Scales of Justice: Rehabilitation and Accountability - Jenna Symons
In an effort to reduce the over representation of Indigenous people in the penal system the courts have approached sentencing with a restorative justice mentality. The goal of restorative justice is to promote rehabilitation and reintegration of the offender into society, which often leads to no or reduced time in jail. The movement towards restorative justice places the court in the precarious position of balancing the rehabilitative needs of the offender with holding the offender accountable for their actions. The case of R v JGHW demonstrates the multitude of factors to be considered when deciding on a fair sentence, and just how difficult this balance is to achieve.
The case of R v JGHW 1 deals with the sentencing of JGHW, a youth, under the Youth Criminal Justice Act (YCJA). JGHW was charged with sexual offences occurring over a period of three years concerning his two younger brothers approximately 1 ½ and 8 ½ years of age. JGHW plead guilty to a total of six charges: two counts of sexual interreference s 151; two counts of making child pornography s 163.1(2); two counts of distributing child pornography s 163.1(3); and two counts of making arrangements for a child under the age of 16 years to be sexually assaulted s 172.2(1)(b). The trial judge decided that an appropriate sentence was 2 years probation, and it is this sentence that was the focus of the appeal.
When determining a sentence there are many mitigating and extenuating circumstances for a trial judge to factor in. In this case the judge was required to consider section 718.2(e) of the Criminal Code, a Gladue report, and the decision-making ability (or limits thereof) of JGHW.
Section 718.2(e) of the Criminal Code states the following:
All available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
This section of the Code was refined in R v Gladue 2 to create what is commonly known as a Gladue report. This report is developed with a focus on the adverse background and cultural impact factors for the purpose of mitigating or reducing the culpability of Aboriginal offenders subject to their s 718.2(e) right. During the sentencing the courts consulted a Gladue report created for JGHW which shed light on the sexual abuse suffered by JGHW at the hands of his biological father during infancy. The trial judge determined that the lifelong trauma that childhood sexual abuse fosters should not be undervalued and proceeded to use JGHW’s past trauma as a mitigating factor for sentencing. 3
Additionally, a forensic report revealed that JGHW suffered from cognitive processing delays, adaptive functioning difficulties, and executive functioning limitations. These would have the potential to impact JGHW’s decision making abilities, calling into question if JGHW fully understood his actions. For this purpose, the trial judge considered that the cognitive processing delays may have made JGHW less able to resist participating in such sexual offences.
The Crown appealed the sentence on the issue that a two-year probationary sentence was inadequate to hold JGHW accountable under s 38(1) of the YCJA:
The purpose of sentencing under section 42 (Youth Sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to long-term protection of the public.
The courts in R v McClements 4 held that a meaningful sentence to hold a young person accountable must reflect the following three criteria:
The moral culpability of the young person, having regard to the intentional risk taking of the young person;
The consequential harm caused by the young person; and
The normative character of the young person's conduct. Which requires the court to consider societal values and whether, for example, the "circumstances of the offence are shocking to the community." 5
The court of appeal applied the criteria to JGHW. First, the question of moral culpability where the court found that although JGHW had originally claimed that his actions were the result of threats, it was determined that no threat to JGHW had existed and that he was a willing participant in the abuse 6 of his younger brothers. JGHW’s actions were described as “predatory” however, this description was contested by the court; it was determined that JGHW’s was in fact morally culpable for his actions.
Second, the harm done to the two younger brothers was, and is, severe, the trial judge acknowledged that the brothers will serve life sentences 7 as a result of the abuse suffered at the hands of their older brother JGHW. This placed the harm done as consequential requiring that it be seriously considered when determining the accountability of the sentence.
The third criteria analyzed JGHW’s conduct surrounding the abuse and found it to be extremely aggravating. JGHW live streamed his abuse via his Ps3 a fact that cannot be ignored or minimized according to the trial judge. JGHW also proceeded to correspond online with an individual under the username of “Satan disciple” to arrange for “Satan disciple” to sexually abuse his younger brothers to whom JGHW referred as “the 2 anal baits' '. The vulgarity of these events was severely shocking to the community.
The original two-year probationary sentence was found to promote rehabilitation but failed to hold JGHW accountable or take the consequential harm and normative conduct of the youth into account. The original sentence was overturned and replaced with more just sanctions that included jail time. However, by the time of the appeal JGHW was 21 years of age and it would no longer serve in the interests of justice to see him remanded into custody, so the sentence was stayed.
What does this mean for future similar cases? Going forward sentencing for cases with similar facts and issues will more closely resemble the court of appeal’s sentence which included some time in custody, rather than the purely probationary sentence.
The case of JGHW put a spotlight on the difficulties of sentencing, reformative justice, and accountability raising some important questions. Is restorative justice being undermined by the over focus on the offender while undervaluing accountability? Restorative justice looks at the mitigating and aggravating factors for the offender only, whereas the criteria for holding a youth accountable does not ignore the offender by only taking into account the community and the victims in determining if accountability has been achieved. Instead accountability is approached through consideration of the individual offender, the victim(s), and the community. The court of appeal’s analysis shows that this is where the original sentence for JGHW erred, JGHW himself, and all mitigating factors, were considered leading to the original two-year probationary sentence. However, the victims and the community failed to be adequately considered during sentencing which resulted in a sentence that was in line with restorative justice and rehabilitation but failed to hold JGHW accountable. The focus on the offender while ignoring the victims and community caused the case to be subjected to the appeals process, dragging out the case in this way appears contrary to the purpose of rehabilitation and reintegration into society.
Should an accountability analysis be automatically completed for any restorative justice sentencing? Could this help prevent the problem in JGHW where in order to achieve a balance between rehabilitation and accountability the case required an appeal taking longer than necessary.
Finally, what are the long-term implications for reintegration of the offender into society if the victims and the community are left out of the restorative justice process? Do we create a larger burden of recovery for the offender by dismissing the recovery often needed by the community and victims by way of accountability?
The Canadian criminal justice system needs restorative justice because incarceration is not always the answer. However difficult the rehabilitative intent of restorative justice must be balanced with accountability, and the courts must put an emphasis on achieving this balance, otherwise we risk dragging a case through extended court processes as we have seen in the case of R v JGHW.
1 R v JGHW, 2020 MBCA 86 [JGHW].
2 R v Gladue, 1999 1 S.C.R 688.
3 Ibid at para 5.
4 R v McClements, 2017 MBCA 105 at para 45.
5 JGHW, supra note 1 at para 13.
6 Ibid at para 15.
7 Ibid at para 16.