Sentencing bias in Sask. evident

[Oscar]

Sentencing bias in Sask. evident

[ http://www.thestarphoenix.com/news/Sent ... story.html ]

By James Scott, The Starphoenix October 10, 2014

Scott is a criminal defence lawyer in Saskatoon.

Justice W.J. Vancise expressed concern regarding criticisms of Saskatchewan's sentencing regime in his viewpoint article, Gladue factors regularly applied in Sask. courts (SP, Oct. 3). While I have enormous admiration for the retired justice, I respectfully disagree with his following statement:

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

It is true that Vancise has been at the forefront of Canadian jurists in pointing out the remedial nature of the 1996 amendments to the Criminal Code. He was one of the first judges to conclude that these amendments were enacted into law by Parliament to address the over-representation of aboriginals in Canadian prisons.

Even before the Supreme Court interpreted the 1996 sentencing amendments in its 1999 landmark ruling, R. v. Gladue, Justice Vancise wrote his powerful dissent in R. v. MacDonald in which he opposed the majority of the Court of Appeal's belief that the 1996 amendments were merely a codification of the common law and, therefore, did not change how sentences were imposed.

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

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

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

Moreover, this sentencing data show a bias against aboriginals in Saskatchewan that is worse than any other province in Canada.

In Saskatchewan, offenders identified as aboriginal were sentenced on average to more than twice as much custodial time as those offenders where there was no indication that they are aboriginal. There were 214 aboriginal people who received written sentencing decisions on CanLII since 1996, and they were sentenced to an average of 87.4 months custody per person.

On the other hand, there were 270 other offenders who were sentenced to 39.3 months custody each on average - less than half the average custodial time as aboriginal offenders. Furthermore, my examination of the data shows that this is a growing phenomenon.

I invite Justice Vancise, or any other interested person, to view the raw data that I used as a basis of my findings. This data can be found on my law firm's Facebook page: [ https://www.facebook.com/scottbeavenlawoffice ].

I also invite interested parties visiting our Facebook page to view my interpretation of this data contained in my paper prepared for Saskatchewan Legal Aid. It's entitled Reforming Saskatchewan's Biased Sentencing Regime.

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