Challenges of Sentencing - LawStudent2
A primary principle of Canadian law is the principle of stare decisis. An implication of stare decisis is that it ensures that there is consistency in the law; however, it also means that there is limited to no room for consideration of an offender and their circumstances in the application of the law. The fundamental purpose of sentencing as outlined in s. 718 of the Criminal Code is to contribute to the maintenance of a just, peaceful, and safe society. However, unlike the typical application of law, sentencing does allow for consideration of characteristics of the offence and the individual offender being convicted. The position that will be advanced in this blog is that the sentencing mechanisms and options available in Canada are insufficient to accommodate the various characteristics of offenders in the Canadian judicial system.
Sentencing is one of the most complex aspects of the judicial process. Sentencing requires a judge to exercise a great deal of discretion to arrive at a just sentence that considers all the unique aspects of an offence and an offender. Minimum and maximum sentences, as well as section 718.2 of the Criminal Code, which outlines a number of aggravating factors, help to guide judges when making sentencing decisions by minimizing the discretion these judges are given. However, even in a case which involves a mandatory sentence, as well as minimum and maximum periods for parole ineligibility, the judge will still have a very difficult task. There is certain information that is always relevant to a judge when deciding on a just sentence. One of these relevant factors is a past criminal record. A past criminal record is relevant with regard to determining the applicability and need for leniency, discharge, specific deterrence, separation of the offender, the gap principle, and the jump principle.
The case of R v Brass involves a mandatory sentence, a mandatory minimum period before parole eligibility, a maximum period prior to parole eligibility, aggravating factors outlined in section 718.2, and a number of Gladue principles that operate as mitigating factors. Despite all the guiding principles relevant to the case, the judge was still tasked with an extremely challenging responsibility. This case demonstrates not only the complexity of sentencing decisions despite extensive guidance from statutes and previous judicial decisions, but it also shows how these various factors are exercised in practice.
R v Brass
Brass was convicted of second-degree murder in the death of Christopher Chartand. Section 718.1 of the Criminal Code demands that sentences be proportionate to the gravity of an offence. This means that, naturally, the mandatory sentence for first and second-degree murder is life in prison. The role of the judge in sentencing these cases is to determine the period that must lapse before an offender is eligible for parole. Brass involved a number of both aggravating and mitigating factors that influenced the determination of what constituted a just sentence in the case. The medical examiner concluded that Mr. Chartand had been injured by a sharp edge at least fifteen times; thus, this was a very violent offence. Mr. Brass’ upbringing was full of challenges. He reportedly had to deal with abuse and was in the foster system for a significant number of his formative childhood years. It is said that violence was extremely prevalent in the accused’s childhood to the point where violence became a learned response for him. All these factors contributed to Brass falling into drug and alcohol use at a very young age. Despite everything just mentioned, the factors in this case were not all mitigating. As mentioned, violence became a learned behaviour for the accused. Prior to the murder, Brass had been convicted of twenty-two offences in a twelve-year span. Of these convictions, seven were for assault charges including aggravated assault, assault causing bodily harm, and assault with a weapon. These convictions demonstrated a dangerous pattern of behaviour that needed to be considered for the purposes of sentencing.
The position of the Crown in this case was that Brass should not be eligible for parole for eighteen years, while the defence argued that Brass should be eligible after serving fourteen years. The judge ultimately sentenced Brass to life in prison with no parole for seventeen years from the date of his arrest. It is hard to argue with or concede to the sentences judges impose because of the great deal of judicial discretion that is required at this stage of a trial. The sentence imposed by the judge fell in the middle of the maximum and minimum periods of parole ineligibility for the offence of second-degree murder. It may seem that in a case where there are significant factors weighing in favour of and against the accused, the middle ground would be most appropriate; however, sentencing is a far more complex practice than this.
Given that Brass’ prior offences as well as the offence in this trial were all of a violent nature, his previous record was particularly relevant. It was held that neither the gap principle nor the Gladue principles could be given much weight in the case due to the violent nature of the offence. The factors outlined in Wright were all found to be aggravating rather than mitigating in Brass’ case.
As mentioned, while many Gladue principles were relevant here, these principles were an aspect of sentencing factors that were not given significant weight in the trial judge’s decision. The Gladue principles of sentencing recognize the unique circumstances of offenders who identify as Indigenous. The factors these principles call upon judges to consider (in applicable cases) include racism, loss of language, the legacy of dislocation and residential schools, poor economic conditions, and foster care. As mentioned, the judge in Brass determined that the Gladue principles were of very minimal impact in the case due to the nature of the offence of murder and Brass’ propensity for violence. These principles, while hesitantly being considered a step in the right direction, have been described as “one more recommendation that is only mildly effective.”
The approach that has been taken by Canadian courts with regard to the Gladue principles has been two-tiered in a method that emulates the German prison system. In Germany, prison systems are split into two forms: open and closed prisons. Open prisons integrate the offenders more actively in the community, while closed prisons are significantly more restricted.  Similarly, it is the goal in sentencing Aboriginal offenders to opt for community-based sentences over strict incarceration wherever possible. Circumstances considered when deciding between the available sentencing options are quite similar when it comes to section 718.2(e) sentencing as they are in decisions between open and closed prison sentences. Both consider aspects such as community support and the violent nature of the offence an offender has been convicted of. With so many similarities, it is difficult to not wonder why the German system has seen great success while the Gladue principles continue to prove themselves to be challenging, confusing, and insufficient.
The position I will attempt to advance is not that Western solutions are the answer to issues of Indigenous incarceration, and, of course, there are many unique systemic and generational considerations that need to be addressed in relation to Indigenous offenders that German policy makers did not consider. However, the fundamental German sentencing methodology could pose a valuable starting point for Canadian policy makers in addressing the issues the Gladue principles have failed to address. The fundamental principles in German sentencing are quite different to Canada’s fundamental principles. The fundamental tenets of the German sentencing process are rehabilitation and resocialization. These principles are central in all German sentencing provisions, whether the offence is violent or non-violent in nature. The greater Canadian emphasis on retribution is evidence that the courts emphasize aggravating aspects of the Wright principles over the Gladue principles of sentencing. I believe a focus on support and rehabilitation in all offences, or at least the option for rehabilitative sentences, is required to adequately address the unique circumstances of all offenders. The benefits of a system focused on rehabilitation and reintegration is evidenced by the low recidivism rates in countries like Germany and Norway. I think proper reintegration into society and keeping individuals from reoffending are essential to improving conditions for individuals currently in trouble with the law and curbing intergenerational impacts of incarceration.
Canadian courts have attempted to address the systemic issues present in sentencing. However, these attempts have fallen short of being successful, and Canadian courts still have a lot to learn. The courts ask for patience as they unlearn the systemic racism that has been prevalent in the court systems for many years. As discussed in Brass, violence is also a learned concept; however, the courts do not seem to be prepared to grant the grace they demand to allow for unlearning when it comes to those impacted by the generational implication of these systematic problems.
 Criminal Code, RSC 1985, c C-46, s 718.  R v Wright, 2010 MBCA 80 at para 7.  Ibid.  R v Brass, 2021 MBQB 272 [Brass].  Criminal Code, supra note 1, s 235(1).  Brian Pfefferle, “Gladue Sentencing: Uneasy Answers to the Hard Problem of Aboriginal Over-Incarceration” (2008) 60 Man LJ 143 at para 15.  Ibid at para 99.  Lana Osment, The Complexity of Rehabilitation in Open and Closed Prison Setting (Lund: Lund University, 2018) at 2.  Ibid.  Criminal Code, supra note 1, s 718.2(e).  Pfefferle, supra note 6 at para 100.  Osment, supra note 8 at 12.  Meagan Denny, “Norway’s Prison System: Investigating Recidivism and Reintegration” (2016) 10:2 Bridges: A Journal of Student Research 22 at 23.