R v Altiman, 2019 ONCA 511: Gladue at 20 - Why am I so misunderstood?

In R v Altiman, 2019 ONCA 511, the Court of Appeal for Ontario (Sharpe, Benotto and Brown JJ.A.) allowed an appeal against the 10-year sentence imposed on Mr. Altiman, a Indigeous man, who plead guilty to, among other things, impaired driving that caused the death of two people and injured two others. The full Court agreed that even without considering Gladue principles, the sentence was demonstrably unfit and should be reduced to at least 7 years. The Court, however, disagreed about the impact of Gladue principles, with Justice Sharpe, in dissent and correctly in my view, concluding that a further reduction in sentence was warranted.

Altiman was released on the same day that my client received his sentence in a manslaughter case in the Indigenous community of Fort McPherson, NT, or Tetl'it Zheh  (“Town at the Head Waters”). I mention this because Altiman reflects a concern that I have had for some time about what may be a troubling trend of restricting the remedial force of  s. 718.2(e), now 20 years out from Gladue itself and just 7 years from the exhortation and attempted course-correction in Ipeelee. I have raised this concern in court (this week and before), to colleagues, and now I turn to my blog, and on the eve of National Indigenous Peoples Day.

As summarized in Gladue: “[s]ection 718.2(e) is not simply a codification of existing jurisprudence. It is remedial in nature.  Its purpose is to ameliorate the serious problem of overrepresentation of aboriginal people in prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing.  There is a judicial duty to give the provision’s remedial purpose real force.” Then came Ipeelee and the Supreme Court’s effort to resolve “misunderstandings” and “provide additional guidance so that courts can properly implement this sentencing provision”. As we now know, many courts had been erroneously imposing a strict causal precondition to its application, and had been improperly denying its application for serious and violent crimes.

In short, Gladue was being routinely misapplied for the first decade of its existence. For whatever reasons, the courts were apparently reluctant to give Gladue “real force” towards reducing over-incarceration. And, as discussed, Ipeelee sought to put to rest two common errors that were narrowing its proper application (indeed, even this past week the Court of Appeal for Alberta in R v Matchee, 2019 ABCA 25 had to correct for precisely these same errors. See also R v Isbister, 2019 BCCA 135, R v McInnis, 2019 PECA 3, R v Martin, 2018 ONCA 1029, R v Provinciano, 2019 MBCA 16, R v Andersen, 2018 NLCA 41, R v F.H.L., 2018 ONCA 83, R v Okimaw, 2016 ABCA 246, R v Delorme, 2017 SKCA 3, R v Kreko, 2016 ONCA 367). It is in this context, of ongoing judicial circumspection or ambivalence towards the proper application of Gladue, that I believe that a third error might exist.

There may be a tendency to diminish the impact of case-specific factors of a particular Indigenous offender - even though those factors find their source in “the unique systemic and background factors affecting aboriginal people” and bear on his culpability for the offence or indicate which types of sanctions may be appropriate - simply because those offenders are unfavourably compared, as a matter of degree, to other Indigenous offenders who have had more acute or devastating experiences. There are glimpses of this comparative approach, by way of example, here and here. Thus, for those who do not score as high on the hierarchy of suffering, the remedial purpose of Gladue may go unfulfilled, acting less like a shield and more like a sword.  

For example, irrespective of whether a particular Indigeous offender was fortunate to have a “positive upbringing”,  this should not mask or deny the unique and systemic hardship that that same offender may have personally experienced - especially relative to non-Aboriginal people in Canada.  Indeed, the fact that an offender may have had a “happy childhood” does not mean that they have not experienced the loss of language and culture or been personally exposed to higher rates of violence, substance abuse, isolation and poverty in his community, and in his life.  As wisely observed by Justice Sharpe in Altiman, “[a] mother’s excellent teaching and example can go a long way to putting her child on the right track, but even a strong mother cannot always erase the indelible marks left by patterns of systemic disadvantage and alcohol abuse.”

To be sure, Gladue and Ipeelee direct us to pay “particular attention” to the circumstances of the Indigenous offender before the court, “because there is only one offender standing before the court”. As noted in R v Macintyre-Syrette, 2018 ONCA 259, “[t]he application of Gladue factors is not a matter of weight, and the duty to apply Gladue factors does not vary with the offender.” While I am sympathetic to the fact that comparing cases and assessing degrees are familiar tools for legal analysis, I do not think that much can be gained by comparing the level of harm suffered by Indigeous offenders. Indeed, I think that in doing so, there is an appreciable risk that it will raise the bar to the fulsome application of Gladue for those whose Gladue factors, while “significant” in relation to that offender, and unique as compared with other Canadians, may be unreasonably diminished in comparison with another Indigenous offender.  And, in the result, we might fail, yet again, to give real force to the remedial purpose of s. 718.2(e).

As an aside, the government’s apparent effort to increase sentences for crimes against Indigenous women might also undercut the remedial force of s. 718.2(e).