) (Q.L.) at paras. 8, 10;

R. v. J.T., [2000] O.J. No. 5634 (Ont.C.J.) (Q.L.) at paras. 8-9.

 

(ii) Government response to crisis of overincarceration of Aboriginal youth

24. The Senate amended Bill C-7, the YCJA, before it passed third reading on December 18, 2001. The amendments added the wording of section 718.2(e) of the Criminal Code into section 38 (2) (d). Section 50 (1) of the YCJA was also amended to

explicitly incorporate the provisions of section 718.2(e) of the Criminal Code.

Canada. Senate Debates (4 December 2001)Volume 139, Issue 76, 1st Session, 37th Parliament, at pg. 1500, online: Senate <http://www.parl.gc.ca/37/1/parlbus/chambus/senate/deb-e/076db_2001-12-04-E.htm?Language=E&Parl=37&Ses=1#0.2.W54BJ2.JELGAD.

C1USNG.M1>.

25. When the amended Bill C-7 returned to the House of Commons for final approval, the then Minister of Justice, the Honourable Martin Cauchon, said in relation to the amendments:

The House of Commons now has an opportunity to consider and vote on this amendment which relates to the serious problem of the over-representation of aboriginal youth in custody. Canada generally incarcerates youth at higher rates than all other western countries and its incarceration rate for aboriginal youth is even worse. The over-representation of aboriginal people in custody was an issue identified in the Speech from the Throne and is one that the government is committed to address. I therefore urge members to give serious consideration to voting in favour of the amendment.

The amendment proposed by the Senate adds a sentencing principle that is essentially the same as the one in paragraph 718.2(e) of the criminal code. The courts will be required to take into consideration alternatives to incarceration for all young offenders, aboriginals in particular.

This amendment is in line with the current provisions of the bill, which provide that incarceration should only be imposed as a last resort and that measures should be proportionate and appropriate to the needs of young people, in particular those of young aboriginals. The amendment also reflects the content of a provision that is already included in the criminal code in the case of adults.

It is disturbing to see such a large number of young aboriginals in detention centres. While some young aboriginals do commit serious and violent offences that may justify the imposition of stiff penalties, detention is often imposed, even for less serious offences.

…

 

 

 

The amendment proposed by the Senate and the new act will provide a framework that will promote a fairer justice system that will be better suited to young aboriginals' needs.

Canada. House of Commons, January 30, 2002, 37th PARLIAMENT, 1st SESSION EDITED HANSARD • NUMBER 135, at p. 1535, online: Parliament of Canada http://www.parl.gc.ca/37/1/parlbus/chambus/house/debates/135_2002-01-30/HAN135-E.htm#Int-113678.

 

(iii) The philosophical shift in sentencing

26. The YCJA contains a complete guide for sentencing that totally supersedes the provisions of the Criminal Code and the common law. It is for this reason that section 50(1) of the YCJA makes specific reference to section 718.2(e). While similar wording to s. 718.2(e) can be found in the YCJA at s. 38(2)(d), the express adoption of section 718.2(e) in the YCJA allows judges to rely on Gladue and subsequent cases when interpreting the YCJA.

YCJA, ss. 38(2)(d) and 50(1).

 

 

27. When sentencing an adult offender, a judge must consider general deterrence, as provided for by section 718(b) of the Criminal Code, along with alternatives to incarcerations as set out in section 718.2(e). The YCJA, in contrast, through section 50 (1), explicitly excludes all of the provisions of section 718 other than section 718.2(e).

Contrary to the Appellant’s argument, the YCJA excludes the use of general deterrence as

a factor to be considered in the sentencing of youth.

J.V. Roberts and N. Bala, "Understanding Sentencing Under the Youth Criminal Justice Act" (2003) 41:2 Alta. L.Rev. 395 at 403-404;

R. v. K.D., [2003] N.S.J. No. 165 (N.S.S.C. (Fam.Div.)) (Q.L.) at paras. 14-15;

Appellant’s Factum, at paras. 44 and 45;

Criminal Code, s. 718(b).

28. In explaining the purpose of sentencing, as provided for under section 38(1) of the YCJA, the Department of Justice has stated that,

[d]enunciation, specific deterrence, general deterrence and incapacitation, which are sentencing objectives for adults under the Criminal Code, are not sentencing objectives under the YCJA. Section 50 of the YCJA states clearly that the purpose and principles of sentencing of adults under the Criminal Code which are contained in sections 718, 718.1 and 718.2 of the Criminal Code do not apply in proceedings under the YCJA, except for paragraph 718.2(e) which deals with Aboriginal offenders.

Department of Justice, YCJA Explained: Purpose of Sentencing (Subsection 38(1)) online: Department of Justice Canada <http://www.justice.gc.ca/en/ps/yj/ repository/3modules/04youth/3040301c.html> accessed on July 12, 2005, at p. 2.

29. Just as Bill C-41 marked a significant philosophical change in the way that adult offenders were to be sentenced, the YCJA has done the same with respect to the sentencing of young offenders. The YCJA represents a substantial change in sentencing philosophy and not simply a restatement of previous sentencing methodology. Indeed, it was dissatisfaction with the previous sentencing regime for young offenders, a regime that saw Canada lead the Western world in the incarceration of young people, that led Parliament to this profound philosophical shift. As with Bill C-41, the provisions of the

YCJA dealing with sentencing are remedial in nature.

Department of Justice Canada, Myths and Realities about Youth Justice, online: Department of Justice Canada <http://www.justice.gc.ca/en/ ps/jy/information/mythreal.html>, accessed on July 12, 2005, at p. 3-4;

Department of Justice Canada, Purpose of Sentencing (Subsection 38(1)), online: Department of Justice Canada <http://www.justice.gc.ca/en/ ps/jy/repository/3Modules/04youth/3040301c.html>, accessed on July 12, 2005 at p.1.

 

(iv) The inapplicability of R. v. M.(J.J.)

30. The Appellant relies on the decision of this Honourable Court in R v. M. (J.J.) for the principle that general deterrence is a valid consideration in the sentencing of young offenders. In that case, the Honourable Justice Cory found that,

The references to responsibility contained in s. 3 (1) (a) and to the protection of society in paras. (b), (d) and (f) suggest that a traditional criminal law approach should be taken into account in the sentencing of young offenders.

R. v. M. (J.J.) (1993), 81 C.C.C. (3d) 487 (S.C.C.) at para. 13 (hereinafter "R. v. M. (J.J.)").

31. The decision in R v. M. (J.J.) was issued in 1993. Not only did the decision pre-date the enactment of the YCJA, it also pre-dated the enactment of Bill C-41. Thus the context for the decision in R v. M.(J.J.) was simply a consideration of the general common law principles of sentencing as they applied to young offenders. The legislative environment has changed dramatically since that decision, so dramatically that the case no longer can have any precedential value.

(C) The Ineffectiveness of General Deterrence and its Disproportionate Impact on Aboriginal Youth

(i) General deterrence ineffective for youth

32. ALST accepts the following definition advanced by the Respondent,

[d]eterrence…refers to amplifying, increasing or making more harsh a sentence for a particular offence in order to "send a message" to others that such conduct will attract a draconian punishment.

Factum of Respondent, at para. 27.

33. Sentencing based on the principle of general deterrence uses the offender as the vehicle through which a message is sent to others, regardless of the detriment that increased punishment may have on the offender’s rehabilitation.

von Hirsch, A. et al., Criminal Deterrence and Sentence Severity: An Analysis of Recent Research (Oxford-Portland Oregon: Hart Publishing, 1999), at pp. 6-7.

34. In deciding to exclude deterrence as a principle of sentencing for young offenders, Parliament relied on the dominant trend in social science literature which found that there is no conclusive proof that incarceral sentences or increased incarceral sentences have, on

their own, any general deterrent effect on youth.

Doob, A.N. and Webster, C.M., Crime and Justice: A Review of Research, Volume 30 (Chicago: The University of Chicago, 2003) at p. 187;

M.W. Lipsey, D.B. Wilson and L. Cothern, "Effective Intervention for Serious Juvenile Offenders – Interventions for Noninstitutionalized Juveniles" (April 2000) Juv.Jus.Bull. p. 2, online: Juvenile Justice Bulletin <http://www.ncjrs.org.html/ojjdp/jjbul2000_04_6/pag3.html> accessed on July 12, 2005;

A.W. Leschied, "Implementing Alternatives to Custody in Addressing Youth Crime: Applications of the Multi-Systemic Therapy Approach in Canada", speech presented at Beyond Prisons Symposium conference (Kingston: Correctional Service Canada, 1998), online: Correctional Service Canada < http://www.csc-scc.gc.ca/text/forum/bprisons/speeches/7_e.shtml> accessed July 20, 2005 at pp. 1-2;

Manson, A., The Law of Sentencing (Toronto: Irwin Law, 2001) at pp. 43-46.

35. In rejecting the use of deterrence as a principle of sentencing, Parliament recognized that general deterrence is counter-productive to the sentencing of young offenders for two related reasons. First, the sentencing regime for young people under the YCJA emphasizes crafting a sentence that addresses the needs of the young person. Young offenders are seen as different from adult offenders. Exposure to the more coercive and harsher elements of the system, i.e., incarceration, are seen to be counter-productive to the development of the young person and thus to her or his move away from criminal behavior. For this reason the YCJA attempts to limit, as much as possible, the use of incarceration as a sentence and to limit the amount of time a young person will be incarcerated.

YCJA, ss. 3, 38, and 39;

J.V. Roberts and N. Bala, "Understanding Sentencing Under the Youth Criminal Justice Act" (2003) 41:2 Alta. L.Rev. 395 at 396, 409;

Green, R.G. and Healy, K.F., Tough on Kids: Rethinking Approaches to Youth Justice (Saskatoon: Purich Publishing Ltd., 2003) at p. 143.

36. The second reason that deterrence is not effective for youth is that studies conclude that young people simply do not respond to messages the same way as adults. The period of adolescence is one where notions of self and others are formed and behavior that might not be expected of adults can often occur. For this reason, it is unlikely to expect young people to consider the consequences of their actions in the same way as one might hope that adults would do. Under these circumstances it is unlikely that any message of general deterrence through sentencing will be successful.

W.D. Foglia, "Perceptual Deterrence and the Mediating Effect of Internalized Norms Among Inner-City Teenagers" (November 1997) 34:4 J.Rsch.Crim. & Del. 414 at 433 – 435;

S.W. Baron and L.W. Kennedy, "Deterrence and homeless male street youths" (January 1998) Cdn.J.Crim. 27 at 49-52;

Green, R.G. and Healy, K.F., Tough on Kids: Rethinking Approaches to Youth Justice (Saskatoon: Purich Publishing Ltd., 2003) at p.138-139.

37. Parliament’s decision to remove deterrence as a sentencing principle is eminently supportable by research and practical experience. It is a decision that is open to Parliament to make and it is also in keeping with the trend to legislate sentencing principles as opposed to relying on the common law.

Department of Justice Canada, Purpose of Sentencing (Subsection 38(1)), online: Department of Justice Canada <http://www.justice.gc.ca/en/ ps/jy/repository/ 3Modules/04youth/3040301c.html> , accessed on July 12, 2005, p.1.

(ii) General deterrence and the incarceration of Aboriginal youth

38. There is no reason to conclude that sentencing an Aboriginal young offender on a deterrent basis will deter non-Aboriginal offenders or other Aboriginal offenders. While Aboriginal young people are a minority of the population, they are quickly on the way to becoming the majority of incarcerated young people. Indeed, as already noted, in Manitoba, Saskatchewan and all three territories, Aboriginal youth make up the vast majority of young people in custody despite the fact that in the two provinces, Aboriginal youth represent less than 20% of the youth population.

Green, R.G. and Healy, K.F., Tough on Kids: Rethinking Approaches to Youth Justice (Saskatoon: Purich Publishing Ltd., 2003) at p.91.

39. Given this reality, there can be no message of deterrence received by a non-Aboriginal young person when an Aboriginal youth is sent to jail. In the five jurisdictions mentioned above, the message is not that the commission of a particular offence results in jail, rather it is that the commission of the offence by Aboriginal youth means that Aboriginal youth go to jail. In the three territories in Canada, at the time of the 2003 snapshot, there was only one non-Aboriginal youth in custody. In Saskatchewan there were only 28 non-Aboriginal youth in custody (of a total of 231) and in Manitoba only 35 (of a total of 173).

Department of Justice Canada, A One-Day Snapshot of Aboriginal Youth in Custody Across Canada: Phase II, (Ottawa: Department of Justice Canada, February 2004), at p.3 (Table 1).

40. The overincarceration of Aboriginal people has created stereotypes regarding Aboriginal people and criminality. In Williams, this Honourable Court adopted the statement from Professor Michael Jackson’s work, "Locking Up Natives in Canada" that,

There is an equation of being drunk, Indian and in prison. Like many stereotypes, this one has a dark underside. It reflects a view of native people as uncivilised and without a coherent social or moral order. The stereotype prevents us from seeing native people as equals.

M. Jackson, "Locking up Natives in Canada" (1989) 23 U.B.C. L. Rev 215 at 218 as cited in Williams at para. 58.

41. This stereotype and the racism towards Aboriginal people, as recognized by this Honourable Court in Williams and Gladue, militates against non-Aboriginal youth being deterred by the incarceration of Aboriginal youth. In the case at bar, which involves the sentencing of an Aboriginal youth who committed an offence while intoxicated and who lived on the largely Aboriginal "mean streets" of Winnipeg, there is no reason to think that a non-Aboriginal youth would be deterred by the incarceration of B.W.P.

R. v. B.W.P., [2003] M.J. No. 331 (Man.Prov.Ct.)(Q.L.) at paras. 17, 85.

(iii) Threat of incarceration has no deterrent effect on Aboriginal youth

42. Given that Aboriginal youth make up an increasing number of those incarcerated in youth custodial facilities, it might be argued that it is even more imperative to send a message to Aboriginal youth to deter them from criminal behaviour. The idea that an incarceral sentence for an offender such as BWP would deter other Aboriginal young people is fallacious for three reasons.
43. First, it cannot be contended that Aboriginal youth do not know that committing a criminal offence can lead to jail. As was noted above in paragraph 21, an Aboriginal youth in Manitoba is 16 times more likely to go to jail than a non-Aboriginal young person. In addition, the over-representation of Aboriginal people generally in jail in Canada cannot have escaped the notice of Aboriginal youth. In Manitoba, for example, in 2001, Aboriginal people made up almost 70% of the adult admissions to provincial custody while Aboriginal people made up under 14% of the total population. For Aboriginal youth in Manitoba, it is likely that they have a family member or friend either in custody or with a history of incarceration. The fact that Aboriginal rates of over-representation in both adult and youth facilities continue to rise in Canada is perhaps one of the most compelling arguments against the efficacy of general deterrence for Aboriginal youth. There is no doubt that Aboriginal youth have received the message about the consequences of criminal activity, yet that message has not had an impact on rates of over-representation.

Department of Justice Canada, A One-Day Snapshot of Aboriginal Youth in Custody Across Canada: Phase II, (Ottawa: Department of Justice Canada, February 2004), at p. 4;

R. v. Gingell, [1996] Y.J. No. 52 (Yuk.Terr.Ct.) at para. 63;

Green, R.G. and Healy, K.F., Tough on Kids: Rethinking Approaches to Youth Justice (Saskatoon: Purich Publishing Ltd., 2003) at p.95.

44. This then leads to the second problem with general deterrence as it relates specifically to Aboriginal offenders. The rationale of general deterrence is that the potential lawbreaker somehow carefully calculates the consequences of a sentence when he or she decides to commit a crime. This suggests that those who engage in criminal activity do so as the result of rational cost-benefit analysis. The extent to which any offender engages in such behaviour is open to question, however, it is clear that this construction of a reasonable potential criminal offender does not fit young Aboriginal offenders. As this Honourable Court found in Gladue,

These findings [regarding Aboriginal over-representation] cry out for recognition of the magnitude and gravity of the problem, and for responses to alleviate it. The figures are stark and reflect what may fairly be termed a crisis in the Canadian criminal justice system. The drastic over-representation of aboriginal peoples within both the Canadian prison population and the criminal justice system reveals a sad and pressing social problem.

…

It is clear that sentencing innovation by itself cannot remove the causes of aboriginal offending and the greater problem of aboriginal alienation from the criminal justice system. The unbalanced ratio of imprisonment for aboriginal offenders flows from a number of sources, including poverty, substance abuse, lack of education, and the lack of employment opportunities for aboriginal people. It arises also from bias against aboriginal people and from an unfortunate institutional approach that is more inclined to refuse bail and to impose more and longer prison terms for aboriginal offenders.

Gladue, at paras. 64-65.

45. The historic effects of marginalization, colonization, institutionalization, violence, broken families and communities, psychological trauma, addiction and Fetal Alcohol Spectrum Disorder continue in many cases to be transmitted to young Aboriginal people. As this Honourable Court noted in Gladue, such factors are strong contributors to Aboriginal peoples’ conflicts with the law. The existence of these factors strongly mitigate against any general deterrent effect of sentencing on Aboriginal youth.

Green, R.G. and Healy, K.F., Tough on Kids: Rethinking Approaches to Youth Justice (Saskatoon: Purich Publishing Ltd., 2003) at pp.91-93;

Wesley-Esquimaux, C.C. and Smolewski, M., Historic Trauma and Aboriginal Healing (Ottawa: Aboriginal Healing Foundation, 2004) pp. 65-76;

Gladue, at paras. 64-65.

46. Finally, Parliament has specifically adverted to the crisis of Aboriginal over-representation in the Canadian criminal justice in sections 38(2)(d) and 50(1) of the YCJA. Incarcerating Aboriginal youth in the vain hope that such an action might deter others stands diametrically opposed to the will of Parliament expressed clearly in the YCJA.

Canada. House of Commons, January 30, 2002, 37th PARLIAMENT, 1st SESSION EDITED HANSARD • NUMBER 135, at para. 1535, online: Parliament of Canada http://www.parl.gc.ca/37/1/parlbus/chambus/house/debates/135_2002-01-30/HAN135-E.htm#Int-113678.

 

(iv) Consideration of deterrence in sentencing the Respondent is inappropriate

47. The Appellant is urging in this case that BWP, an Aboriginal offender, receive an incarceral sentence even though the trial judge found that such a sentence will not aid in his rehabilitation or development as a productive member of his community. The reality of life in jail, the discrimination in penal institutions highlighted by this Honourable Court in Gladue and the existence of highly organized gangs in penal institutions, would certainly mean that BWP would emerge from a period of custody worse off than before he entered the institution. An outcome that puts BWP and his community in greater jeopardy than if he received a non-incarceral sentence cannot be justified by the YCJA and should not be tolerated by Canadian society.

R. v. B.W.P., [2003] M.J. No. 331 (Man.Prov.Ct.) (Q.L.) at paras. 74, 78-83

Gladue at paras. 61-63, 68;

The Standing Senate Committee on Aboriginal Peoples, Urban Aboriginal Youth: An Action Plan for Change (Ottawa: Senate, October 2003) at p. 77.

48. The Appellant suggests that sentencing BWP to a period of incarceration will somehow deter others from engaging in similar behaviour. This assumption is highly speculative and questionable, as found in numerous social science studies.
49. ALST submits that if the Appellant’s arguments were to succeed, then Aboriginal youth, such as BWP, would be targeted as the instruments of general deterrence. This will result in greater over-representation of Aboriginal youth in custodial facilities, fail to accomplish any of goals of general deterrence, and override the express will of Parliament.

 

Part IV – Submissions With Respect to Costs

50. ALST does not seek any costs for its intervention, but submits to this Honourable Court that costs should not be awarded against ALST in the event that this appeal succeeds. As noted above, ALST is a non-profit legal aid clinic with limited financial resources that are used to assist a significant number of indigent Aboriginal people involved in various kinds of legal difficulties.

 

Part V – Order Sought

51. The intervener ALST seeks that this appeal be dismissed.

ALL OF WHICH IS RESPECTFULLY SUBMITTED,

Dated this 22^st day of July, 2005.