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| John L. Hill |
One study confirmed that “Children and adolescents who become involved in [programs of adoption and fostering] are often burdened by a number of risks that elevate their vulnerability to behavioral and developmental problems. They may have experienced chronic poverty, dysfunctional and disrupted family situations, abuse and neglect. The problems that these children face are known to predispose them to juvenile conduct problems and delinquency that, if not remediated, may persist into adulthood.” (Lindquist and Santavirta, 2014).
Parliament has recognized the potential for dysfunction in Indigenous cultures in recognizing that the courts in sentencing Aboriginal offenders ought to take their Indigeneity in account in what have become known as the Gladue principles.
Unfortunately, once sentenced to imprisonment, there is a systemic blindness when it comes to the benefits of reconciling an offender with his or her culture. A prisoner may be Inuit, Métis or from a First Nation, but the distinctions in the various cultures are ignored and everyone is treated equally to the detriment of rehabilitation.
A prime example of the systemic blindness is the case of R. v. Kehoe 2023 BCCA 2. A trial judge in Chilliwack, B.C., sentenced 30-year-old David Jonathan Michel Kehoe to five years imprisonment for aggravated assault in stabbing one of three young men raising a ruckus in the parking lot near Kehoe’s apartment. Kehoe was drunk and resented the disturbance the three had been causing.
At trial it was put in evidence that Kehoe had been raised in a household consisting of a non-Indigenous stepfather and a Métis mother. The stepfather dealt drugs and the son was exposed to a family life of alcohol and drugs. Kehoe only recently discovered his Métis background but had always perceived himself as an outsider in his peer group. The defence argued that a sentencing court should look to s. 718.2 (e) of the Criminal Code and Gladue principles that aimed to bridge the disconnect stemming from Canada’s colonial history and assimilationist policies. The Crown was blind to how this historical background could have any relevance to the assault that could have easily been a murder. The trial judge agreed and ignored Gladue principles.
The British Columbia Court of Appeal took a more enlightened approach. It recognized that the cases of R. v. Gladue [1999] 1 S.C.R. 688 and R. v. Ipeelee 2012 SCC 13 recognized that s. 718.2(e) required a court to give particular attention to the circumstances of Aboriginal offenders that are over-represented in crisis proportions in prison populations. In one paragraph, the court summarized the logic behind this process: “This crisis is driven by the alienation, poverty, substance abuse, lower educational attainment, lower rates of employment, and prejudice experienced by Indigenous people in Canada.” The harm has been exacerbated by our colonial history and post-colonial assimilationist policies.
The Appeal Court concluded that the basis for the Crown's minimization of Kehoe’s Indigenous background was a continuation of the assimilationist policies once practised in Canada. Would Kehoe’s life have been different if he were to have embraced his Indigenous culture and faced his status with pride rather than feeling rejected by his non-Indigenous peers? The court realized that the instability in Kehoe’s life may well be connected to that disconnection. As a result, the court reduced Kehoe’s sentence to four years from the five initially imposed less time served in custody.
The B.C. Court of Appeal recognized that unfortunate early childhood experiences can psychologically scar a child such that acting out criminally in adulthood may be for reasons not remedied by denunciation and deterrence as sentencing principles. The dysfunctional home in which Kehoe was raised included substance abuse, anger, verbal and emotional abuse and criminal activity.
Can there be any question why Kehoe developed a substance abuse disorder and anti-social behaviours? The court concluded that systemic background factors significantly reduced his level of moral blameworthiness.
The B.C. Court of Appeal issued this well-considered judgment that looked behind the facts at hand and asked why a person acted out in such a manner. It gave consideration to the Gladue principles to which the Crown at the trial had dismissed.
The decision, however, raises a further question.
If our judicial system can overcome systemic blindness that early childhood experiences for Indigenous youth can and does lead to a propensity for criminal violence, can it not also conceive of the notion that such experiences, left untreated, could also manifest themselves in criminal acts by non-Indigenous youth?
There are certainly unique systemic or background factors that land Indigenous offenders in court. Maybe it’s time to consider such factors when sentencing generally.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books), which was published Sept. 1. Contact him at johnlornehill@hotmail.com.
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