R. v. T.B., 2011 ONCJ 528

COURT FILE No.: 07 1001 3213 DATE: October 7, 2011 Citation: R. v. T.B. , 2011 ONCJ 528 ONTARIO COURT OF JUSTICE (TORONTO REGION) BETWEEN: HER MAJESTY THE QUEEN Respondent — AND — T.B. Applicant — AND — ABORIGINAL LEGAL SERVICES OF TORONTO INC. Intervener Before Justice G. Sparrow Ruling on Charter Application Ms. Jill Witkin ...................................................................................... Counsel for the Crown Mr. Michael T. Doi ................................................................................. Counsel for the Crown Mr.

Stephen John Ford ..................................................................... Counsel for the Applicant Mr. Jonathan Rudin ...................................................................... Counsel for the Intervener Sparrow J.: Order Made December 1, 2008, pursuant to s. 486.4 banning publication of information tending to identify complainant, her mother and grandmother . Overview [ 1 ] On January 26, 2010, the Applicant was convicted of one count of sexual interference under s. 151 (

b) of the Criminal Code, R.S.C. 1985,

chapter C-46 , as amended. As part of his sentencing hearing, the Applicant is asserting that the mandatory minimum sentence of fourteen days imprisonment required by s. 151(

b) of the Code infringes ss. 7 and 15 of the Charter, is not justified by s.1 of the Charter, and should not be applied. [ 2 ] Aboriginal Legal Services of Toronto was granted Intervener status, on consent of the parties. [ 3 ] On July 30, 2010, I ruled that the constitutional issue raised is not moot, and ordered that it be argued and decided before sentencing. Reasons were provided. [ 4 ] It was uncontested that on Friday, September 14, 2007, the Applicant, a member of the Mohawks of the Bay of Quinte

First Nation, brought his five year old granddaughter, to his apartment for a “sleepover”, as her parents had other obligations. [ 5 ] During the evening, the Applicant and the child removed their pants and underwear while lying on the floor in the living room. The Applicant then touched his penis to her vagina for what she thought was two minutes. [ 6 ] They were alone in the apartment at the time of the incident, as the Applicant’s wife was working. [ 7 ] The child reported the incident to her mother when they had time alone together a few days later.

Following the incident, the child experienced a change in her behaviour that has been characterized by temper tantrums and nightmares. [ 8 ] Following conviction, a “ Gladue report”, focusing on the Applicant’s history and his aboriginal status, was produced for sentencing purposes. He was 53 at the time of the offence, with no criminal record, living with his second wife and working in Toronto. He has three children. He reported incidents of sexual abuse during his childhood on the reserve, and racism at his high school in Belleville. Sentencing was adjourned pending the outcome of this hearing.

Legislative History [ 9 ] Expert evidence was given on this Charter application by the following: i. Professor Kent Roach, professor of law and criminology, qualified as an expert on aboriginals in the criminal justice system and mandatory minimums, on November 16 and 17, 2010; ii. Dr. Thomas Gabor, criminologist, qualified as an expert on criminology, race and criminology, research methodology and mandatory minimum sentences, on November 17 and 18, 2010; iii. Dr. Peter Jaffe, psychologist, qualified as an expert on child sexual abuse, on November 19, 2010; iv.

Joanne Dallaire, an aboriginal elder and expert on aboriginal justice and child abuse, on February 8, 2011; and v. Brian Myers, an aboriginal elder and expert on aboriginal justice and child abuse, on February 9, 2011. [ 10 ] In addition, numerous articles and government reports addressing the problems of child sexual abuse and over- representation of aboriginals in prison were filed and relied upon. [ 11 ] The mandatory minimum sentence of fourteen days upon

summary conviction for the offence of sexual interference in s. 151 (

b) of the Criminal Code is the result of the enactment of Bill C-2. Introduced on October 8, 2004, Bill C-2 proposed amendments to the Criminal Code and the Canada Evidence Act intended to protect children and other vulnerable persons from sexual exploitation, violence, abuse and neglect and to provide “testimonial aids for vulnerable victims”. (See Legislative History of Bill C-2, Library of Parliament, Revised June 16, 2005). [ 12 ] When originally introduced by the minority liberal government, Bill C-2 contained no new mandatory minimum sentences.

The Minister of Justice told the Senate Committee on Legal and Constitutional Affairs that “our experience and scientific research show that mandatory minimum sentences are not a deterrent nor are they effective” (See proceedings of Senate Committee, June 22, 2005). [ 13 ] Amendments providing for mandatory minimum sentences were made by the Standing Committee of the House on Justice, Human Rights, Public Safety and Emergency Preparedness.

The Parliamentary Secretary to the Minister stated that “we have done so reluctantly”, but that there had to be “some type of mediated middle ground” (See proceedings of the Standing Committee, June 22, 2005). [ 14 ] The amendments were a response to concerns identified by Committee members with respect to current sentencing practices in cases involving the sexual exploitation of children, including an increasing use of conditional sentences or house arrest in these cases. Historical Problem of Child Sex Abuse [ 15 ] Dr.

Peter Jaffe, a leading child abuse expert in Canada, explained that a major national study conducted in 1984, the Badgley Report, found that 53% of adult women and 31% of adult men in Canada reported experiencing unwanted sexual acts, including sexual abuse, when they were children and during their early adulthood. A more recent Ontario study of childhood sexual abuse conducted in 2002 found that 12% of female respondents and 4% of male respondents experienced sexual abuse as a child (Ontario Mental Health Supplement Survey).

Other international studies found that 20% of females and 5 to 10% of males reported that they were sexually abused during childhood. [ 16 ] Dr. Jaffe testified that child sexual abuse often goes undisclosed because victims are unable to understand that they were exploited and abused, or do not want to compromise family relationships. [ 17 ] Dr.

Jaffe testified that most child sex abuse victims are victimized by someone they know - a family member or somebody within the victim’s existing social network (e.g., a school, a church, a sports team) in a relationship of trust. [ 18 ] Child sexual abuse is not strongly correlated to social or socioeconomic class, or household income. [ 19 ] Dr. Jaffe stated that most child sex offenders (80%) are not pedophiles (i.e., adults who prefer children for sexual gratification), but take advantage of opportunities which arise with vulnerable children. They may experience lower inhibitions due to

the influence of alcohol or drugs, or the fact that they are alone with the child, but generally have control mechanisms to permit them tonot offend. They may “groom” the child by slowly developing a bond. [20] Dr. Jaffe also testified that the incidence of childhood sexual abuse within aboriginal communities in Canada is believedto be very high. According to a 2009

article in the Journal of Aboriginal and Indigenous Community Health, (Collins – Vezina et al)studies conducted over the past 20 years report that 25 to 50% of aboriginal youth have been sexually abused – a higher rate ofoccurrence than that in the general Canadian population. Studies have found that 80 to 90% of aboriginal men seeking assistance foraddictions were sexually abused in childhood, and all men who were in residential schools reported having experienced sexual abuse.

Other studies show that aboriginal women receiving mental health services had an incidence rate of 80 to 90% for childhood sexualabuse, and that 80% of young aboriginal women involved in the sex trade experienced childhood sex abuse. [21] Dr. Jaffe testified that recidivism rates are high in all communities.

A major study in Canada found that 42% of childsexual abuse perpetrators were re-convicted for sexual or violent crimes during a 15 to 30 year follow-up period. [22] He also explained that over the last 20 years, an extensive body of scientific literature has developed concerning the shortand long term impact of child sexual abuse. In general, victims of childhood sexual abuse may experience a number of potentiallyserious adverse outcomes, such as emotional and behavioural problems, anxiety, depression, flashbacks, and nightmares.

Theseproblems frequently continue into teenage years and adulthood with very serious adverse consequences, such as addiction, depression,employment problems, and criminal behaviour including crimes of violence. Girls who flee sexual abuse in the home may end up in thesex trade. [23] In conclusion, Dr. Jaffe opined that the criminal justice system must convey the message that sex crimes againstvulnerable children are not tolerated by the community, and that offenders will suffer serious consequences, including incarceration.

This is particularly important as the “vast majority” of adults who commit child sex offences possess the control mechanisms necessaryto avoid re-offending. In his view, a “short and sharp shock” of incarceration serves to meaningfully deter these offenders, reinforcespublic confidence in the criminal justice system, and encourages victims to disclose incidents of abuse. [24] Dr. Gabor testified that only a small percentage of child abuse cases are investigated by police and child protectionservices, despite greater public awareness and attention paid to the problem by authorities.

An offender often commits many offencesbefore being detected. A leading study, the Canadian Incidence Study of Reported Child Abuse and Neglect, conducted over a threemonth period in 1998 determined that the number of child sexual abuse allegations investigated by child protection services was 2.29 per1,000 children. [25] Brian Myers, the Crown’s expert on aboriginal justice and child sexual abuse, testified that traditional Haudenosaunee(Iroquoian) law provides that children are sacred because they represent and guarantee the future of the community. The Mohawks are part of the Haudenosaunee people.

The law considers children to be particularly sacred during their first seven yearsof life, when their first beliefs, understandings, and perceptions of the world are developed. Child sexual assault is considered tobe a very serious offence that constitutes an attack on the future of the community. [26] Mr. Myers testified that traditional Iroquois practice was to immediately segregate child sex offenders from thecommunity in a guarded secure facility as a public safety measure to prevent any re-offending, and retaliation by the victim’s family orothers.

Visitors were permitted. [27] Following an investigation, a person found to be a child sex offender would be approached three times by communitymembers in an effort to resolve the matter peacefully. A perpetrator who failed to resolve the matter through this process facedbanishment from the community under Haudenosaunee law.

In the alternative, where a victim’s clan, family or relatives insisted onstringent consequences, traditional Haudenosaunee practice allowed for a penalty up to and including capital punishment. [28] Joanne Dallaire, also an aboriginal elder and expert, testified that in recent years, the aboriginal community has becomeevenly divided as to whether an aboriginal child sex offender should be incarcerated.

While half of the aboriginal community favoursand supports the use of traditional community based healing methods to rehabilitate aboriginal child sex offenders, the other half of thecommunity supports incarceration as an appropriate criminal justice outcome. [29] She confirmed that child sexual abuse is clearly prevalent in aboriginal communities today, and a matter of greatconcern. Many victims speak out about their experience in order to deter and educate others. Over-representation of Aboriginals in the Criminal Justice System [30] It is undisputed that aboriginals are disproportionately jailed in Canada.

According to Juristat, a publication ofStatistics Canada, addressing statistics compiled in the justice system, aboriginals represented 3.1% of all adults 18 years of age or olderin Canada in 2008; yet they accounted for 20% of adults in pre-trial custody, 25% of adults in provincial/territorial custody, and 21% ofconditionally sentenced adults. In 2000, Juristat reported that 17% of adults in all levels of Canadian prisons were aboriginal. Thepercentages were smaller five years earlier. In

summary, it is clear that representation of aboriginals in prisons has increased. [31] The process of establishing these statistics was referred to as “census benchmarking” by experts and counsel - namelycomparing numbers of aboriginals to non- aboriginals in a particular population. [32] In the landmark case of R.v. Gladue (SCC), [1999] 1S.C.R. 688, the Supreme Court of Canada reliedheavily on the findings of the Royal Commission on Aboriginal People’s 1996 Report on Criminal Justice, called Bridging theCultural Divide, and particularly its conclusion that the criminal justice system has failed the aboriginal people.

[ 33 ] At paragraph 64 the Court stated: “The drastic overrepresentation of aboriginal peoples within both the Canadian prison population and the criminal justice system reveals a sad and pressing social problem. It is reasonable to assume that Parliament, in singling out aboriginal offenders for distinct sentencing treatment in s. 718.2(e), intended to attempt to redress this social problem to some degree.

The provision may properly be seen as Parliament’s direction to members of the judiciary to inquire into the causes of the problem and to endeavour to remedy it, to the extent that a remedy is possible through the sentencing process.” [ 34 ] The Royal Commission also described aboriginal over-representation as “injustice personified”. It identified three possible explanations for over-representation: cultural difference; socio-economic deprivation; and the impact of relations between aboriginal and non-aboriginal society.

At paragraph 46, the Commission concluded that the impact of the latter factor best provided an understanding of over-representation: “We have concluded that over-representation is linked to the particular distinctive historical and political processes that made Aboriginal people poor beyond poverty. Aboriginal people experience these risk factors with greater frequency and intensity than do Canadians generally.

The reasons are rooted in the relations between Aboriginal people and the rest of Canadian society – relations that were shaped in the colonial era and have never been thoroughly reshaped since….” [ 35 ] The Supreme Court of Canada agreed with the analysis provided by RCAP and the other inquiries that over- representation is best explained by the historical treatment of aboriginals.

The Court found at paragraph 67: “Years of dislocation and economic development have translated, for many aboriginal peoples, into low incomes, high unemployment, lack of opportunities and options, lack or irrelevance of education, substance abuse, loneliness, and community fragmentation.

These and other factors contribute to a higher incidence of crime and incarceration.” [ 36 ] Although the Supreme Court in Gladue did not use the term “colonialism”, the Intervener, Aboriginal Legal Services of Toronto, submits that the decision in its entirety blames colonialism or colonisation for the problems of over-representation.

These terms were used by all witnesses called by the Applicant and the Intervener. [ 37 ] Professor Roach testified as follows on the subject: “colonialism also can help explain high rates of victimization, so in my mind, the colonialism theory because it is rooted in history, and is more holistic than a social science approach which attempts to isolate particular variables, is a more powerful explanation for why one in four people in our provincial jails are aboriginal”. [ 38 ] Professor Roach relied on a study by Samuel Perreault to support his suggestion that aboriginal inmates are overrepresented based on multicorrelation analyses (i.e., isolating different variables and their impact on the key focus of the study).

In cross-examination, he acknowledged that over-representation could partly be the result of increased aboriginal identification in criminal justice proceedings, where resources and sentencing options arising from “ Gladue ” courts are available for aboriginal offenders. [ 39 ] Dr. Jaffe and Ms. Dallaire testified that historical trauma and neglect, including the treatment of children in residential schools, are the root causes of abuse which is passed down through generations. Ms.

Dallaire testified that by the time children came out of residential schools they were so abused, so deprived, so neglected, and so angry, that they often repeated the behaviour that had harmed them. [ 40 ] Dr. Thomas Gabor, relying on his expertise in research methodology, strongly cautioned that one cannot draw any meaningful conclusions about the real cause of aboriginal over-representation in correctional institutions merely through census benchmarking.

Since over-representation may reflect a multitude of factors, either independently or in combination, the practice of employing census benchmarking as a research tool has been strongly criticized by leading research methodologists as an inadequate way of arriving at meaningful conclusions. [ 41 ] Dr. Gabor testified that no empirical research has ever been conducted to explain aboriginal inmate over-representation in Canada.

Instead, the over-representation issue has been addressed largely by speculative discrimination theories which are based largely on limited anecdotal information that is methodologically insufficient to properly explain its real cause. He concluded that without the benefit of a systematic study using rigorous observational methods, it is methodologically unsound to arrive at any conclusions regarding aboriginal inmate demographics. [ 42 ] Dr.

Gabor also explained that demographics can account for up to 40 to 60% of crime trends, and are a significant factor in explaining the aboriginal inmate population in correctional institutions. In particular, he noted that sophisticated studies in this area recognize that a higher percentage of the aboriginal inmate population than the non-aboriginal population is between 15 and 30 years of age, the highest risk age for criminal activity (See “The Incarceration of Aboriginal People in Adult Correctional Services”, S.

Perreault, Juristat, July 2009, and “The Incarceration of Aboriginal Offenders”, Melchers and Roberts, Canadian Journal of Criminology, April 2003). Any residual over-representation could also be explained by socioeconomic factors depending on the nature of the committed crime, and data errors (e.g., census errors, or errors in determining who is “aboriginal”), without necessarily leading to an inference that the over-representation relates to “colonialism” as suggested by Professor Roach. [ 43 ] Dr.

Gabor testified that the term “colonialism” is quite broad, highly politicized, and may refer to broader or narrower period of history. Accordingly, there are significant academic and methodological difficulties in attempting to meaningfully demonstrate the effect of “colonialism” on aboriginal representation in prison either quantitatively or qualitatively. No research to date that has clearly demonstrated a link between colonialism and present day criminal activity.

[ 44 ] He also testified that recent research has determined that aboriginal and non-aboriginal offenders with similar criminal offence histories received comparable sentences for having committed similar offences; no evidence has emerged from this research to suggest that any bias caused aboriginal offenders to receive harsher sentences (See “Sentencing Disparity”, M. Weinrath, Western Criminology Review 8, p.16). Other studies, referred to in the

article by Roberts and Melchers, supra, have concluded that discrimination was not a factor in the over-representation of aboriginals in jail. Effects of Incarceration Dr. Jaffe [ 45 ] Expert testimony regarding the benefits of mandatory minimum sentences and incarceration in general was varied, complex, and inconclusive. [ 46 ] As stated previously, Dr. Jaffe testified that child sex offenders do have control mechanisms, and that the criminal justice system must convey the message that serious consequences, including incarceration, will be suffered by child sexual abusers.

In chief, he agreed that a short sharp period of incarceration, is a meaningful deterrent. [ 47 ] With regard to deterrence, he also stated, however, that “...obviously the first deterrent is public education to know that it is a crime, that sexual abuse of children is harmful, that it does harm in the short term and long term, and it is against the law…” “The next level is that there be a swift and certain detection, that if a child is abused, that they would be empowered and know that they have the right to tell and go to somebody…” “ …knowing that there is some assurance that there would be detection, investigation and arrest, if an offence has occurred, would be critical in terms of preventing abuse and having everyone recognize that not only is it against the law, but it is not going to be tolerated in the community.” [ 48 ] Citing certain experts, Dr.

Jaffe also stated that perpetrators may be deterred by the embarrassment and shame that comes with arrest, and consequences such as losing jobs and family relationships. In cross-examination he agreed that jail is not the only serious consequence a court can impose as “being ordered into treatment is serious as well”. He also agreed that treatment without jail could successfully deal with the offender’s problems. Dr. Gabor [ 49 ] Dr.

Gabor testified that there is growing evidence that an element of rationality is applied to all crimes, including crimes of sexual aggression; thus deterrence can be effected as perpetrators factor in risk of serious consequences. Grooming behaviour often noted in child sex offenders is an example of the application of “rational choice theory”. In his view, the prevalence of child abuse, as demonstrated by the Badgely Report, requires emphasis on denunciation and deterrence. [ 50 ] With respect to mandatory minimums, Gabor testified that they accomplish denunciation.

The certainty of incarceration engages rationality, and acts as a deterrent by enhancing the level of shame associated with an offence. He stated that by ensuring sentence certainty, mandatory minimums in the words of a United States attorney, prevent the “judicial trivialization of serious crimes”. (See D. Risley, Mandatory Minimum Sentences). Drug Watch International (2000) at p.1. [ 51 ] Drawing on research studies of mandatory minimum sentences for firearms related offences, Dr.

Gabor explained that the introduction of mandatory minimum sentences has been correlated to a general decline in the number of gun related homicides in the U.S. and of robberies involving the use of firearms in Canada. In fact, certain studies found that the decline in firearms-related crime was dramatic. Similarly, research has shown that the introduction of mandatory minimum sentences has been correlated to a decline in impaired driving offences. [ 52 ] In cross-examination, Dr. Gabor agreed that, as stated in his

article “Mandatory Minimum Penalties”, Gabor and Crutcher, January 2002, not all mandatory minimums are well thought out and capable of achieving their objectives. In the article, he concluded that persistent offenders may be difficult to deter, that the benefits of “incapacitation” may be marginal, that the use of incarceration must be “finely tuned”, and that mandatory minimums should not be introduced “mainly to placate a political constituency without regard to a thorough understanding of the infractions or offenders for whom they are intended”.

Professor Roach [ 53 ] With respect to mandatory minimums, Professor Roach testified that the mandatory minimum sentence is in essence ineffectual, as it “will have its most bite with respect to the least serious version of conduct that constitutes that offence, combined with the offender characteristics that are best suited for rehabilitation and restoration”. [ 54 ] In cross-examination, however, he agreed that in the right circumstances a period of incarceration arising from a mandatory minimum could be efficacious. Elders [ 55 ] Relying on her experience as a counsellor, Ms.

Dallaire agreed that a relatively short period of incarceration may help certain offenders come to terms with past misconduct, and deter them from future misconduct or recidivism. She also agreed that

incarceration may represent a first stage of the healing process for offenders who respond to incarceration by accepting responsibility for past misconduct. [ 56 ] Also relying on his experience counselling aboriginal offenders, Mr. Myers agreed that a period of incarceration may facilitate the process of accepting responsibility for past misconduct and initiating the healing process. [ 57 ] Mr.

Myers noted that various tribal courts in the United States are continuing to sentence aboriginal offenders, including sexual abuse offenders, to periods of incarceration of up to two years in tribal jails operated by aboriginal corrections staff. He explained that tribal jails in the U.S. are culturally-adapted secure facilities which provided inmates with traditional healing practices and western-type counselling, and receive funding from the U.S. government and specific insurers.

Tribal jails physically resemble correctional detention facilities. [ 58 ] In cross-examination, he testified that not all child sex abusers need to go to jail to “begin the healing process”. When asked if jail would have helped an offender who had not been detected but came to him seeking help, he said no – that jail might have shut down the potential for healing.

When asked for an example of child abuse being effectively addressed in as aboriginal community, he discussed the investigation of a priest in the U.S. which led to revelation that many of his victims in turn became offenders, but “… within the community, and through the approaches that we brought to it and the therapists, and the people we had helping with it we were able to achieve peace and begin to put that community back together”. [ 59 ] He testified that while he was working as a treatment director on a reserve in Alberta, he was also successful with certain “culturally based” treatment programs that did not involve jail.

Legislative Alternatives [ 60 ] The Intervener filed copies of provisions in sentencing legislation passed in the England Wales and Australia, allowing for exceptions to specific mandatory minimums. For example, in England, a seven year minimum for trafficking “class A” drugs is imposed unless particular circumstances “would make it unjust to do so in all the circumstances”. In the Northern territories of Australia, imprisonment or a community work order must be imposed for certain aggravated properly offences “unless there are exceptional circumstances in relation to the offence or the offender.” [ 61 ] In an

article called “Mandatory Sentences of Imprisonment in Common Law Jurisdictions”, the Department of Justice noted that concerns exist in the Northern territories about the disproportionate impact of mandatory minimums on aboriginals. [ 62 ] Dr. Roach testified that the Canada Sentencing Commission, in a 1987 report, preferred that direction on sentencing be provided by guidelines, rather than mandatory minimums, as they offer more flexibility. [ 63 ] Professor Gabor testified on this issue as follows; Q.

And as an expert is there a reason to think that having a floor but allowing a judge to have the ability to consider special circumstances is actually a good idea. A: I think judicial override is reasonable if the guidelines are very strictly set so that overrides do not become the norm. I have no issue with the British model of permitting an override, and still having a minimum sentence, a presumptive sentence which is a little bit different, but having at least an absolute floor with the possibility of override in very exceptional circumstances that are strictly circumscribed.

Q: That is what Professor Roach was testifying about yesterday – the British model. Do you think that is inconsistent with your position? A: Not with my personal professional opinion. Court and Government Based Initiatives [ 64 ] As will be seen in the analysis

section below, current initiatives to prevent discrimination and otherwise improve the position of aboriginal in the criminal justice system are relevant to the

section 15 argument. [ 65 ] On agreement of all counsel, Crown counsel put forward the following statement of fact: I am not in a position to provide any written documentation at this time. There are simply too many programs, across different Ministries, to accurately reflect all that the government is doing to address over-representation of Aboriginal people, and the underlying causes.

However, your Honour would be aware that in Ontario, the Ministry of Aboriginal Affairs operates as a stand-alone ministry whose mandate is solely devoted to the articulation of and advocacy for, matters involving First Nations, Inuit and Métis people. As well, following the Supreme Court of Canada decision in R.v. Gladue , a specialized court staffed with experts in aboriginal matters was established at Old City Hall in 2001 to deal with aboriginal accused persons in relation to bail or sentencing matters. There are several other such courts around the province (College Park, North York and Sarnia).

Where a dedicated and specialized court does not exist, there may be “ Gladue writers” available to assist the court by acquiring back ground information from the accused and his/her family regarding various issues, including residential schools, previous history of abuse. In addition, there are 38 aboriginal court workers who assist aboriginal people navigate their way through court system. They help First Nations, Inuit and Métis people with criminal and family matters, including custody and access and child welfare. In

terms of aboriginal victims and witnesses of crime, there is a host of programs and initiatives in response to domestic violence, sexual violence and child abuse. Moreover, extensive training on aboriginal issues is available to justice system participants, including police, victim/ witness staff, crowns, court staff and probation and parole to name a few.

In fact, recently the Ministry of the Attorney general again partnered with Osgoode Professional Development and aboriginal Legal Services of Toronto to put on the Third National aboriginal Justice conference attended by judges and other justice system participants from across the country. [ 66 ] Counsel agreed that the 38 aboriginal court workers referred to above were in place at the time of the Gladue decision, before an increase in the degree of aboriginal over-representation. [ 67 ] Ms.

Dallaire testified that she conducted a successful program of counselling aboriginal inmates, including child sex offenders at a Toronto jail, called “Spirit Circles”. Discussions of traditional healing practices took place, and awareness sessions were conducted with staff. Some inmates were referred to elders for counselling during probation. [ 68 ] Mr. Myers testified that he has had success with programs similar to those described by Ms. Dallaire.

Analysis The Legislation: [ 69 ] It is useful to reproduce the sections of the Criminal Code which establish the offence of sexual interference and related punishment. Sexual Interference 151 . Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of forty-five days; or (

b) is guilty of an offence punishable on

summary conviction and liable to imprisonment for a term not exceeding eighteen months and to a minimum punishment of imprisonment for a term of fourteen days. [ 70 ] The availability of a conditional sentence is established by

section 742.1: Imposing of Conditional Sentence 742.1 If a person is convicted of an offence, other than serious personal injury offence as defined in

section 752, a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more or an offence punishable by a minimum term of imprisonment, and the court imposes a sentence of imprisonment of less than two years and is satisfied that the service of the sentence is the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s compliance with the conditions imposed under

section 742.3. [ 71 ] The sentencing principle in issue in the case is established by

section 718.2 of the Code: Other Sentencing Principles 718.2 A court that imposes a sentence shall also take into consideration the following principles: … (

a) A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iv) evidence that the offence was committed for the benefit of, at the direction or in association with a criminal organization,

[72] The Applicant also seeks to rely on s.718.2(e) (Other Sentencing Principles) of the Code, which provides:

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for alloffenders, with particular attention to the circumstances of aboriginal offenders.

Section 15 Argument [73]

Section 15 of the Charter provides:

(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law withoutdiscrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental orphysical disability.

(2) Affirmative action programs – Subsection (1) does not preclude any law, program or activity that has as its object the amelioration ofconditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin,colour, religion, sex, age or mental or physical disability. [74] The Supreme Court of Canada has articulated a general two part test as the analytical framework for the discriminationanalysis under ss. 15(1) of the Charter: i. Does the law create a distinction based on an enumerated or analogous ground? and ii.

Does the distinction create a disadvantage by perpetuating prejudice and stereotyping? Withler v. Canada (A.G.), 2011 SCC 12 at paras. 30 and 61 R. v. Kapp, 2008 SCC 41 , [2008] 2 S.C.R. 483 at para.17 [75] As established in Withler, at paragraph 31, the Applicant bears the burden of establishing a breach at both stages of thetest. [76] The two step test in Withler evolved from the three step test established in Law v. Canada (SCC),[1999] 1S.C.R. 497 at paragraph 88, requiring the court to consider three central issues: A. Does the impugned law (

a) draw a formal distinction between the claimant and others on the basis of one or more personcharacteristics, or (

b) fail to take into account the claimant’s already disadvantaged position within Canadian society resulting insubstantively differential treatment between the claimant and others on the basis of one or more personal characteristics? B. Is the claimant subject to differential treatment based upon one or more enumerated and analogous grounds? C.

Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a mannerwhich reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect ofperpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a memberof Canadian society, equally deserving of concerns, respect, and consideration?

Step one of the Withler Test [77] With respect to step one of the test in Withler, the Crown’s primary argument is that the mandatory minimum is applied toall offenders equally, without regards to race or any other enumerated or analogous ground; therefore, there is simply no distinctioncreated. Crown counsel rely heavily on the recently released decision of R.v. Nur (Ont. Sup.

Ct, released Aug. 30, 2011), in which Code,J. considered whether the mandatory minimum of three years imposed by s. 95 of the Code for conviction upon indictment ofpossession of a loaded prohibited firearm violated the s. 15 rights of a black offender.

The Applicant Nur and various interveners arguedthat the minimum has a disproportionate effect on black males and is therefore effectively discriminatory. [78] At paragraph 75, Code, J. cites paragraph 64 of Withler, which makes it clear that provisions which operate neutrally ontheir face may indirectly discriminate against a particular group: In some cases, identifying the distinction will be relatively straightforward, because a law will, on its face, make adistinction on the basis of an enumerated or analogous ground (direct discrimination).

This will often occur in cases involvinggovernment benefits, as in Law, Lovelace and Hodge. In other cases, establishing the distinction will be more difficult, because what isalleged is indirect discrimination: that although the law purports to treat everyone the same, it has a disproportionately negative impacton a group or individual that can be identified by factors relating to enumerated or analogous grounds.

Thus in Granovsky, the courtnoted that “[t]he CPP contribution requirements, which on their face applied the same set of rules to all contributors, operated unequallyin their effect on persons who want to work but whose disabilities prevent them from working” (para. 43). In that kind of case, theclaimant will have more work to do at the first step. Historical or sociological disadvantage may assist in demonstrating that the law

imposes a burden or denies a benefit to the claimant that is not imposed on or denied to others. The focus will be on the effect of the lawand the situation of the claimant group. [Emphasis added.] [79] In my view, although the two step test articulated in Withler does not specifically refer to subsection A (

b) of the formertest in Law, and more specifically “the claimant’s already disadvantaged position,” it is clear that such disadvantage can be taken intoaccount in determining if the law has a disproportionate adverse impact on a group and therefore creates an indirect distinction. [80] With respect to indirect discrimination, the Crown argues that any such impact is caused by conviction and/or sentencingand not by the mandatory minimum.

Counsel also rely on Code, J.’s finding at paragraph 79 that over-incarceration is caused by factorsother than the law itself: The fundamental flaw in the s. 15 argument is that the Applicant and the Intervener have not established that thediscriminatory effect of over-representation and over-incarceration of blacks, amongst those charged with s. 95 offences, is caused by thelaw itself. It is not difficult to establish that poverty, unemployment, poor housing and weak family structures contribute to theproliferation of gang culture and gun crime.

It is also not difficult to establish that these phenomena will attract heavy police attentionand will lead to the laying of large numbers of s. 95 charges. Finally, it is not difficult to establish that anti-black discriminationundoubtedly contributes to many of these underlying societal causes. However, none of this establishes that s. 95 itself violates s. 15 ofthe Charter. As Iacobucci J. put it in Symes v.

Canada, (SCC), [1993] 4 S.C.R. 695 at para. 134, giving the judgment ofseven members of the Court: if the adverse effects analysis is to be coherent, it must not assume that a statutory provision has an effectwhich is not proved. We must take care to distinguish between effects which are wholly caused, or are contributed to, by an impugnedprovision, and those social circumstances which exist independently of such a provision. [81] Code, J. also cites R.v.

Johnson 2011 ONCJ 77 , [2011] O.J., No. 822, (O.C.J.) in which Green, J. ruled thatrecent amendments to the Criminal Code limiting credit for pre-trial custody do not create a distinction based on race: While a disproportionate number of black and native persons may be captured by the amendments, they do not distinguishthe Applicant from other offenders on the basis of his heritage, either in intent or effect. Further, the Applicant’s argument, logicallypursued, renders much of criminal law – or, at minimum, those statutory instruments bearing on penal sanctions – vulnerable to s. 15challenge on the same footing.

This hardly seems tenable. [82] As in Nur, Green, J. found that disadvantages suffered by blacks “exist independently of the legislation provision”. [83] In response to the above summarized requirements, the Applicant and the Intervener argue that the mandatory minimumcreates a distinction because it prevents sentencing judges from considering a conditional sentence, or any sentence less than theminimum. [84] More specifically, in so harnessing the judge, the minimum prevents full consideration of the antecedents of the offender,and application of the main principle enunciated in both Gladue and s. 718.2(

e) of the code – namely that historical prejudice,disadvantage, and over incarceration in the criminal justice system should be taken into account in sentencing aboriginals.

Convictedaboriginals are distinguished from convicted non-aboriginals because the former group is being denied full and proper considerationon sentencing as mandated by Gladue, and s.718(1)(e), while the latter group is not being denied the benefit of any pertinentconsideration. [85] With respect to the above argument, certain crucial passages from paragraphs 61, 65 and 68 of Gladue should be noted: … “Not surprisingly, the excessive imprisonment of aboriginal people is only the tip of the iceberg insofar as the estrangement ofthe aboriginal peoples from the Canadian criminal justice system is concerned.

Aboriginal people are overrepresented in virtually allaspects of the system. As this Court recently noted in R. v. Williams, (SCC), [1998] 1 S.C.R. 1128, at Para. 58, there iswidespread bias against aboriginal people within Canada, and “[t]here is evidence that this widespread racism has translated intosystemic discrimination in the criminal justice system… It is clear that sentencing innovation by itself cannot remove the causes of aboriginal offending and the greater problem ofaboriginal alienation from the criminal justice system.

The unbalanced ratio of imprisonment for aboriginal offenders flows from anumber of sources, including poverty, substance abuse, lack of education and the lack of employment opportunities for aboriginalpeople.

It arises also from bias against aboriginal people and from an unfortunate institutional approach that is more inclined to refusebail and to impose more and longer prison terms for aboriginal offenders. …Moreover, as has been emphasized repeatedly in studies and commission reports, aboriginal offenders are, as a result of these uniquesystemic and background factors, more adversely affected by incarceration and less likely to be “rehabilitated” thereby, because theinternment milieu is often culturally inappropriate and regrettably discrimination towards them is so often rampant in penal institutions.” [86] To address systemic discrimination, the Court states that judges should consider the principles of restorative justice, andcommunity based sanctions even if no specific aboriginal practices are available.

The Court concludes at paragraph 74: It is often the case that neither aboriginal offenders nor their communities are well served by incarcerating offenders, particularlyfor less serious or non-violent offences. Where these sanctions are reasonable in the circumstances, they should be implemented. In allinstances, it is appropriate to attempt to craft the sentencing process and sanctions imposed in accordance with the aboriginal perspective. [87] The Court further states at Paragraph 83:

How then is the consideration of s. 718.2(

e) to proceed in the daily functioning of the courts? The manner in which the sentencing judgewill carry out his or her statutory duty may vary from case to case. In all instances it will be necessary for the judge to take judicialnotice of the systemic or background factors and the approach to sentencing which is relevant to aboriginal offenders.

However, for eachparticular offence and offender it may be that some evidence will be required in order to assist the sentencing judge in arriving at a fitsentence. [88] In my view, the above noted passages from Gladue represent a clear finding that aboriginals have suffered historicaldisadvantage not only because of sociological factors, but because of discrimination in the criminal justice system. These findings arebinding on lower courts, unless significant change since the time of the decision has been established: see R.v. Katigbak 2010 ONCA411 (O.C.A.) at paragraph 84.

Both the Court in Gladue and Parliament, through

section 718.2(e), have directed judges to considerhistorical and sociological factors and restorative justice in sentencing. In my view, in preventing sentencing judges from considering aconditional sentence or an even shorter sentence than that prescribed by s.151(b), the mandatory minimum denies convicted aboriginalsthe fullest possible range of sentencing options which according to Gladue and s. 718(2)(

e) should be given consideration. [89] In so doing, in my view, the mandatory minimum creates a distinction between aboriginal and non-aboriginaloffenders, as submitted by the Applicant. The former group loses the fullest benefit of an analysis which was deemed necessary to address historical disadvantage not similarly recognized as having been suffered by the latter group. The loss of this benefit orentitlement is in my view a form of adverse impact or indirect discrimination as defined in Withler.

It has a negative effect, disentitling aboriginal offenders to the fullest benefit of a refined analysis on sentencing, even if the effect on sentence would ultimatelyhave been minimal. This culturally specific analysis was designed to apply regardless of the seriousness of the offence: see R.v.Kakekagmick (O.C.A) 2007 ONCA 90 , 84 O.R. (3d) 664 at paragraph 38 (leave to appeal to S.C.C. denied). [90] In my view, the Applicant has met the onus with respect to step one of the test.

Step two of the Withler Test Overview of Argument [91] With respect to step two of the Withler test, the Applicant and the Intervener argue strenuously that the distinctionreferred to above creates a disadvantage by perpetuating prejudice and stereotyping. The Intervener repeatedly emphasized therequirement that a law which might be facially neutral comply with the principle of substantive equality as defined in Withler atparagraph 39: “Substantive equality, unlike formal equality, rejects the mere presence or absence of difference as an answer to differential treatment.

Itinsists on going behind the façade of similarities and differences. It asks not only what characteristics the different treatment ispredicated upon, but also whether those characteristics are relevant considerations under the circumstances. The focus of the inquiry ison the actual impact of the impugned law, taking full account of social, political, economic and historical factors concerning the group.” [92] The Applicant strongly emphasized the four factors which the S.C.C. has repeatedly stated should be considered toprovide context to a claim of discrimination, although they are not exhaustive. i.

Whether the distinction at issue reflects and reinforces pre-existing disadvantage, stereotypes and prejudices; ii. correspondence between the ground of discrimination or benefit claimed and the actual needs, capacity or circumstances of theclaimant; iii. ameliorative purpose or effects of the impugned law; and iv. nature and scope of the interest affected by the impugned law. [93] See Withler, at paragraphs 53 and 66, Law at paragraphs 63-75 and 88, and Kapp at paragraphs 19 and 23.

Also see Law,at paragraph 85, wherein the court recognized that these factors may overlap with factors considered at an earlier stage of analysis. [94] The Applicant and the Intervener both rely heavily on the first factor, arguing that, as stated at paragraph 89 above, Imust accept the findings of fact in Gladue and Williams about historical discrimination and prejudice in the criminal justice system.

They submit that these findings are supported by the evidence summarized above which shows that aboriginal representation in thejustice system is increasing, and that there is also no evidence that policies designed to impact the situation have enjoyed significantsuccess. [95] With respect to amelioration, they argue that mandatory minimums, including the one impugned in this case, are in factdetrimental; they deprive convicted aboriginals of the right to full consideration of the principle of restorative justice which emphasizescommunity based sentencing.

Instead the mandatory minimum will exacerbate overrepresentation in jails, as aboriginals including theApplicant T.B. might have received a conditional or lesser sentence if the judge had not been disentitled from applying the principlesof Gladue and s.718(2)(

e) to their fullest. [96] In addition, the Intervener argues that in creating a mandatory minimum for offences such as sexual interference,Parliament has shifted discretion to Crown attorneys who decide whether to proceed with charges which carry a minimum, as opposed to

those such as sexual assault which do not. Such unreviewable decisions may be influenced by direct or systemic discrimination. [97] In a nutshell, the Crown argues that it is clear from Withler and other cases that in determining if a law is substantivelydiscriminatory, the judge can consider it in the context of the purpose and the multiplicity of interests it seeks to balance. Counsel arguesthat the problem of child sexual abuse is extremely serious, in both aboriginal and non-aboriginal communities, and that the need for asentence which promotes the goals of denunciation and deterrence is clear.

Evidence at trial revealed that deterrence and denunciationare promoted in all communities by a short sentence, such as the 14 day minimum, and did not establish that stereotyping and furtherprejudice would result. [98] Furthermore, Crown counsel submits that in arguing that he is entitled to the fullest benefit of Gladue principles and s.718(2)(e), including consideration of a community based sentence, the Applicant is in effect asking for the benefit of an ameliorativeprogram as defined in s. 15(2) of the Charter. He submits that it is clear from R.v.

Kapp, at paragraph 32, that s. 15(2) cannot ground asubstantive right to such a program. Analysis [99] With respect to the latter argument, in my view, the Applicant is not trying ground a substantive right on the type ofaffirmative action program contemplated by s. 15(2). [100] In R.v. Willocks, 22.O.R. (3d) 552, Watt, J.A. considered the argument of a non-aboriginal that he was entitled to thebenefit of an aboriginal justice program, in which aboriginals who agree to certain recommendations by a native counsel may have theircharges withdrawn.

In finding that s. 15(1) of the Charter did not require that the Applicant be eligible for this benefit, Watt called theprogram a “valid affirmative action program” within the meaning of s. 15(2). [101] In my view, in asking that he be given the fullest consideration possible pursuant to s. 718(2) (e), without the floor of amandatory minimum, the Applicant is not asking that a new law, or program of the type addressed in Willocks be made available to him. He is not grounding his claim on the right to an affirmative active program; he is asking for full benefit of law which exists.

In my view,s. 15(2) is inapplicable to this case and the Crown’ related argument needs no further consideration. [102] With respect to the alleged breach of substantive equality, I agree with the Crown that in order to assess substantiveequality, the purpose and possible impact of the law on both the Applicant and others in society must be considered. As stated above, thefourth contextual factor, repeatedly mentioned by the Supreme Court as relevant to a substantive equality analysis is the nature and scopeof the interest affected.

It is settled that legislation need not be perfectly tailored, nor based on individual assessment, in order to complywith s. 15(1) of the Charter. As the Supreme Court of Canada states at paragraph 71 in Withler, “[t]he question is whether the linesdrawn are generally appropriate, having regard to the circumstances of the groups impacted and the objects of the scheme. Perfectcorrespondence is not required.” [103] I find further support for including consideration of the purpose and effect of impugned legislation in a s. 15 analysis inCanadian Foundation for Children v.

Canada (2004) 1 S.C.R. 75, wherein the majority refers to the rationale for s. 43 of theCriminal Code and states at paragraph 66: “We should not artificially truncate the s. 15 equality analysis because similar considerationsmaybe relevant to justification in the event a s.15 breach is established.”.

Jurisprudence [104] Before looking at all contextual factors in this case and applying the law, it is useful to summarize several leading caseswhich are relevant to the question of the constitutionality of the mandatory minimum. [105] The Crown relies in particular upon Gladue, supra, at paragraphs 78 and 79, wherein, the court indicates that sentences forserious offences may be similar, or even the same for aboriginal or non-aboriginal offenders: In describing the effect of s. 718.2(

e) in this way, we do not mean to suggest that, as a general practice, aboriginal offenders must alwaysbe sentenced in a manner which gives greatest weight to the principles of restorative justice, and less weight to goals such as deterrence,denunciation, and separation. It is unreasonable to assume that aboriginal peoples themselves do not believe in the importance of theselatter goals, and even if they do not, that such goals much not predominate in appropriate cases.

Clearly there are some serious offencesand some offenders for which and for whom separation, denunciation, and deterrence are fundamentally relevant. Yet, even where an offence is considered serious, the length of the term of imprisonment must be considered. In some circumstances thelength of the sentence of an aboriginal offender may be less and in others the same as that of any other offender.

Generally, the moreviolent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing. [106] In R.v. Wells, 2000 SCC 10 , [2000] 1 S.C.R. 207, a case of serious sexual assault by an aboriginal offender, theSupreme Court of Canada upheld the decisions of the lower courts that s. 718(2)(

e) did not require that a conditional sentence beimposed. In addition to paragraph 79 of Gladue, supra, the Court cited the landmark sentencing case of R.v. Proulx, 2000 SCC 5, 2000 1S.C.R 61, wherein the Court states at paragraph 106 that there may be some cases in which incarceration is necessary tofulfill the goals of denunciation and deterrence. [107] The Crown also relies on several cases in which mandatory minimum penalties were challenged pursuant to

section 12of the Charter. In particular, counsel emphasizes R.v. Smith, (SCC), [1987] 1S.C.R. 1045 at paragraph 47, and R.v.Latimer 2001 SCC 1 , [2001] 1S.C.R. 3 at paragraph 47, wherein the following citation from a decision of the Ontario Superior

Court is repeated: “It is not for the court to pass on the wisdom of Parliament with respect to the gravity of various offences and the range of penaltieswhich may be imposed upon those found guilty of committing the offences. Parliament has broad discretion in proscribing conduct ascriminal and in determining proper punishment.

While the final judgment as to whether a punishment exceeds constitutional limits setby the Charter is properly a judicial function, the court should be reluctant to interfere with the considered views of Parliament and thenonly in the clearest of cases where the punishment prescribed is so excessive when compared with the punishment prescribed for otheroffences as to outrage standards of decency.” [108] The Crown also cites R.v.

Nasogaluak 2010 SCC 6 , [2010] 1S.C.R.206, in which the S.C.C. ruled that mandatoryminimums cannot be overridden, and described them as “a relatively new phenomenon in Canada law… a forceful expression ofgovernment policy”. [109] With respect to challenges to mandatory minimums pursuant to s. 15 of the Charter, the Crown relies on R.v. Bressette[2010] O.J. No. 3741 (S.C.J., leave to appeal to Ont. C.A. denied). Referring to R.v.

Morrisey [2000] 2000J 2 S.C.R.90, anotherchallenge pursuant to s. 12, De Sotti J. states in answer to the argument that a mandatory minimum negates s. 718(2)(e): The fact that an aboriginal individual must start from a one year inflationary period of incarceration because of a mandatory minimum,does not negate sentencing principles within s. 718.2 of the Criminal Code including s. 718.2(e).

As stated by Justice Arbour, there is amaximum ceiling that is reflected in these firearm related offences, which obviously allows a trial judge significant latitude to tailor anappropriate penalty reflecting both the circumstances of the offence and the personal circumstances of the accused. [110] It was agreed that this decision, having been rendered at trial, is not binding on this Court. [111] The Crown also relies on R.v. Boissoneau [2006] O.J.

No. 5609, (O.C.J.) in which Bignell, J. ruled that a s. 15 breach waspossible, but not clearly proved, in the case of an aboriginal subject to a mandatory minimum. [112] In support of their arguments, the Applicant and Intervener rely on Gladue for its directives concerning s. 718.2(e) –particularly the emphasis on implementing restorative justice – and paragraph 72, in which the Court states: “The existingoveremphasis on incarceration in Canada may be partly due to the perception that a restorative approach is a more lenient approach tocrime and that imprisonment constitutes the ultimate punishment.

Yet in our view a sentence focussed on restorative justice is notnecessarily a “lighter” punishment.” [113] They also rely on Proulx, supra, for the principles that conditional sentences (1) where available in law, are notinapplicable to any offence (paragraph 79); (2) are generally more effective than incarceration at achieving restorative objectives ofrehabilitation and reparation (paragraph 109) and (3) are preventative measures capable of achieving denunciation and deterrence(paragraph 41). [114] With respect to

section 15, the Applicant relies heavily on the decision of Knazan, J. in R.v. King, 2007 ONCJ 238(O.C.J.), in which he found that the mandatory minimum imposed for a second offence of impaired driving by an aboriginal breached s.15 of the Charter. In particular, he states that the principle of substantive equality is offended by mandatory minimums as they negate s.718(2)(e) – the law specifically enacted to take into account disadvantage and prejudice suffered by aboriginals. [115] The Intervener also relies on R.v.

Eldridge (SCC), [1997] 3 S.C.R. 624 for the proposition thatdiscrimination can result from rules of general application such as mandatory minimums, as well as express distinctions. [116] Ultimately, it is obvious that great care must be taken in reconciling and applying the above noted passages from Wells,Gladue and Proulx in the case of an aboriginal convicted of a serious offences. While the importance of emphasizing the principle ofrestorative is justice is clear, it is also evident that serious offences may require incarceration in order that the goals of denunciation anddeterrence be fulfilled.

In my view, taken in their entirety, these cases do not provide that as a matter of law conditional sentences mustalways be preferred for aboriginal offenders; however they should generally be given serious consideration, and may fulfill the goals of denunciation and deterrence. Nevertheless, using its broad discretion, Parliament may choose to use mandatory minimums to rulethem out.

Application of Jurisprudence [117] It is necessary, then, to analyze the evidence and argument in this case in light of directives and guidelines from theSupreme Court of Canada in determine if step two of the Withler test has been satisfied. [118] As stated at paragraph 88 above, it is clear that the factual findings in Gladue must be accepted - namely that bias,prejudice and discrimination all exist in the criminal justice system.

Government policy efforts to improve the situation, as described inparagraph 65 above, are significant; so are the efforts of elders to initiate aboriginal practices such as spirit circles both in and out ofprison. [119] Nevertheless, over-representation of aboriginals in prison appears to be continuing or even increasing – see paragraph 30above. Although Dr.

Gabor noted problems with “census benchmarking” and referred to possible causes of overrepresentation otherthan discrimination, in my view the statistics show too great an imbalance between numbers of aboriginal and non-aboriginal prisoners toconclude that the imbalance is largely due to factors other than those referred to in Gladue. In my view, change to the degree that would

permit me to vary from the factual findings in Gladue, as discussed in Katigbak, supra, has not been established. [120] The Crown’s most forceful argument on the facts is that sexual abuse of children is a legendary social problem, in bothaboriginal and non-aboriginal communities. It causes lifelong psychological harm, and has been passed down through generations onreserves.

In terms of the fourth contextual factor to be considered at step two of the analysis – nature and scope of the interest affectedby the impugned law – it is clear that it is designed to attack a problem suffered by many vulnerable children including aboriginal victimsand their surrounding community. [121] The importance of denunciation and deterrence with respect to child sexual abuse is underlined in R.v. J.D.D. (2002) (ON CA), 58 O.R. (3d) 788 (O.C.A.). The overall message however, is meant to be clear.

Adult sexual predators who would put the lives of innocent children at risk to satisfytheir deviant sexual needs must know that they will pay a heavy price in cases such as this, absent exceptional circumstances…denunciation, general and specific deterrence, and the need to separate offenders from society, must take precedence over the otherrecognized objectives of sentencing. … In this respect, while there may have been a time, years ago, when offenders like the appellant could take refuge in the fact that little wasknown about the nature or extent of the damage caused by sexual abuse, that time has long since passed.

Today, that excuse no longerholds sway. The horrific consequences of child abuse are only too well known. [122] In addition, s. 718.2(a) (ii.1) of the Code directs sentencing judges to give additional consideration to the fact that a victimunder the age of 18 has been abused. [123] As summarized in paragraphs 45 – 63 above, the usefulness of incarceration in fulfilling the goals of denunciation anddeterrence continues to be a matter of debate. The view that conditional sentences can fulfill these goals is prevalent among experts andhas been confirmed in Proulx.

Nevertheless, all expert witnesses made some reference to the deterrent value of short sharp sentences. Dr. Gabor referred to research which demonstrates that offenders in many categories exercise rationality, suggesting that the possibilityof being jailed may operate as a deterrent. In addition, many of the cases noted above link the goals of deterrence and denunciation toincarceration. [124] In my view, it is important to consider the fact that a sentence of 14 days is the shortest mandatory minimum in the Code,as is made clear by a chart filed by the Crown.

It is imposed with respect to a variety of offences – second offences for drinking anddriving, if the Crown proceeds by

summary conviction, certain gambling offences, and, as of 2006, certain sexual offences involvingchildren, again in

summary conviction proceedings. Higher mandatory minimums apply if the Crown proceeds by indictment, and toother sexual offences, such as publishing child pornography, and child luring. [125] At the outset of this case, the Crown submitted that the appropriate range of sentence for these cases is six to fifteenmonths incarceration. In another chart summarizing cases in which penalties have been imposed for child abuse it appears that sentences of more than six months are frequently imposed, although the Crown acknowledged that minor brief touching mayvalidly result in the 14 day minimum. See for example R.v.

D.T. [2011] O.J.No.984 (O.C.J.), in which the minimum was imposed forbrief sexual touching. [126] In short, although the arguments against the 14 day minimum are substantial, it is a relatively brief period in the scheme ofmandatory minimums imposed by Parliament to date, and in comparison to sentences frequently imposed for child abuse.

In my view,this fact provides additional context in determining if step two of the Withler test has been met. [127] In considering context, it is also necessary to address two arguments; 1) that Parliament could have created an exceptionto the mandatory minimum, as has been done in specific instances in England and Australia, and 2) that the minimum has improperlyshifted discretion from the judge to a Crown attorney who will decide whether to proceed with a charge that carries a minimum ratherthan one which does not. [128] With respect to the first argument, it is in my view more relevant to a potential submission concerning minimalimpairment, pursuant to

section 1 of the Charter, than to an alleged s. 15 breach. Indeed counsel have emphasized the point in argument regarding s. 1. As acknowledged by Dr.

Gabor, exception clauses may have merit; however, applying the exception to as entire racialgroup, rather than only to specific exceptional cases, might prove problematic, particularly for non-aboriginals who might claimdiscrimination. [129] In my view, regardless of the possible usefulness of an exception clause, such a hypothetical suggestion is not particularlyhelpful in deciding if the existing law meets step two of the test in Withler. [130] As I understand it, the Intervener’s argument regarding the second question is to the effect that Crown attorneys are a keypart of the criminal justice system, which has been found to be discriminatory.

As their decisions are unreviewable, and might beinfluenced by discrimination, they contribute to substantive inequality. [131] In my view, the link between a hypothetical discriminatory decision by a Crown attorney, regarding what charge shouldproceed and substantive equality is tenuous. Making this decision is a core function of the Crown, as described in Kreiger v. LawSociety of Canada of Alberta 2002 SCC 65 , [2002] 3 SCR 372. Crown discretion must be exercised in order for matters toproceed.

Many authorities in the criminal justice system – police officers, probation officers, prison officials – make decisions affectingoffenders which are not easily subject to review and could be discriminatory. In my view, the argument that potentially unreviewabledecisions of Crown attorneys are a particular cause of substantive inequality is not born out by any evidence or case law. Crown

attorneys are obviously part of the criminal justice system which was found in Gladue to be discriminatory in its entirety; however, that finding does not mean that their decisions on what charges to proceed with in child abuse cases generally reflect discrimination.

Conclusion – s.15 [ 132 ] Ultimately, after considering the relevant case law, the testimony of the expert witnesses, the other contextual factors referred to above, and all arguments, I conclude the Applicant has not met step two of the test in Withler . [ 133 ] As stated above, Gladue has recognized repeatedly that discrimination and overrepresentation of aboriginals exist in the criminal justice system; however, the mandatory minimum must be analyzed with regard to the objects of the scheme and circumstances of the groups impacted.

Those circumstances include: 1) A severe problem of sexual abuse of vulnerable children in this case and in general; 2) Evidence that the problem has always been treated seriously in the aboriginal community and has resulted in at least temporary removal of the offender from the community.

The use of incarceration to address this pressing problem today is supported by a significant percentage of aboriginals, and efforts are being made to culturally adapt the system; 3) The fact that the 14 day minimum is very brief, in light of the severity of the problem; 4) Expert testimony that short, sharp periods of incarceration may serve as a deterrent, particularly if rationality is involved; and 5) Evidence that although the criminal justice system has been found to be discriminatory, the many causes of these problems do not appear to include the imposition of longer sentences on aboriginals than non-aboriginals.

Nor was evidence proffered of bias in core decision making of Crown attorneys. [ 134 ] Furthermore, the Applicant has not clearly established a link between the 14 day minimum and the perpetuation of prejudice and discrimination in the criminal justice system.

Obviously, it is possible that an offender who is jailed for 14 days may have received a conditional sentence if he had not been deprived of judicial consideration of that option; however, the link between that possibility, with regards to an unknown numbers of offenders, and perpetuation of discrimination in the criminal justice system constituting a breach of substantive equality is tenuous.

I appreciate the difficulty in proving such a link, given that decisions to impose community based sentences which were not made because of a mandatory minimum cannot be analyzed or quantified; however, the link cannot be assumed. [ 135 ] As stated in Withler , the question is whether the lines drawn are generally appropriate.

Because of the factors referred to above, in the light of case law which in its entirety supports consideration of incarceration of all offenders including aboriginals in serious matters such a child sexual abuse, and despite the problem of over-representation, I find that the lines drawn are not inappropriate. It has not been shown that the impugned mandatory minimum perpetuates disadvantage, prejudice or stereotyping or otherwise breaches the principles of substantive equality as defined at step two of the Withler test. The test has not been met.

Therefore, although the Applicant has proved that an adverse effect is created by s.151 (b), he has not established a breach s.15 of the Charter.

Section 7 of the Charter [ 136 ] The Applicant argues that s. 151 (

b) also breaches

section 7 of the Charter. The Intervener does not join him in this argument. The Respondent acknowledges that the sentencing provision breaches the Applicant’s right to liberty, as it requires incarceration, but that it in no way breaches the principles of fundamental justice. [ 137 ] In a nutshell, the Applicant argues that judicial impartiality at the institutional level has been recognized as a principle of fundamental justice in R.v. Lippe [1991] 2 S.C.R. 134 , and that it is breached in this case. He does not allege bias on the part of any particular judge; rather he argues that bias is created by the fact that judges, who must be impartial, are required by s. 151 (

b) to “rubber stamp” a 14 day minimum sentence.

He notes the finding in Gladue that bias against aboriginals exists in the criminal justice system, and argues that in imposing the mandatory minimum a judge perpetuates this bias or a reasonable apprehension of it and thereby breaches a principle of fundamental justice. [ 138 ] The Crown agrees that judicial impartiality is a principle of fundamental justice; however counsel again cites Smith , supra, at paragraph 47 and Latimer , supra, at paragraph 77 for the following proposition: “It is not for the court to pass on the wisdom of Parliament with respect to the gravity of various offences and the range of penalties which may be imposed upon those found guilty of committing the offences.” [ 139 ] The Crown submits that in creating the mandatory minimum, Parliament has not usurped the role of the judge, but has

determined an appropriate range, without compromising the impartiality of the judiciary. [140] In addition, counsel cites Cunningham v.

Canada (SCC), [1993] 2 S.C.R. 143 at paragraph 17, for theproposition that fundamental justice requires that a balance be struck between liberty interests and protection of society, and that thepressing need for deterrence of child abuse is a significant factor in analyzing an alleged breach. [141] In Lippe, the Respondent argued that the Quebec municipal court system, which allows practicing lawyers to sit part timeas municipal judges, raises a reasonable apprehension of bias at an institutional level as a lawyer’s duties might conflict with his or herduties in the role of judge.

The argument was made pursuant to s. 11(

d) of the Charter, which guarantees the right to an independent andimpartial tribunal. The Court ruled that given that many safeguards have been put in place to eliminate conflict, the dual role of lawyerand part time judge would not raise a reasonable apprehension of bias in a substantial number of cases. [142] In my view, the subject matter of complaint in this case is very different from that addressed in Lippe.

In this case, thechallenge is to a sentencing regime which limits judicial discretion in Lippe, the respondents attacked the judicial structure of themunicipal court, which is clearly an institution which is required to be impartial.

In my view, although the Applicant employs the term“institutional bias”, his submission is in its essence directed at the more commonly referred to concept of judicial impartiality, which hesays is removed from the sentencing process to the extent of the minimum. [143] It is important to note the Applicant’s reliance on Gladue, wherein the Supreme Court refers to “systemicdiscrimination in the criminal justice system”, (paragraph 61), and an “institutional approach” that results in longer sentences and lessbail for aboriginals offenders (paragraph 65).

I do not understand the Applicant to be arguing that the mandatory minimum violates s. 7because of systemic discrimination in the entire criminal justice system; it would be difficult to define the entire system as an“institution”, and to link a brief mandatory minimum with a breach of s.7 by that “institution”. Ultimately, in my view, the argumentconstitutes a challenge to judicial impartiality, seemingly to judges as an entity rather than as individuals. [144] In my view, the Applicant has not established a s. 7 breach. As noted under the

section 15 analysis, the 14 day periodis brief, and addresses the pressing problem of abuse of vulnerable children. It does not in any way render judges impartial;although it limits their discretion, it does not usurp their function or counsel them to unfairly weigh or prefer one position. There is nobasis for finding that an informed person would reasonably apprehend bias in the institution of the judiciary, or in the decisions in asubstantial number of cases because of this limiting of discretion.

Any suggestion that historical discrimination in the criminal justicesystem renders sentencing decisions impartial because of a mandatory minimum is simply too vague to be accepted. [145] In considering previous challenges to mandatory minimums pursuant to s. 7, I note that the decision in Nur, supra,addresses an alleged breach based on the arbitrariness of a specific sentencing scheme for gun offences, and King and Boissoneau, supra,address the transfer of power from the judge to the prosecutor who chooses to give notice that a higher penalty will be sought for asecond drinking and driving offence.

In my view, the argument in this case does not encompass these issues. [146] In Bressette, supra, the s. 7 argument on behalf of an aboriginal claimant was similar to that made in this case. DeSotti J.ruled that the Applicant had not proved that the mandatory minimum would result in more jailing of aboriginals, and that Parliament wasusing it to send a message about the harm caused by guns. He therefore found that no “institutional bias” was demonstrated. Conclusion – s. 7 [147] Ultimately, in my view, there is no proof that the mandatory minimum in this case offends a principle of fundamentaljustice.

The principle of judicial impartiality is not breached. Furthermore, as stated in the

section 15 analysis, and in Bressette, supra,the link between overrepresentation and the alleged Charter breach is tenuous. [148] The Applicant has therefore not established a breach of s. 7. Conclusion on Application [149] Given that no breach of s. 7 or s. 15 of the

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