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| John L. Hill |
The premise for such a question is that a wrongdoer has opted to use an illegal act to obtain a goal thought to be desirable and now takes the blame for a wrong choice. Such an approach is overly simplistic according to a report published in April by American groups calling themselves The Sentencing Project and the Survivors Justice Project with the title “Sentencing Reform for Criminalized Survivors.”
The report accepts the notion that some crimes result from diminished capacity on the part of the wrongdoer. It is widely accepted that immaturity, mental illness or intellectual disability are legitimate factors in considering lesser penalties. The report makes a strong case that prior victimization should also be considered in mitigation of penalty. Even though it is commonplace to ask our courts to speak up for victims of crime, far too often the people prosecuted have themselves been victimized. Survivors of domestic abuse may be criminalized for coerced criminal acts or for protecting themselves or their families from abuse. The report also notes that victimization can also result from “long-term destabilization” where the effect is loss of housing, income and savings and crimes committed to secure basic needs. Others might also turn to substance abuse to cope with the effects of trauma.
The argument presented by the American writers is that real justice results when the court or the parole board looks beyond the fact of the criminal act and delves into the motivation as to why it occurred. The report looks to New York state’s Domestic Violence Survivors Justice Act passed in 2019. This legislation allows a court to consider people who can show the sentencing guidelines in place would be unduly harsh if the offender could show that, at the time of the offence, they had experienced “substantial physical, sexual, or psychological abuse,” and that such abuse was a “significant contributing factor” leading to the commission of the offence. If these factors are met, the minimum sentence would become the maximum sentence for an offender not otherwise eligible for consideration under the Act. The court could also impose non-custodial punishments such as probation or community service in place of jail time. Of course, treatment and rehabilitation programs would be expected.
In the time that has passed since the New York law was enacted, 35 women, four men and one non-binary person have received retroactive sentencing relief. They are progressing nicely without having served the years of incarceration the courts originally meted out.
Canada does not have such a specialized Act. Section 718 of the Criminal Code, reads that a sentence must be proportionate to the gravity of the offence and one could get the impression that Parliament is making clear that it wants to make offenders understand and take responsibility for their own actions. However, there is s. 718.1 that modifies this expectation by stating the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender [Emphasis added]. We are all familiar with s. 718.2 This section addresses Indigenous sentencing. The section requires a sentencing judge to pay particular attention to the circumstances of Indigenous offenders and to consider all available sanctions other than imprisonment that are reasonable in the circumstances. The section realizes the impact of racism and colonialism in warping behaviour.
While in practice I found it common that many criminal defence lawyers would willingly accept a custodial term without regard to an offender’s background. Too often, the background was overlooked with concentration only on the facts leading up to a crime. Too often, as well, some criminal defence counsel have inadequate knowledge of what goes on after their clients are taken out of the courtroom to commence a term of incarceration and the aftermath of that experience.
Maybe it’s time to act as though the provisions of the New York legislation are mirrored in Canada’s s. 718.1 provisions.
It was only after inmate Clifford Maltby was released, took the Bahamian ambassador hostage in Ottawa, was reincarcerated, released and murdered a Stratford Festival employee that we learned he had been sexually exploited by a pedophile abuser as a youth. Could the drama and tragedy he inflicted have been prevented by earlier interventions when he came before the criminal courts?
When lawyers and judges consider a case, very often they examine the factual scenario that has led to a court appearance. Seldom do counsel or the courts have the opportunity to look for patterns that can be crucial in effective decision-making. Those of us in the criminal justice system seldom look beyond the who, what, where and when questions to try to answer the why.
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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