Aboriginal Sentencing Principles Debated in Saskatchewan

October 22, 2014

By Alan Kilpatrick

Three recent articles from the StarPhoenix debated Aboriginal sentencing principles in Saskatchewan courts.

A StarPhoenix editorial from September 27, 2014 commented that Cunliff Barnett, a retired British Columbia judge, had recently criticized Saskatchewan courts for failing to take cultural factors into account or use Gladue reports when sentencing Aboriginal people.  WJ Vancise, a retired Saskatchewan Court of Appeal judge, provided a strong rebuttal on October 3, 2014.  Vancise asserted that Barnet had misrepresented the facts and that Saskatchewan courts are at the forefront of progressive sentencing principles for Aboriginal offenders.

On October 10, 2014, a Saskatoon lawyer named James Scott entered the debate.  Scott explained that he disagreed with Vancise.  Scott’s research supported Barnett’s criticism of the Saskatchewan Courts.   It suggests Gladue principles, cultural factors, and progressive Aboriginal sentencing principles have not been promoted by the majority of judges in Saskatchewan.

What do you think about Aboriginal sentencing in Saskatchewan?  Please find excerpts from all three articles below.

Time to adopt Gladue reports
September 27, 2014
Editorial

Considering Saskatchewan has the highest percentage of native people in custody among the provinces, it’s remarkable its court system continues to routinely give short shrift to the Supreme Court’s 15-year-old directive judges need to be informed and mindful of cultural factors in sentencing aboriginal offenders.

Even though judges in jurisdictions such as Ontario, British Columbia and Alberta now regularly use “Gladue reports” – named for the defendant in the 1999 Supreme Court decision that led to their creation – the documents are a rarity in Saskatchewan courts and, it sadly appears, are bound to remain that way unless there’s pressure on the provincial Justice Ministry to heed the high court.

In a recent presentation to a Saskatchewan Legal Aid conference, retired B.C. justice Cunliff Barnett rightly took aim at judges in this province for dragging their feet…

Gladue factors regularly applied in Sask. Courts, October 3, 2014
October 3, 2014
W.J. Vancise, Retired Saskatchewan Court of Appeal Judge

I am somewhat surprised and indeed shocked by the comments of a retired British Columbia provincial court judge, Cunliffe Barnett, regarding the alleged failure of judges in Saskatchewan to apply the so-called “Gladue factors” when sentencing aboriginal offenders.

While Barnett is entitled to his opinion, he is not entitled to ignore facts or misrepresent what actually goes on in this province. As I will point out, he is just wrong when he baldly states that, “I have found not a single Saskatchewan decision – not in the provincial court, the Court of Queen’s Bench, or the Saskatchewan Court of Appeal – where any judicial attention was paid to the Supreme Court’s call for a new approach.”

The fact is trial judges in Saskatchewan have been in the forefront in taking into account the alternative approaches to sentencing set out in the 1996 amendments to the Criminal Code, and in taking into account the Gladue factors when sentencing aboriginal offenders…

Sentencing bias in Sask. Evident, October 10, 2014
October 10, 2014
James Scott, Criminal Defence Lawyer in Saskatoon

Justice W.J. Vancise expressed concern regarding criticisms of Saskatchewan’s sentencing regime in his viewpoint article, Gladue factors regularly applied in Sask. courts (SP, Oct. 3). While I have enormous admiration for the retired justice, I respectfully disagree with his following statement: “The fact is trial judges in Saskatchewan have been in the forefront in taking into account the alternative approaches to sentencing set out in the 1996 amendments to the Criminal Code, and in taking into account the Gladue factors when sentencing aboriginal offenders.”

Later, when speaking for the majority of the Court of Appeal in R. v. Laliberte, 2000, he heralded the Supreme Court’s Gladue principles of restorative justice. Unfortunately, I have found data that indicate most of the other judges in Saskatchewan have not been as progressive as Vancise.

I have researched all of Saskatchewan’s written sentencing decisions for the Court of Queen’s Bench and Provincial Court on the Canadian Legal Information Institute’s website (www.canlii.org) since 1996. Based on my review of these written decisions, I have concluded that Justice Vancise’s belief in restorative justice has not been promoted by the vast majority of Saskatchewan’s judges.

I found that Gladue principles were not applied in 169 of Saskatchewan’s CanLII sentences for aboriginals between 1999 and June 2014, and I conclude that Gladue principles were applied in only 23 of such sentencing decisions during that period…