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Listening to what the criminal justice system hears and the stories it tells : judicial sentencing discourses… Kaiser-Derrick, Elspeth 2012

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LISTENING TO WHAT THE CRIMINAL JUSTICE SYSTEM HEARS AND THE STORIES IT TELLS: JUDICIAL SENTENCING DISCOURSES ABOUT THE VICTIMIZATION AND CRIMINALIZATION OF ABORIGINAL WOMEN  by Elspeth Kaiser-Derrick A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in The Faculty of Graduate Studies (Law) THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver) December 2012  © Elspeth Kaiser-Derrick, 2012  ii  Abstract Criminalized Aboriginal women continue to be overrepresented in Canadian prisons. Research demonstrates they often have extensive experiences of victimization. This thesis explores how judges navigate these issues on sentencing, primarily by examining discourses about victimization in selected judgments. This author identified and reviewed 91 decisions sentencing Aboriginal women offenders, focusing those dealing with conditional sentences where possible. This author uses the feminist theory of the victimization-criminalization continuum to inform her thesis. Parliament attempted to respond to the overincarceration of Aboriginal peoples in 1996 with the enactment of amendments to the sentencing regime: s. 718.2(e) requires judges to consider alternatives to imprisonment for Aboriginal offenders where appropriate, and s. 742.1 offers one such alternative through the conditional sentence order. In R. v. Gladue, the Supreme Court of Canada directed how judges are to engage in the sentencing analysis for Aboriginal offenders. In 2012, the Court offered further clarification on this direction in R. v. Ipeelee. This is the context for this thesis. The histories of victimization of criminalized Aboriginal women being sentenced generally overlap with factors that comprise the Gladue analysis, and are interrelated. However, this author suggests that the focuses of the victimization-criminalization continuum and the Gladue analysis differ: the victimization-criminalization continuum most directly focuses on gendered vulnerabilities and reactions to victimization, whereas the Gladue analysis most directly focuses on reverberations of colonization (and how that should impact sentencing). This author uses various judgments to examine the overlap between these analyses, highlighting decisions that successfully integrate gendered understandings of victimization histories within the Gladue analysis, and those demonstrating more decontextualized reasoning. This author then discusses how judicial discourses about victimization intersect with discourses about rehabilitation and treatment. This author suggests associated problems that appear at this intersection – particularly where imprisonment is regarded as a place of healing (despite documented deleterious effects of incarceration). Finally, this author argues that recent incursions into the conditional sentencing regime through amendments to the Criminal Code that restrict its availability (first through the passage of Bill C9 and then Bill C-10) are problematic for criminalized Aboriginal women who may otherwise be sent to prison.  iii  Table of Contents  Abstract.......................................................................................................................................... ii Table of Contents ......................................................................................................................... iii List of Figures............................................................................................................................... vi Acknowledgements ..................................................................................................................... vii Dedication ................................................................................................................................... viii 1  Figure 1: “Home & Native Land” (linocut in ink) ......................................................... 1 Introduction and Background ......................................................................................... 2 1.1 Listening to what the criminal justice system hears ................................................... 2 1.2 Overrepresentation: The numbers, growing from colonial roots ................................ 6 1.3 Thesis pathways and research questions ................................................................... 12 1.4 Methodology: Finding criminalized Aboriginal women in the judgments ............... 14 1.5 Aboriginal women along the victimization-criminalization continuum ................... 21 1.6 Codifying the specificity of Aboriginal peoples at sentencing ................................. 23 1.7 The purpose and principles of sentencing: an overview ........................................... 24 1.8 R. v. Gladue: Fleshing out section 718.2(e) .............................................................. 29 1.8.1 R. v. Ipeelee: Underscoring and bolstering Gladue ................................... 33 1.8.2 Naming colonization .................................................................................. 36 1.9 Alternatives to imprisonment: Conditional sentence orders ..................................... 37 1.9.1 The 2007 conditional sentencing amendments .......................................... 41 1.10 Restrictions on judicial discretion in the conditional sentencing regime: Preliminary problems .............................................................................................. 45  2  Figure 2: “A Place to Live is also a Way to Live” (linocut in ink) ............................. 48 Pathways through Feminist Theories: The Victimization and Criminalization of Aboriginal Women .......................................................................................................... 49 2.1 Introduction ............................................................................................................... 49 2.2 Blurred pathways: Directions for the victimization-criminalization continuum ...... 52 2.3 Where victimization constrains women’s options and support: The victimizationcriminalization continuum ........................................................................................ 55 2.4 Shifting pathways: Structural dislocation and layered victimizations ...................... 64 2.5 Violence against Aboriginal women ......................................................................... 68 2.6 Gendered intersections in the criminalization of Aboriginal women ....................... 72 2.7 Revisiting the colonization that never left ................................................................ 75 2.7.1 Criminalization: A branch or strategy of colonization? ............................. 82 2.8 The tension within and slide from Gladue factors to risk factors to treatment......... 89 2.9 The pathway to the cases in my study ...................................................................... 94  3  Figure 3: “Best for Everyone to Drop Out” (charcoal, with photo) ........................... 96 Judicial Engagement with the Victimization-Criminalization Continuum............... 97 3.1 Introduction: Criminalized aboriginal women’s stories of victimization and listening  iv  3.2  3.3  3.4  3.5  3.6 4  to what sentencing judges hear .................................................................................. 97 Judicial navigations along the victimization-criminalization continuum ................ 100 3.2.1 Jillian Shenfield ....................................................................................... 104 3.2.2 Candace Woods ....................................................................................... 106 3.2.2 Kara Dennill ............................................................................................. 109 3.2.3 Josée Chouinard ....................................................................................... 112 3.2.4 Valerie Kahypeasewat ............................................................................. 115 Determinative language in judicial discourses about victimization: Aboriginal women’s narrow agency within constrained options .............................................. 122 3.3.1 Helen Good .............................................................................................. 123 3.3.2 June Tippeneskum ................................................................................... 128 3.3.3 Angela Gregoire ....................................................................................... 130 3.3.4 Nicole Pawis .................................................................................................. 133 Decontextualizing the Gladue analysis: Problems in judicial reasoning about the individually and collectively victimizing colonization ........................................... 136 3.4.1 Lisa Whitford ........................................................................................... 139 3.4.2 Jeanette Niganobe .................................................................................... 143 3.4.3 Juanita Johnson ........................................................................................ 146 3.4.4 Elizabeth Jankovic ................................................................................... 148 3.4.5 Lisa Bluebell ............................................................................................ 151 3.4.6 Susan Collins ........................................................................................... 155 Finding balance on shifting pathways: Where the Gladue analysis and the victimization-criminalization continuum successfully converge in judicial reasoning ................................................................................................................. 158 3.5.1 Tracey Shore ............................................................................................ 158 3.5.2 Crystal Audy ............................................................................................ 163 Conclusion: Different focuses sharing the victimization overlap ........................... 168  Figure 4: “Behind the Walls Without Any Ropes” (ink wash, linocut, and mixed media) ............................................................................................................................. 172 The Slide from the Victimization Overlap to Judicial Discourses about Healing through Imprisonment ................................................................................................. 173 4.1 Introduction ............................................................................................................. 173 4.2 Two branches of the victimization overlap: Judicial contextualization of victimization through the Gladue analysis and decontextualized overfocus on victimization detached from systemic factors......................................................... 178 4.2.1 Contextualized judicial reasoning ............................................................ 179 4.2.2 Individualizing judicial reasoning............................................................ 185 4.3 The nexus between judicial understandings of the specificity of criminalized Aboriginal women’s victimization histories and imprisonment ............................. 201 4.4 Issues complicating the task of sentencing criminalized Aboriginal women ......... 217 4.4.1 The availability of community resources ................................................. 218 4.4.2 The fraught relationship between punishment and healing ..................... 230 4.5 Tension between punishment and healing .............................................................. 230 4.5.1 Punitive aspects of the restorative-oriented conditional sentence order .. 230 4.5.2 The revolving door of prison ................................................................... 234  v 4.5.3 Prison treatment services ......................................................................... 238 4.4 Conclusory thoughts: Imprison with great caution ................................................. 245 5  Figure 5: “…Not Separate” (acrylic on canvas)......................................................... 248 Conclusion ..................................................................................................................... 249 5.1 Listening to the victimization histories of criminalized Aboriginal women, as heard by sentencing judges ..................................................................................... 249 5.2 The role of the sentencing judge ............................................................................. 254 5.3 Creative sentencing and judicial discretion ............................................................ 257 5.4 Listening, but alongside voice and action in communities ..................................... 263  Bibliography .............................................................................................................................. 266 Appendix A ................................................................................................................................ 286 Appendix B ................................................................................................................................ 287  vi  List of Figures Figure 1 “Home & Native Land” (linocut in ink)…………………………………………….1 Figure 2 “A Place to Live is also a Way to Live” (linocut in ink)…………………………..48 Figure 3 “Best for Everyone to Drop Out” (charcoal, with photo)………………………...96 Figure 4 “Behind the Walls Without Any Ropes” (ink wash, linocut, and mixed media)………………………………………………………………………………172 Figure 5 “…Not Separate” (acrylic on canvas)…………………………………………….248  vii  Acknowledgements I would like to offer heartfelt thanks my supervisor, Dr. Emma Cunliffe. She has been in my corner since I began my studies at UBC, and I am very grateful for her support and guidance throughout the process of writing this thesis. She challenges me, pushes my thought, and is the primary reason I decided to remain at UBC for my doctoral work. Writing this thesis has been the most difficult and rewarding academic experience of my life thus far, and I credit much of this to Emma’s thoroughness, dedication, and insight. In addition to her brilliance, Emma is just a lovely person, and I feel extremely lucky that I will continue to work with her through the rest of my graduate studies. I could not ask for a better supervisor. I also want to thank my second reader, Professor Michael Jackson. I read his book Justice Behind the Walls: Human Rights in Canadian Prisons in the summer before I started the LL.M. program at UBC and it made an indelible mark on me, solidifying my interest in prison issues. I have since taken his Penal Policy course, and it is with his encouragement that I have used my paintings from that class to open each chapter of this thesis. Professor Jackson’s lifetime of prison work has truly inspired me, and I very much appreciate having his feedback for this thesis during its review. Thanks also to all UBC Law faculty and staff members who have been part of my pathway to the completion of this thesis. I offer particular thanks to Joanne Chung, who has been wonderful to me since I began at UBC. As always, I give my deepest appreciation to my family. I cannot express how grateful I am for their unfailing love and support. This thesis, like most things in my life, would not have been possible without my family. My parents have been instrumental in shaping my social conscience and how I view the world. Most importantly, they are just always there for me when I need them, and (sometimes aggravatingly) even when I do not. Finally, I want to thank my amazing sisters, Catriona and Freya. I love them more than anything, and they keep me grounded and laughing.  viii  Dedication  To my family  1 Figure 1  “Home & Native Land” (linocut in ink)  2 (1) Introduction And Background 1.1 Listening to what the criminal justice system hears During my law degree at the University of Alberta (September 2006 to April 2009), I worked extensively with the clinical program Student Legal Services of Edmonton.1 In one of my capacities there,2 I regularly attended outreaches at Kindred House.3 Kindred House is a drop-in centre for street sex workers (women and transgendered people over 18 years old). It is grounded in the philosophy of harm reduction, which in this context means “meet[ing] the clients where they’re at.”4 Kindred House offers a safe place for its clients to take respite from the streets, supplies various health and other resources, and provides a sense of community to alleviate some of the isolation instilled by marginalization. I would sit with a fellow law student during these outreaches, sometimes offering legal information and pamphlets, periodically opening files for women who lacked other access to legal representation, intermittently talking to women who just wanted someone to talk to, and constantly aware that this space belonged to people who have been pushed to the periphery of public spaces and services. It was apparent that these women lived very hard lives, with very little support and resources, and many had been criminalized. I was appalled that the overwhelming majority of clients were Aboriginal. 5  1  University of Alberta, Faculty of Law, “Student Legal Services of Edmonton”, online: Student Legal Services http://www.slsedmonton.com/. 2 University of Alberta, Faculty of Law, “Legal Education and Reform Project”, online: Student Legal Services http://www.slsedmonton.com/education-reform/community-outreach/. 3 Boyle McCauley Health Centre, “Services and Programs: Kindred House”, online: BMHC http://www.bmhc.net/services/kindred.html. 4 The Coordinator described the centre’s harm-reduction philosophy in these terms to me when I first attended Kindred House, although this direct quote is from her submissions to a Parliamentary body: Ottawa, House of Commons, Subcommittee on Solicitation Laws of the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness, 38th Parl. 1st sess., No. 19 (31 March 2005), online: Parliament of Canada http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=1723237&Language=E&Mode=1&Parl=38&Ses =1#Int-1193178. at 31. [Ottawa, House of Commons, Subcommittee on Solicitation Laws] 5 I will use the term “Aboriginal” in this thesis, largely to retain consistency with the debates, cases, and also because it comports with the legal term (incidentally, it is more all-encompassing than First Nations because it includes Métis). However, it should be noted that the term “Aboriginal “has been broadly criticized both in Canada and internationally as yet another colonial construct that promotes divisiveness and ‘Pan-Indianism’” [Native  3 Program coordinator Shawna Hohendorff reported to a Parliamentary subcommittee on sex work that of her clients at Kindred House, roughly 80% are Aboriginal.6 This overrepresentation was also evident in the van support outreaches for street sex workers that I volunteered for with the PAR Foundation 7 and Crossroads. 8 It was also apparent that this overrepresentation is intergenerational; for example, during one van outreach, an Aboriginal mother and daughter approached the van together to access resources for sex workers. My linocut/painting opening this chapter (Figure 1) symbolizes the overrepresentation of Aboriginal women in Canadian prisons – bringing different meaning to the anthemic “Home & Native Land.” I created a linocut by carving the image of a woman lying in a pose that evokes a landscape – a prisonscape – and reprinted this image three times to signify overrepresentation. Referring to the overrepresentation of Aboriginal peoples in the criminal justice system, the Royal Commission on Aboriginal Peoples (RCAP) concluded “over-representation is linked directly to the particular and distinctive historical and political processes that have made Women’s Association of Canada, “Culturally Relevant Gender Based Models of Reconciliation” (March 2010), online: NWAC http://www.nwac.ca/research/nwac-reports. at 3.] without respecting individual nations, diversity among them, and their autonomy in naming themselves. The term “Aboriginal” has been problematized for “originat[ing] from ‘outside-naming’” because it is a settler term for indigenous peoples. [Joane Martel & Renée Brassard, “Painting the Prison ‘Red’: Constructing and Experiencing Aboriginal Identities in Prison,” (2008) 38(2) British Journal of Social Work 340 at 358. [Martel & Brassard]] Writers have resolved this issue in various ways, such as suggesting “the term Onkwehonwe [which] connects the common experiences of ‘Original’ peoples globally under colonial powers” [NWAC, “Culturally Relevant Gender Based Models,” supra note 5 at 3-4.], or referring to each nation by their indigenous name. In the spirit of the latter approach, in Chapters 3 and 4 I have endeavoured to also include the nation to which each woman offender being sentenced is connected (where judges specify the nation). “Aboriginal cultures in Canada are extremely diverse and complex in their values, beliefs, customs and traditions,” [Chris Andersen, “Governing Aboriginal Justice in Canada: Constructing Responsible Individuals and Communities through ‘Tradition’” (1999) 31 Crime, Law & Social Change 303 at 308. [Andersen]] and I am conscious that the term “Aboriginal” is essentializing. For an interesting discussion about identity reclamation and the Anishinabek nation campaigning to eradicate the term “Aboriginal,” see Ahni, “Anishinabek Outlaw Term ‘Aboriginal’”, online: (2008) Intercontinental Cry http://intercontinentalcry.org/anishinabek-outlaw-term-aboriginal/. For thoughtful comments about being non-Aboriginal scholars writing about Aboriginal issues but striving to do so with sensitivity and a view to assist decolonizing efforts, see Martel & Brassard, supra note 20 at 341-2. 6 Ottawa, House of Commons, Subcommittee on Solicitation Laws, supra note 4 at 33. 7 The PAR Foundation, online: PAR http://www.parfoundation.ca/. 8 E4C, “Crossroads”, online: E4C http://www.e4calberta.org/crossroads.html. For the Crossroads outreaches, part of my role was to record information about the sex workers who approached – the vast majority of the approximately thirty women using the van resources each night self-identified as Aboriginal, which the staff member drivers affirmed was representative of a typical night’s demographics.  4 Aboriginal people poor beyond poverty,”9 in a deeply entrenched “process of colonization.”10 Hohendorff commented to the Parliamentary subcommittee that her clients felt unheard and alienated from institutions with power, as if “their particular life stories” did not matter.11 She explained that “I don't know all of the answers, and I think it's a complex set of problems,” but what “we need to do is to listen…so that they are part of our community, not separate.”12 All of my paintings in the series that open each chapter of this thesis feature nude women – the women represent Aboriginal women prisoners, and I have depicted the figures naked to illustrate that at bottom, when you strip away everything else, we all share our common humanity. In this thesis, I demonstrate the importance of Hohendorff’s insight by exploring the limited histories of criminalized Aboriginal women that appear in their sentencing judgments (such as those presented through pre-sentence reports (PSRs)). Often these histories reveal layered experiences of victimization, including sustained victimizations (frequently occurring throughout these women’s lives), and diverse forms of victimization (often involving violence, such as physical and sexual victimization, but also other types of victimization about which I expand below, including emotional abuse, neglect, and substance abuse). This prevalence of victimization makes the interrelation between the victimization and criminalization of Aboriginal women central to my thesis. My focus on sentencing judgments does not go far enough to respond to Hohendorff’s suggestion; it remains necessary for legal and policy-based work to incorporate the actual voices of Aboriginal women themselves. Nonetheless, the presentation of  9  Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada (Ottawa: Canada Communication Group Publishing, 1996) at 46. [RCAP, Bridging the Cultural Divide] 10 Ibid. at 47. 11 Ottawa, House of Commons, Subcommittee on Solicitation Laws, supra note 4 at 31. 12 Ibid. at 32.  5 criminalized Aboriginal women’s histories to the courts acts as one of the few ways that their lives might be “listened to” in the criminal justice system. I am interested in what information the sentencing judge hears, and how this influences sanctions. The context in which sentencing judges learn about criminalized Aboriginal women includes the legislative requirement that they consider the unique circumstances of Aboriginal peoples and reduce reliance on incarceration (s. 718.2(e)13 of the Criminal Code14) and the Supreme Court of Canada’s direction in R. v. Gladue15 and R. v. Ipeelee16 establishing a judicial framework for sentencing Aboriginal peoples. Gillian Balfour writes that [t]he disconnect between restorative justice sentencing practices – a seemingly progressive legislative initiative – and the unrelenting coercive punishment of Aboriginal women lies, to a great extent, in the exclusion of women’s narratives of violence and social isolation in the practice of sentencing law.17 For Balfour, to meaningfully import the experiences of Aboriginal women into sentencing law, courts must situate these women’s criminality “in the context of gendered conditions in Aboriginal communities,”18 by considering (within the factors comprising the Gladue analysis) how past experiences of violence may have contributed to their coming before the courts as offenders. Balfour concludes that the ways defence counsel present their cases and how sentencing judges use Gladue factors both fail to “recognize the gendered conditions of endangerment in Aboriginal women’s communities as a systemic factor.”19 My review of the cases I have identified is guided by related questions about how the presentation 13  and  interpretation  of  Aboriginal  women’s  histories  impact  sentencing  Code, infra note 14 at s. 718.2(e). Criminal Code, R.S.C., 1985, c. C.-46. [Code] 15 R. v. Gladue, [1999] 1 S.C.R. 688. [Gladue] 16 R. v. Ipeelee, 2012 SCC 13. [Ipeelee] 17 Gillian Balfour, “Falling Between the Cracks of Retributive and Restorative Justice: The Victimization and Punishment of Aboriginal Women” (2008) 3(2) Feminist Criminology 101 at 102. [Balfour, “Falling Between the Cracks”] 18 Ibid. at 103. 19 Ibid. at 116. 14  6 determinations. It is imperative to examine how judges present and use criminalized Aboriginal women’s histories to assist with sentencing determinations because the overrepresentation of Aboriginal women in the system is steadily increasing. In its 2009/2010 report, the Office of the Correctional Investigator cautions that “[t]he Aboriginal women offender population has grown by almost 90% in the last ten years, and it is the fastest growing segment of the offender population.”20 1.2 Overrepresentation: The numbers, growing from colonial roots The overrepresentation of Aboriginal peoples in the Canadian criminal justice system is stark given that in 2006 Aboriginal peoples only comprised 3.8% of the total population of Canada.21 It is telling that the correctional system provides the most extensive body of statistical information about Aboriginal peoples in the criminal justice system.22 Samuel Perreault writes for Juristat that “[i]n 2007/2008, Aboriginal adults accounted for 22% of admissions to sentenced custody.”23 Statistics Canada sets out the representation of Aboriginal offenders within each segment of admissions to correctional services: Aboriginal peoples comprise 20% of the remand population; 25% of provincial/territorial sentenced custody; 18% of federal custody; 21% of  20  Canada, Office of the Correctional Investigator, Annual Report of the Office of the Correctional Investigator 2009-2010, (Ottawa: The Correctional Investigator Canada, 2010), online: Office of the Correctional Investigator http://www.oci-bec.gc.ca/rpt/index-eng.aspx. at 49. [OCI, Annual Report 2009-2010] 21 Statistics Canada, 2006 Census: Analysis Series: Aboriginal Peoples in Canada in 2006: Inuit, Métis and First Nations, online: Statistics Canada http://www12.statcan.gc.ca/census-recensement/2006/as-sa/97-558/p2-eng.cfm. 22 See e.g. Statistics Canada: Juristat, Victimization and Offending Among the Aboriginal Population in Canada by J-A. Brzozowski, A. Taylor-Butts, & S. Johnson (Ottawa: Minister of Industry, 2006), online: Statistics Canada http://www5.statcan.gc.ca/access_acces/alternative_alternatif.action?l=eng&loc=http://www.statcan.gc.ca/pub/85002-x/85-002-x2006003eng.pdf&t=Victimization%20and%20offending%20among%20the%20Aboriginal%20population%20in%20Canada. at 18. [Juristat: Brzozowski, Taylor-Butts & Johnson, Victimization and Offending]. See also NWAC, “What Their Stories Tell Us: Research Findings from the Sisters in Spirit Initiative” (2010), online: Native Women’s Association of Canada http://www.nwac.ca/media/release/21-04-10. at 15. [NWAC, “What Their Stories Tell Us”] 23 Statistics Canada: Juristat, The Incarceration of Aboriginal People in Adult Correctional Services by S. Perreault (Ottawa: Minister of Industry, 2009), online: Statistics Canada http://www76.statcan.gc.ca/stcsr/query.html?style=emp&qt=perreault&charset=iso-88591&qm=1&oq=&rq=1&la=en. at 5. [Juristat, Perreault, The Incarceration of Aboriginal People]  7 conditional sentences; and 20% of probation orders. 24 These figures vary substantially by province and territory and may underrepresent the Aboriginal prison population.25 Nonetheless, the overrepresentation of Aboriginal peoples in prison is “consistent across all provinces and territories.”26 The situation for Aboriginal women is specifically problematic. In 2009, Perreault concluded that within the overall statistics of the overrepresentation of Aboriginal peoples in prison, Aboriginal women are even more disproportionately represented “among the female correctional population than are Aboriginal males within the male correctional population.”27 Statistics Canada reports that “[i]n 2010/2011, 41% of females (and 25% of males) in sentenced custody were Aboriginal.” 28 The 2010/2011 report from the Office of the Correctional Investigator (OCI) states about federally sentenced populations that “34% of the incarcerated women offender population is Aboriginal,” and that “[m]ore than 65% of new female admissions are serving a sentence of less than three years.”29 As in criminal justice system statistics, Aboriginal women are also overrepresented in terms of the levels of victimization they experience. Shannon Brennan reports that in 2009, “close to 67,000 or 13% of all Aboriginal women aged 15 and older living in the provinces 24  Statistics Canada, Aboriginal Statistics at a Glance by A. Bisson et al. (2010), online: Statistics Canada http://www.statcan.gc.ca/pub/89-645-x/2010001/c-g/c-g014-eng.htm. 25 Various within these figures omit data from some provinces/territories, including the omission of data from the Northwest Territories in the probation and conditional sentences categories and the exclusion of Nunavut from the remand section. [Ibid.] These omissions may be significant because of the number of Aboriginal peoples living (and criminalized) in the north (Aboriginal peoples account for 50% of the Northwest Territories population in 2006, and 85% of the Nunavut population). [Ibid.] 26 Canada, Statistics Canada: Canadian Centre for Justice Statistics, Adult Correctional Statistics in Canada, 2010/2011 by M. Dauvergne (Ottawa: Minister of Industry, 2012), online: Statistics Canada http://www.statcan.gc.ca/pub/85-002-x/2012001/article/11715-eng.htm#a7. [Statistics Canada, Dauvergne, Adult Correctional Statistics] 27 Juristat, Perreault, “The Incarceration of Aboriginal People”, supra note 23 at 9. See also Juristat: Brzozowski, Taylor-Butts & Johnson, Victimization and Offending, supra note 22 at 13. 28 Statistics Canada, Dauvergne, Adult Correctional Statistics, supra note 26. 29 Canada, Office of the Correctional Investigator, Annual Report of the Office of the Correctional Investigator 2010-2011, (Ottawa: The Correctional Investigator Canada, 2011), online: Office of the Correctional Investigator http://www.oci-bec.gc.ca/rpt/index-eng.aspx. at 50. [OCI, Annual Report 2010-2011]  8 stated that they had been violently victimized…and were almost three times more likely than non-Aboriginal women to report having been a victim of a violent crime” (irrespective of whether the “violence occurred between strangers or acquaintances, or within a spousal relationship”). 30 Brennan writes that Aboriginal women also report having experienced proportionally more emotional or financial abuse within their spousal relationships than nonAboriginal women.31 These figures likely underreport the true numbers.32 Patricia MontureAngus writes that statistics about violence against Aboriginal women are necessarily deficient because “[f]ocusing on a moment in time or incidents of violence, abuse or racism, counting them – disguises the utter totality of the experience of violence in Aboriginal women’s lives.”33 This bolsters the need to think about victimization vis-à-vis Aboriginal women in a broad, comprehensive way instead of limiting the parameters of what constitutes “victimization.” The overrepresentation of Aboriginal peoples in the criminal justice (and particularly correctional) system must be understood as directly connected to processes of colonization put in motion by colonialism. Joyce Green defines colonialism as both an historic and a continuing wrong. A term that encompasses economic and political practices, it refers to the appropriation of the sovereignty and resources of a nation or nations, to the economic and political benefit of the colonizer. The practices by which colonialism is normalized and legitimated include racism, which  30  Juristat: Statistics Canada, Violent Victimization of Aboriginal Women in the Canadian Provinces, 2009 by S. Brennan (Ottawa: Minister of Industry, 2011), online: Statistics Canada http://www.statcan.gc.ca/pub/85-002x/2011001/article/11439-eng.htm. at 7. [Juristat: Brennan, Violent Victimization of Aboriginal Women] 31 Ibid. at 11. 32 Data from the Northwest Territories, Yukon, and Nunavut are excluded from these figures. For information and statistics about victimization in the territories, see Statistics Canada: Juristat, Criminal Victimization in the Territories by S. Perreault & T. Hotton Mahony (26 January 2012), online: Statistics Canada http://www.statcan.gc.ca/pub/85-002-x/2012001/article/11614-eng.htm. For information and statistics about victimization and offending in the territories, see Statistics Canada: Canadian Centre for Justice Statistics, Victimization and Offending in Canada’s Territories by S. de Léséleuc & J-A. Brzozowski (Ottawa: Minister of Industry, 2006), online: Statistics Canada http://www.statcan.gc.ca/pub/85f0033m/85f0033m2006011-eng.htm. at 12 for Aboriginal peoples. 33 Patricia Monture-Angus, Thunder in My Soul: A Mohawk Woman Speaks (Halifax: Fernwood Publishing, 1996) at 171. [Monture-Angus, Thunder in My Soul]  9 is encoded in law, policy, education and the political and popular culture of the colonizer.34 Linda Tuhiwai Smith explains colonialism in the context of imperialism, describing colonialism as a manifestation of imperialism.35 Tuhiwai Smith outlines that the interrelated “imperialism and colonialism brought complete disorder to colonized peoples, disconnecting them from their histories, their landscapes, their languages, their social relations and their own ways of thinking, feeling and interacting with the world.”36 She highlights how colonialism produced the “process of systemic fragmentation”37 that is felt by Aboriginal peoples through the “fragmentation of lands and cultures,” as well as through having their “identities regulated by laws and our languages and customs removed from our lives.” 38 Tuhiwai Smith describes this systemic fragmentation as “something we are recovering from.” 39 Imperialism and colonialism are together systems of domination and control, which Tuhiwai Smith describes as “the specific formations through which the West came to ‘see’, to ‘name’ and to ‘know’ indigenous communities.”40 Similarly, other writers understand colonialism as both an instrument of structural (institutional) oppression as well as cultural oppression, which often manifest in the same practices.41 For example, the residential school system in Canada functioned as both structural and cultural colonialism, affecting Aboriginal peoples “physically, emotionally, linguistically  34  Joyce Green, “Balancing Strategies: Aboriginal Women and Constitutional Rights in Canada” in Joyce Audry Green ed., Making Space for Indigenous Feminism (Black Point, N.S.: Fernwood Pub., 2007) 140 at 143. [Green, “Balancing Strategies”] 35 Linda Tuhiwai Smith, Decolonizing Methodologies: Research and Indigenous Peoples (London: Zed Books Ltd, 2008) at 21. [Tuhiwai Smith] 36 Ibid. at 28. 37 Ibid. 38 Ibid. at 97. 39 Ibid. 40 Ibid. at 60. 41 Denis C. Bracken, Lawrence Deane & Larry Morrissette, “Desistance and Social Marginalization: The Case of Canadian Aboriginal Offenders” (2009) 13(1) Theoretical Criminology 61 at 66. [Bracken, Deane & Morissette]  10 and culturally,” 42 and consisting of: “a three-part vision of education in the service of assimilation. It included, first, a justification for removing children from their communities and disrupting Aboriginal families; second, a precise pedagogy for re-socializing children in the schools; and third, schemes for integrating graduates into the non-Aboriginal world.”43 Tuhiwai Smith writes that these institutions “were designed to destroy every last remnant of alternative ways of knowing and living, to obliterate collective identities and memories and to impose a new order,” and had the effect to “silence (for ever in some cases) or to suppress the ways of knowing, and the languages for knowing, of many different indigenous peoples.”44 This coercive seeing, naming, and knowing continues to have innumerable devastating effects on Aboriginal communities in Canada, including the virtual extinction of many Aboriginal languages.45 In Canada, colonialism refers to the “long history of assault from Euro-Canadian political, economic, religious, and educational institutions on the social and cultural integrity of Aboriginal communities.”46 The Royal Commission on Aboriginal Peoples reports47 that several governmental policies directly produced the reverberating effects of colonialism. These policies include the Indian Act48 which established systematic discrimination between the legal rights of most Canadians and those of certain identified Aboriginal peoples (“status Indians”); the residential schools system which fragmented families, attempted to strip Aboriginal children of their cultures, and fostered widespread abuse and neglect of those children; and the relocation of 42  Tuhiwai Smith, supra note 35 at 69. Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples: Vol. I: Looking Forward, Looking Back (Ottawa: Royal Commission on Aboriginal Peoples, 1996), online: Indian and Northern Affairs Canada http://www.collectionscanada.gc.ca/webarchives/20071115053257/http://www.aincinac.gc.ca/ch/rcap/sg/sgmm_e.html. at http://www.collectionscanada.gc.ca/webarchives/20071211055641/http://www.aincinac.gc.ca/ch/rcap/sg/sg28_e.html#100 [RCAP, Report: Looking Forward, Looking Back] 44 Tuhiwai Smith, supra note 35 at 69. 45 Ibid. at 148. 46 John O’Neil, “Editorial: Aboriginal Health Governance” (2004) 1(1) Journal of Aboriginal Health 4 at 4. 47 RCAP, Report: Looking Forward, Looking Back, supra note 43. 48 Indian Act, R.S.C. 1985, c. I-5. [Indian Act] 43  11 Aboriginal communities which further alienated and disempowered peoples whose collective sense of home, culture, and spirituality is intimately tied to the land.49 These events have deeply entrenched intergenerational effects, both on 50 and off-reserve. 51 Joyce Green writes that colonialism has had a gendered impact on Aboriginal women, who “have suffered from colonialism similarly to Aboriginal men, but also in gender-specific ways, including the loss of culture, traditional territories, identity and status, children and culturally respected gender roles.” 52 The persisting, pervasive effects of governmental policies and laws pertaining to colonization and the assimilation of Aboriginal peoples have produced “the marginalization of Aboriginal peoples, which is reflected in high unemployment rates, low levels of education, low income and inadequate living conditions.”53 The overrepresentation of Aboriginal peoples in Canadian prisons must also be added to this list, as “[o]verincarceration is one of the consequences of the enduring fragmentation and loss of identity that Aboriginals experience due to colonization.”54 Overall, there is ample evidence that colonization has decimated Aboriginal communities, set in motion the conditions that render people vulnerable to criminalization and incarceration, and produced the overrepresentation of Aboriginal peoples in the system. I discuss colonization in greater depth in Chapter 2.  49  See generally RCAP, Report: Looking Forward, Looking Back, supra note 43. For a thorough and troubling article about the poverty and lack of infrastructure and resources on Aboriginal reserves, see Kazi Stastna, “Shacks and slop pails: Infrastructure crisis on Native reserves” CBC (26 November 2011), online: CBC http://www.cbc.ca/news/canada/story/2011/11/24/f-first-nations-infrastructure.html. 51 For an excellent, complex exploration of living in Canadian cities by Aboriginal peoples themselves (including challenges they experience, and how they challenge stereotypes), see CBC Doc Zone: 8th Fire, “8th Fire: Indigenous in the City” CBC, online: CBC http://www.cbc.ca/player/Shows/Shows/Doc+Zone/8th+Fire/Full+Episodes/ID/2186429161/. For essays on Aboriginal peoples reclaiming spaces, cultures, and collective identities in Canadian cities, see also Heather A. Howard & Craig Proulx, eds., Aboriginal Peoples in Canadian Cities: Transformations and Continuities (Waterloo: Wilfred Laurier University Press, 2011). 52 Green, “Balancing Strategies”, supra note 34 at 144. 53 Juristat: Brzozowski, Taylor-Butts & Johnson, Victimization and Offending, supra note 22 at 20 n 5. 54 Martel & Brassard, supra note 5 at 341. 50  12 1.3 Thesis pathways and research questions In the remainder of this chapter, I explain the methodology I used to identify the sentencing decisions I analyze in Chapters 3 and 4 of my thesis. I also provide background information about legislative and judicial sentencing strategies to attempt to redress the overrepresentation of Aboriginal peoples in prison. I outline the 1996 codification of the purpose and principles of sentencing, which includes the introduction of the s. 718.2(e) requirement that judges consider alternatives to imprisonment for Aboriginal peoples, and one particularly meaningful alternative – the conditional sentence order. I then discuss Gladue, which provides context and direction for s. 718.2(e). The Supreme Court of Canada recently affirmed and clarified Gladue in Ipeelee, which I discuss next. Finally, I provide background about conditional sentence orders, highlighting continued amendments to this sanction that restrict its availability. In Chapter 2, I discuss the feminist theory of the “victimization-criminalization continuum.” Broadly, the victimization-criminalization continuum suggests that women’s criminality should be understood as connected to their experiences of victimization, and that women’s responses to victimization can lead to criminalization.55 “Violence and victimization play a significant role in women’s trajectories of offending,”56 and Aboriginal women continue to be overrepresented in the criminal justice system as both victims and as offenders.57 The relationship between victimization and overrepresentation suggests the suitability of victimization-criminalization continuum as a lens to consider the judgments sentencing Aboriginal women offenders. I suggest that the victimization-criminalization continuum should  55  Gillian Balfour, “Re-Imagining a Feminist Criminology” (2006) 48(5) Canadian Journal of Criminology and Criminal Justice 735 at 742. [Balfour, “Re-Imagining a Feminist Criminology”] 56 Smita Vir Tyagi, “Victimization, Adversity and Survival in the Lives of Women Offenders: Implications for Social Policy and Correctional Practice” Canadian Woman Studies 25:1,2 (Winter 2006) 133 at 134. [Tyagi] 57 Elizabeth Adjin-Tettey, “Sentencing Aboriginal Offenders: Balancing Offenders’ Needs, the Interests of Victims and Society, and the Decolonization of Aboriginal Peoples” (2007) 19(1) 179 at 192. [Adjin-Tettey]  13 be framed in terms of how victimization marginalizes women and constrains the life options available to them, which may leave them vulnerable to criminalization. I situate these issues within the processes of colonization that ricochet through Aboriginal women’s lives. Colonization and the victimization-criminalization continuum lay the groundwork for my focus on how sentencing judges understand and use information about Aboriginal women’s histories of victimization within the Gladue analysis. In Chapters 3 and 4 I analyze decisions in which Aboriginal women are sentenced for offences for which conditional sentences are or were previously an available sanction. I focus on decisions in which conditional sentences are available because this sanction offers the most meaningful alternative to imprisonment to assist in ameliorating the overincarceration of Aboriginal peoples. My overarching interest in Chapters 3 and 4 is whether and how Aboriginal women’s histories of victimization and criminalization contribute to punitive sanctions that are judicially characterized as treatment-oriented sentences. The histories of victimization presented at the sentencing hearings of criminalized Aboriginal women are often quite extensive. This underscores the importance of thinking about how sentencing judges process these histories, and how they ultimately impact sentencing determinations. In Chapter 3, I explore how judicial understandings of victimization and criminalization are demonstrated in the reasoning, with particular attention to how these judicial discourses combine, or fail to combine, with judicial consideration of Gladue factors. In Chapter 4 I move to a discussion of how judicial understandings of victimization, criminalization, and Gladue influence sentencing outcomes and evaluate judicial discourses surrounding those orders. I focus particularly on a tendency to translate discourses about victimization, criminalization, and Gladue into a judicial approach that characterizes both  14 conditional sentence orders and prison sentences as healing-oriented. I discuss problems associated with this tendency, including the ample evidence that imprisonment exacerbates preexisting difficulties (mental health and otherwise) and engenders new problems. While I focus on discourses about rehabilitation in Chapter 4, I strive to inform my analysis with the caution that [f]raming the problem purely in terms of mental health issues…may deflect attention from the large-scale, and, to some extent, continuing assault on the identity and continuity of whole peoples. To these organized efforts to destroy Aboriginal cultures are added the corrosive effects of poverty and economic marginalization.58 Finally, in Chapter 5 I conclude and comment upon the role of the sentencing judge in the broader project to ameliorate the overrepresentation of Aboriginal peoples in prison. I highlight the importance of this role, and suggest that Ipeelee encourages judicial creativity to respond to overrepresentation. Because sentencing judges act after systemic issues have already failed Aboriginal women, I also point to the need for concurrent real change at the community level. 1.4 Methodology: Finding criminalized Aboriginal women in the judgments I am interested in how judges negotiate the task of sentencing Aboriginal women, particularly given ubiquitous histories of victimization and the s. 718.2(e) directive and Gladue requirement to consider the unique backgrounds of Aboriginal offenders. Within this context, I focus on cases in which conditional sentences were an available sentencing outcome because, as I explain below, they offer the most meaningful alternative to a sentence that would otherwise be a term of incarceration. The overrepresentation of Aboriginal women is accelerating59 concurrent with steady incursions into the conditional sentencing regime. Just when the need for alternatives  58  Laurence J. Kirmayer, Gregory M. Brass & Caroline L. Tait, “The Mental Health of Aboriginal Peoples: Transformations of Identity and Community” (2000) 45(7) The Canadian Journal of Psychiatry 607 at 609. 59 OCI, Annual Report 2009-2010, supra note 20 at 49.  15 to incarceration for Aboriginal women intensifies, amendments to the Criminal Code have eroded the availability of those alternatives. As Lindy Tuhiwai Smith writes, “research is not an innocent or distant academic exercise but an activity that has something at stake and that occurs in a set of political and social conditions.”60 This is the backdrop against which I have selected the cases for my study. To study the discourses in judicial reasoning for Chapters 3 and 4, I have consulted the largest body of cases I could reasonably amass – 91 decisions in total. Many provincial/territorial level sentencing judgments are not published,61 which limits the scope of research that may be conducted on sentencing practice.62 Due to my focus on judicial treatment of criminalized Aboriginal women’s histories of victimization and Gladue factors, I isolated sentencing decisions for Aboriginal women spanning between the date Gladue was decided (April 23, 1999) and those of my searches (May-July 2011). I have focused exclusively on sentencing decisions issued by courts of first instance. I will not discuss every case I consulted (although a complete list of cases appears in Appendix B63), as I have selected the cases most appropriate to a discussion of victimization and criminalization issues. These decisions include many in which conditional sentences feature prominently, although I also consider cases in which the only sanction discussed is incarceration in a federal institution. For example, in some judgments dealing with manslaughter, the judges did consider 60  Tuhiwai Smith, supra note 35 at 5. “[N]ot all trial and sentencing decisions are reported. For example, a judge will write a decision if he or she believes that the case is significant or will contribute in an important way to case law.” Balfour, “Falling Between the Cracks”, supra note 17 at 111. 62 Andrew Welsh & James R.P. Ogloff, “Progressive Reforms or Maintaining the Status Quo?: An Empirical Evaluation of the Judicial Consideration of Aboriginal Status in Sentencing Decisions” (2008) 50(4) Canadian Journal of Criminology and Criminal Justice 491 at 511. [Welsh & Ogloff] 63 See Appendix B for a chart of all of the 91 decisions I reviewed. In the chart, I have indicated the case name, the most serious offence for which that Aboriginal woman was being sentenced, whether a conditional sentence order was sought by counsel or independently considered by the judge, what sanction was ordered in the end, and whether that offender would still be eligible for a conditional sentence order on the same facts after the most recent (2012) amendments to the conditional sentencing regime (I introduce these amendments below). 61  16 conditional sentences, whereas in other manslaughter cases with facts closer to murder, the judges exclusively considered longer terms of federal imprisonment – I included both types of cases. The utility of conditional sentences (as alternatives to imprisonment) to respond to Gladue is undercut with each amended restriction (2007,64 and again in 2012,65 which I discuss below). As such, it is useful to also examine cases where conditional sentences are dismissed (outright, or after consideration), to further explore judicial discourses about the victimization and criminalization of Aboriginal women. However, because of my focus on judicial discourses about the histories of victimization of criminalized Aboriginal women, it is helpful to foreground conditional sentences because of their restorative justice orientation, to examine how judges connect histories of victimization and Gladue factors with this healing-oriented sanction. I performed extensive searches on CanLII, 66 and subsidiary although still thorough searches on Westlaw Canada67 and each of the provincial/territorial courthouse websites that post judgments (I consulted all provincial/territorial courthouse websites; some separately post decisions whereas others point to CanLII). I performed my first and most substantial searches on CanLII.68 On CanLII, I experimented with various search terms in an effort to maximize my returns, and with the greatest accuracy. I found that the most effective search terms (to supply the 64  For the Parliamentary stages of Bill C-9, see Canada Bill C-9, An Act to Amend the Criminal Code (Conditional Sentence of Imprisonment), 1st Sess., 39th Parl., 2007, online: Parliament of Canada http://www.parl.gc.ca/LegisInfo/BillDetails.aspx?Language=E&Mode=1&billId=2172003. [Canada Bill C-9 Stages] 65 For the stages of Bill C-10, see Canada Bill C-10, An Act to Enact the Justice for Victims of Terrorism Act and to Amend the State Immunity Act, the Criminal Code, the Controlled Drugs and Substances Act, the Corrections and Conditional Release Act, the Youth Criminal Justice Act, the Immigration and Refugee Protection Act and other Acts (Safe Streets and Communities Act), 1st Sess., 41st Parl., 2012, online: Parliament of Canada http://www.parl.gc.ca/LegisInfo/BillDetails.aspx?Language=E&Mode=1&billId=5120829&View=6. [Canada Bill C-10 Stages] 66 CanLII is the online jurisprudence database supplied by the Canadian Legal Information Institute. Canadian Legal Information Institute, CanLII, online: CanLII http://www.canlii.org/en/. 67 Westlaw Canada, online: Westlaw Canada http://www.westlawcanada.com/. 68 I concentrated on CanLII because I support its free, open informational access distribution, I believe it to be comprehensive in its database, and its search function is easy to use.  17 most cases, and catching the most judgments sentencing Aboriginal women) were “718.2 AND woman OR female OR Ms.” (without quotation marks). The search term “718.2” was appropriate because it isolates sentencing decisions, and should catch Aboriginal offenders because it includes s. 718.2(e) (I omitted the “(e)” to catch the judgments that listed the secondary principles of sentencing in sequence such that s. 718.2 appeared separate from the reference to subsection “e”). I chose the attached search terms “AND woman OR female OR Ms.” because I needed to reduce the total returns in a way that maximized my potential to recover Aboriginal women offenders. I found these terms useful because within the CanLII searching options, this search should return all judgments (that reference s. 718.2) containing any of the words “woman” or “female” or “Ms.” – many judges at refer to the offenders as “Ms. [Last Name]” at some point in the judgment, and I hoped to turn up any remaining cases lacking this reference with “woman” or “female” (such as “she is a [X age] woman,” or “First Nations woman,” or “female offender”). I initially performed this search in two installments: once restricting the date range from 1999 (Gladue) to 2007 (when the 2007 s. 742.1 amendments entered into force), and a second search changing the date range to 2007 until 2011 (current to the year I performed the searches). In retrospect, performing these searches in two installments was unnecessary, although it would not have impacted the results returned (it simply meant I retrieved duplicates for 2007). Where appropriate, I also reference further s. 742.1 amendments that entered into force in 2012 after the writing of this thesis, but my methodological decisions preceded this second wave of amendments. I read these judgments to identify which involved the sentencing of Aboriginal women offenders. This involved clicking on every returned item. For some cases, the process was fast, such as where it was clear from the offender’s name in the headnote that the offender was a  18 woman. For other cases, I read further, looking for such cues as pronoun use. Once I identified the cases sentencing women, I then ascertained which were Aboriginal women. To this end, I first searched within each judgment (using “control + F”) using the following terms in sequence: Aboriginal, Gladue, nation, band, and reserve. Often the retrieval of one of these terms would clarify that the offender was an Aboriginal woman, making the process straightforward. Sometimes none of these terms would produce any instances in the judgment – where these searches were unsuccessful, I read/skimmed the entire decision. It was important to conduct these closer readings where it was unclear whether the woman offender was Aboriginal because this directly speaks to the issue of judges failing to engage in a thoroughgoing Gladue analysis. For the more elusive cases, I tried to be attuned to the various cues that might be of assistance. For example, some cases nowhere clearly stated that the offender was Aboriginal, but did make references that on closer read caused me to suspect she was (such as references to her relationship with community Elders, or referencing the First Nations community in which she was raised). Throughout this process, I eliminated any appeals (to retain my concentration on courts of first instance) and decisions sentencing youth. After these initial, systematic CanLII searches, I performed supplementary CanLII searches, in the hope of flushing out any remaining judgments sentencing Aboriginal women. I chose more restrictive search terms (to reduce the results returned), and my search terms were the following (within dates restricted between 1999 and 2011): “aboriginal woman” (with quotes); “first nations woman” (with quotes); EXACT(woman of Aboriginal descent); sentenc AND she AND EXACT(band) NOT husband; 742.1 AND aboriginal OR “first nation” OR EXACT(nation) OR EXACT(band); 742.1 “aboriginal woman”; 718.2(e) aboriginal AND she. The rest of the process mirrored the above explanation.  19 To be as thorough as possible, I performed further searches on other databases. I followed largely the same processes as described above in these further searches, although using different search terms. To bolster my CanLII searches using the courthouse websites, I visited each provincial and territorial courthouse website to search the judgments posted (although I only actively searched a few databases, because often they just referred to CanLII). For the courthouse searches I did perform, I used only the search term “718.2” (without quotes) and restricted the date range from 1999 to 2011. For results returned, I used the same process as described above to identify judgments sentencing Aboriginal women. Finally, I turned to Westlaw, a commercial database. On Westlaw, I was less ambitious in my ambit (because I had already reached diminishing returns), which meant that I used more restrictive searches to limit results. I performed searches using the following search terms: aboriginal “first nation” & 718.2(e) & 742.1 (although I abandoned this search because it returned many appealed cases); and aboriginal "nation" "first nation" & 718.2(e) & 742.1 (this time using several searches each limited to the following levels of court: provincial; territorial; superior; queen’s bench; supreme); aboriginal "nation" "first nation" & 718.2(e) & 742.1 (limited to the territorial level). Then I performed two searches using the “find in headnote” field, using these search terms: aboriginal woman, and first nation woman. I discerned which judgments sentenced Aboriginal women using the same process as in my first CanLII searches. Across all databases and all searches, in total I canvassed 5639 cases (including the inevitable duplicates returned) to ascertain those sentencing an Aboriginal woman. After determining which cases conform to these parameters (and eliminating duplicates by consolidating lists), I developed a body of case law amounting to a total of 91 decisions69 spanning from the date Gladue was decided (April 23, 1999), through the date the 2007 69  See chart at Appendix B.  20 conditional sentencing amendments entered into force (December 1, 2007), and until July 2011 (the outer end of the May-July 2011 period I conducted the searches). After isolating the decisions sentencing Aboriginal women, I further parsed the decisions, endeavouring to select those in which conditional sentences were actively discussed among the sentencing options or may have been available given the offence in question. Regarding the latter, as explained above, I included cases in which conditional sentences were not considered (but could have been on different facts). In addition, I did not want to exclusively isolate judgments where conditional sentences were actively discussed because I wanted to include cases from which the 2007 amendments would remove that alternative where it may otherwise have been available before the amendments, as well as cases that perhaps (per superficially explored Gladue factors) should have considered conditional sentences. The cases I have selected provide the backbone of the discussion in Chapters 3 and 4 below. To analyze these cases, I used a qualitative approach. First, I read the cases in depth, making note of emergent themes. I coded for these themes by using consistent shorthand to denote repeated instances of related issues. Generally, the issues I coded for included judicial comments and discourses about the following: gendered violence; women’s histories of victimization and how judges understand their pathways into criminalization (including judicial usage of pre-sentence reports (PSRs)); Gladue analyses; community issues (such as available resources within, and community support or resistance to community sentences); risk factors (including past compliance/non-compliance with court orders); the 2007 conditional sentencing amendments; and framing sentences (both prison and conditional sentences) as healing-oriented. I targeted my subsequent readings and review of the cases toward these identified themes.  21 1.5 Aboriginal women along the victimization-criminalization continuum Aboriginal women experiencing victimization are at heightened vulnerability to criminalization because their marginalization already narrows their options. Justice Arbour has identified systemic limitations experienced by criminalized Aboriginal women, who generally “enter the prison system at a younger age, have lower levels of education and employment, deal with greater problems of substance abuse which in turn plays a greater role in their offending, and experience higher incidences of physical and sexual abuse.”70 It is useful to think about the sentencing of Aboriginal women with reference to the victimization-criminalization continuum because of the disproportionately extensive histories of victimization many Aboriginal women offenders experience. Additionally, because these histories must be presented to courts sentencing Aboriginal offenders in the form of Gladue factors, it becomes important to understand the interplay between how judges discuss and use Aboriginal women offenders’ histories of victimization and their Gladue factors (in terms of whether/how the goals of Gladue are furthered). I draw on the victimization-criminalization continuum in this context, with a view to understanding how sentencing judges respond to Aboriginal women offenders’ backgrounds and needs when ordering sanctions. Due to the interwoven issues comprising the victimization-criminalization continuum (about which I elaborate in Chapter 2), I use the term “victimization” expansively throughout this thesis. As I use it, “victimization” often describes experiences of violence, but also encompasses other difficulties which frequently arise through women’s modes of dealing with abuse (whether through escapism, numbing, or attempting to regain control), such as (but not  70  Commission of Inquiry into Certain Events at the Prison for Women in Kingston, Report of the Commission of Inquiry into Certain Events at the Prison for Women in Kingston (Commissioner: Arbour J.) (Ottawa: Public Works and Government Services Canada, 1996), online: Justice Behind the Walls http://www.justicebehindthewalls.net/resources/arbour_report/arbour_rpt.htm. at 220. [Arbour Inquiry Report]  22 limited to) through substance abuse. I have chosen to adopt this wide-ranging approach to the term victimization because I believe these issues are so interlaced they are impossible to disentangle, and it would be artificial to consider them in isolation. Further, it would not reflect the judicial reasoning which takes the broader view. It is particularly necessary to employ this elastic definition of victimization for Aboriginal women offenders. Monture-Angus explains that as a Mohawk woman “[m]y experience of violence transcends my gender and also includes my experience of the state,”71 situating Aboriginal women’s experiences of violence within colonization. She writes “[t]he general definition of violence against women” (male violence) “is too narrow to capture all of the experiences of violence that Aboriginal women face.”72 Monture-Angus considers prevailing definitions of violence against women “relied on by dominant institutions, structures and groups” (including feminist bodies) as themselves “colonial” because such definitions omit the larger picture of colonization. 73 She explains that these dominant definitions preclude Aboriginal women’s own representations of the violence they experience.74 In an effort to accommodate differential (but interlocking) impacts of colonization (including Aboriginal women’s reactions to interpersonal violence and the violence of colonization), I expand “victimization” beyond direct experiences of violence when I discuss judicial discourses in Chapters 3 and 4. For example, substance abuse often features in the cases I examine in Chapters 3 and 4, consistent with the research that “[s]ubstance abuse has been linked to women’s experiences of  71  Monture-Angus, Thunder in My Soul, supra note 33 at 171. Ibid. 73 Ibid. 74 Ibid. 72  23 victimization and violence from abusive partners.”75 Connected to colonization, the issue of substance abuse is of particular relevance to criminalized Aboriginal women.76 1.6 Codifying the specificity of Aboriginal peoples at sentencing Prior to 1996, the Criminal Code of Canada77 (Code) specified sentencing maxima and options, but the principles of sentencing were largely judge-made. Parliament radically changed the sentencing regime with amendments to the Code that came into force in 1996.78 These amendments constitute “the first codification and significant reform of sentencing principles in the history of Canadian criminal law.”79 Aspects of these amendments signal Parliamentary intention to reduce reliance on imprisonment for all offenders. Section 718.2(d), provides that “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances.”80 Section 718.2(e) directs that sentencing judges must consider “all available sanctions other than imprisonment that are reasonable in the circumstances,” “for all offenders,” and “with particular attention to the circumstances of aboriginal offenders.”81 The conditional sentence order was introduced by section 742.1, which gives meaning to the requirement that judges look to alternatives for imprisonment by allowing judges to order offenders to serve sentences that would otherwise be prison terms in the community (where appropriate). I discuss conditional sentences below. First, I turn to s. 718.2(e), which is central to my thesis because it explicitly requires judges to consider the circumstances of Aboriginal offenders. 75  Tyagi, supra note 56 at 134. See Colleen Anne Dell & Roger Boe, “Research Reports: An Examination of Aboriginal and Caucasian Women Offender Risk and Needs Factors” (December 2000), online: Research Branch, Correctional Service of Canada http://www.csc-scc.gc.ca/text/pblct/forum/e132/e132ind-eng.shtml. at 10. See also Juristat: Brzozowski, TaylorButts & Johnson, Victimization and Offending, supra note 22 at 13. 77 Code, supra note 14. 78 Allan Manson et al., Sentencing and Penal Policy in Canada: Cases, Materials, and Commentary 2d ed. (Toronto: Emond Montgomery Publications, 2008) at 481. [Manson et al.] 79 Gladue, supra note 15 at para. 39. 80 Code, supra note 14 at s. 718.2(d). 81 Ibid. at s. 718.2(e). 76  24 1.7 The purpose and principles of sentencing: An overview The purpose and principles of sentencing are set out in s. 718 of the Code. The Code sets out the main purpose of sentencing: “to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions.”82 Section 718 lists that these sanctions must incorporate one or multiple of these itemized objectives: (a) denunciation; (b) deterrence (general and specific); (c) separation from society; (d) rehabilitation; (e) reparations for harm (to the victim(s) or larger community); (f) responsibility for the harm done. 83 Denunciation signifies societal “condemnation of the offender’s conduct,”84 and often accompanies deterrence (the need to discourage future such conduct) in judicial reasoning. While imprisonment is commonly associated with the promotion of deterrence (both in the public consciousness and the courts), the Supreme Court of Canada has held that “[t]he empirical evidence suggests that the deterrent effect of incarceration is uncertain,” further suggesting that conditional sentences can operate to deter with punitive sanctions and public awareness.85 Rehabilitation is considered more restorative justice-oriented for its basis in and prioritization of healing and personal/behavioural change and emphasis on reintegration into society. 86 This is often in tension with denunciation and deterrence because “[r]estorative sentencing goals do not usually correlate with the use of prison as a sanction.”87 Any friction among the purposes of sentencing may be written into the sentencing process, reflecting that [s]entencing, like the criminal trial process itself, has often been understood as a conflict between the interests of the state (as expressed through the aims of 82  Ibid. at s. 718. Ibid. at ss. 718(a)-(f). 84 R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5 at para. 102. [Proulx] 85 Ibid. at para. 107. 86 Gladue, supra note 15 at para. 43. 87 Ibid. 83  25 separation, deterrence, and denunciation) and the interests of the individual offender (as expressed through the aim of rehabilitation).88 However, the interests of the state and those of the individual should not be understood as wholly polarized. The purposes of denunciation, deterrence, and rehabilitation should be interpreted as interconnected processes, because most prisoners will eventually return to the community. This understanding is consistent with the restorative justice paradigm.89 “Canada has never given primacy to any one specific sentencing purpose,” affording judges the discretion and responsibility to determine which should be foregrounded depending on each case.90 This is consistent with the inherently individualized process of sentencing.91 While some decisions within my research involve factors that militate toward a sentencing response guided by denunciation and deterrence over a more rehabilitative approach, other judgments emphasize the rehabilitation of the offender as the overriding concern. Paradoxically and problematically, the latter sometimes still produces a punitive sanction, albeit under the guise of “healing.” I use the terms “healing” and “rehabilitation” interchangeably, as seems consistent with the reading and usage of both terms in Gladue.92 Section 718.1 requires sentences to be proportionate to both the seriousness of the offence and the degree of responsibility of the offender.93 Proportionality is the fundamental principle of sentencing, and is always engaged in sentencing (however judges resolve the remaining purpose and principles of sentencing).94 In R. v. Nasogaluak,95 the SCC held that  88  Ibid. at para. 42. Howard Zehr, The Little Book of Restorative Justice (Intercourse, PA: Good Books, 2002) at 59. [Zehr] 90 Anthony N. Doob & Cheryl Marie Webster, “Countering Punitiveness: Understanding Stability in Canada’s Imprisonment Rate” (2006) 40(2) Law & Society Review 325 at 338. 91 R. v. M.(C.A.), [1996] 1 S.C.R. 500 at para. 92. [M.(C.A.)] 92 See for example Gladue, supra note 15 at para. 43. Here a substantial component of restorative justice is described as the attempt “to rehabilitate or heal the offender.” 93 Code, supra note 14 at s. 718.1. 94 Ipeelee, supra note 16 at para. 37. See also R. v. Arcand, 2010 ABCA 363 at paras. 47-9. [Arcand] 89  26 proportionality predates its codification in the 1996 sentencing reforms, rooted in a “long history as a guiding principle in sentencing.”96 In an Alberta Court of Appeal decision thoroughly detailing the sentencing regime in Canada, Fraser C.J.A., Côté and Watson JJ.A. write for the majority that Parliament positioned proportionality as the required, overarching principle to propel the determination of sentence because it provides a “common standard” “to guide the exercise of sentencing discretion.”97 This prevents the “arbitrary application of state power,” causing the “blunt tool of punishment” to be “valid” and “morally acceptable.”98 The “secondary principles”99 in s. 718.2 combine to bolster the proportionality principle and form part of the proportionality analysis.100 Section 718.2(b) is the parity principle, which implicates the degree of moral blameworthiness of the offender and is necessary to the proportionality analysis.101 It directs that sentences should be similar for similar offenders and similar offence circumstances.102 Sections 718.2(d) and (e) should be read together and jointly constitute the restraint principle.103 Section 718.2(d) states that less restrictive sanctions should be ordered where appropriate, and s. 718.2(e) specifies that, as above, imprisonment should be ordered as a last resort where reasonable, and particularly for Aboriginal offenders.104 Both of these restraint and restorative justice-oriented principles are inherent in and consistent with the proportionality principle.105 The Justices for the majority in Arcand hold that “[t]he object of the sentencing exercise is to draw on all sentencing principles in determining a just and appropriate  95  R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206. Ibid. at para. 41. 97 Arcand, supra note 94 at para. 53. 98 Ibid. at para. 54. 99 Ibid. at para. 56. 100 Ibid. at para. 61. 101 Ibid. 102 Code, supra note 14 at s. 718.2(b). 103 Arcand, supra note 94 at para. 62. 104 Code, supra note 14 at ss. 718.2(d), (e). 105 Arcand, supra note 94 at para. 62. 96  27 sentence which reflects the gravity of the offence and the degree of moral blameworthiness of the offender.”106 These principles operate within and guide s. 718.3, which ensures judicial discretion on sentencing within any restrictions on available sanctions for the specific offence.107 The purpose and principles of sentencing operate in conjunction with one another in an “integrated framework.”108 The objectives of sentencing listed within the purpose of sentencing must conform to the proportionality principle.109 Sentencing judges determine how to weigh the various objectives in relation to the gravity of the offence and the offender’s degree of responsibility (proportionality). 110 Effectively, the objectives and secondary principles of sentencing inform sentencing determinations, but in service of the proportionality principle.111 Of the various sentencing principles, s. 718.2(e) is critical to my thesis. I will also periodically refer to how aggravating and mitigating factors are presented in the judgments. Judges must adjust sentences by accounting for aggravating or mitigating circumstances (further sentencing principles) arising from the offence or specific to the offender per s. 718.2(a) of the Code.112 While various aggravating factors are (non-exhaustively) listed in the Code, there are no itemized mitigating factors.113 Instead, mitigating factors (and additional aggravating factors) develop through judge-made law. R. v. Wells114 states that Gladue factors “are mitigating in nature,”115 and this formulation is affirmed in Ipeelee.116 Gladue explains that “[a]ggravating  106  Ibid. at para. 63. Code, supra note 14 at s. 718.3. 108 Arcand, supra note 94 at para. 56. 109 Ibid. at para. 64. 110 Ibid. 111 Ibid. at para. 65. 112 Code, supra note 14 at s. 718.2(a). 113 Manson et al., supra note 78 at 117. Allan Manson identifies various factors that frequently operate to mitigate, including being a first-time offender, pleading guilty and demonstrating remorse, and engaging in rehabilitative efforts after the offence. Manson et al., supra note 78 at 120-30. 114 R. v. Wells, [2000] 1 S.C.R. 207. 115 Ibid. at para. 38. 116 See Ipeelee, supra note 16 at para. 73. 107  28 circumstances will obviously increase the need for denunciation and deterrence,”117 which then has potential implications for judicial decisions about the severity of custodial sanctions ordered in terms of duration and the form of sanction. While various factors are stipulated as aggravating in s. 718.2, the section is expansive and affords much judicial discretion.118 None of these factors are gender-specific, although they may have gendered effects – in 11 judgments within my research in which the offence involves violence against the Aboriginal woman’s partner, judges find this circumstance to be aggravating as required by s. 718.2(a)(ii),119 despite extensive histories of intimate violence that the women experienced both within that relationship and elsewhere.120 It must also be remembered that much of Aboriginal women’s violence occurs in this domestic context,121 so they may be disproportionately subjected to this aggravating factor. As the Code deems that partner violence “shall”122 be aggravating, this subsection is prescriptive and not permissive, which may create harsher penalties for Aboriginal women in this circumstance if this contributes to the perceived need for greater denunciation and deterrence at the expense of mitigation through Gladue factors. The specific issue of whether partner violence should be mandated as aggravating by the Code in cases where women offenders become criminalized for their own violence after 117  Gladue, supra note 15 at para. 115. Code, supra note 14 at s. 718.2. 119 Ibid. at s. 718.2(a)(ii). [s. 718.2(a)(ii)] 120 Offending within a spousal relationship is found to be aggravating in the following judgments from my research: R. v. Gilpin, 2002 BCSC 1876 at para. 11.; R. v. Fisher, 2004 CanLII 10497 (ON SC)., [2004] O.T.C. 123, 60 W.C.B. (2d) 404 at para. 18.; R. v. Asp (R. v. C.M.A.), 2005 YKSC 58 at para. 45.; R. v. Kahypeasewat (R. v. V.K.), 2006 SKPC 79 at para. 72.; R. v. Heavenfire, 2006 ABPC 228 at para. 19.; R. v. Diamond, 2006 QCCQ 2552 at para. 10.; R. v. S.C.M., 2008 ABPC 214 at para. 12.; R. v. Neshinapaise, 2008 CarswellOnt 3725 (ONCJ) (WLeC), at para. 18.; R. v. Petawabano, 2008 QCCQ 6141 at para. 31.; R. v. Small Eyes and Hunt, 2008 ABPC 300 at para. 25.; R. v. Tippeneskum, 2011 ONCJ 219 at para. 21. 121 Joycelyn M. Pollock and Sareta M. Davis write that “[i]t is clear that violence by women is very likely to take place in the domestic sphere,” [Joycelyn M. Pollock & Sareta M. Davis, “The Continuing Myth of the Violent Female Offender” (2005) 30(1) Criminal Justice Review 5 at 22. [Pollock & Davis, “The Continuing Myth”]] and Aboriginal women are at a higher risk of violent victimization than non-Aboriginal women, including the most severe forms of intimate violence. [Juristat: Brzozowski, Taylor-Butts & Johnson, Victimization and Offending, supra note 22 at 5-6.]. 122 s. 718.2(a)(ii). 118  29 surviving extensive violence within that relationship (or within similar relationships) exceeds the scope of my thesis but would be a productive topic for future research. For now, it is worth noting that the violence committed by Aboriginal women often arises against a distinct background of victimization,123 demanding a contextual understanding of both ends of this spectrum of abuse to enable sensitive sentencing legislation and judicial reasoning. 1.8 R. v. Gladue: Fleshing out section 718.2(e) In its 1999 decision R. v. Gladue,124 the Supreme Court of Canada (SCC) gave direction to judges sentencing Aboriginal offenders in the post-1996 regime by discussing the context of and Parliamentary intention behind s. 718.2(e) and explaining how judges should engage in the analysis required by this provision. Delivered by Justices Cory and Iacobucci in a unanimous judgment, Gladue explains that s. 718.2(e) was intended in part to ameliorate the overrepresentation of Aboriginal peoples in the criminal justice system, and particularly its prisons. Cory and Iacobucci JJ. decried this overrepresentation as a national “crisis.”125 Broadly, they held that the Parliamentary intention motivating s. 718.2(e) was primarily to reduce overreliance on incarceration as a sanction, expand usage of restorative justice principles to guide sentencing, and to promote consideration of how to better design sentences that will be more appropriate for and meaningful to Aboriginal offenders.126 Cory and Iacobucci JJ. held that while the 1996 sentencing amendments signify a general amplification of restorative justice principles, restorative justice is particularly critical in the sentencing of Aboriginal offenders because “most traditional aboriginal conceptions of sentencing place a primary emphasis upon the ideals of restorative justice. This tradition is 123  See generally Juristat: Brennan, Violent Victimization of Aboriginal Women, supra note 30 at 7. Gladue, supra note 15. 125 Ibid. at para. 64. 126 Ibid. at para. 48. 124  30 extremely important to the analysis under s. 718.2(e).”127 Rooted in “a model of healing rather than of punishing,”128 restorative justice presents a different paradigm for sentencing.129 This paradigm implicates different goals because it is relationships-oriented, expanding the view of justice processes to include interconnections between the offender, the victim(s), and the broader community, and striving to balance and respond to each parties’ needs through the sanction ordered.130 Often sanctions consistent with restorative justice are community-based.131 Cory and Iacobucci JJ. explain that community-based sanctions are important for Aboriginal offenders because they “coincide with the aboriginal concept of sentencing and the needs of aboriginal people and communities.”132 Gladue directs sentencing judges to undertake the process of sentencing aboriginal offenders differently, in order to endeavour to achieve a truly fit and proper sentence in the particular case.”133 Cory and Iacobucci JJ. explain that this different mode of sentencing arises from a necessary change in the “method of analysis”134 because s. 718.2(e) “suggests that there is something different about aboriginal offenders which may specifically make imprisonment a less  127  Ibid. at para. 70. Tuhiwai Smith, supra note 35 at 155. 129 Whether the period following the 1996 sentencing amendments constituted a wholesale “paradigm shift from punitive to restorative justice” has been disputed, although the 1996 amendments certainly substantially amplify the role of restorative justice in sentencing. [Kent Roach, “Changing Punishment at the Turn of the Century: Restorative Justice on the Rise” (2000) 42(3) Canadian Journal of Criminology 249 at 251-2. [Roach]] 130 Gladue, supra note 15 at para. 71. This process of attempting to repair the harmony crime ruptures engages consideration of the factors contributing to the offence and the harms experienced by the victim(s), requiring the offender to demonstrate a sense of responsibility [Zehr, supra note 89 at 59.] and to make reparations to the victim(s) and the community [Proulx, supra note 84 at para. 18.]. 131 Gladue, supra note 15 at para. 43. Restorative justice inspired community-based sentences will not always be appropriate, such as where Aboriginal women from small centres are complainants in intimate violence cases and may feel unsafe or revictimized if their attackers serve their sentences in the community. See e.g. Angela Cameron, “Stopping the Violence: Canadian Feminist Debates on Restorative Justice and Intimate Violence” (2006) 10(1) Theoretical Criminology 49. See also Emma Cunliffe & Angela Cameron, “Writing the Circle: Judicially Convened Sentencing Circles and the Textual Organization of Criminal Justice” (2007) 19(1) Canadian Journal of Women and the Law 1. 132 Gladue, supra note 15 at para. 74. 133 Ibid. at para. 33. 134 Ibid. 128  31 appropriate or less useful sanction.”135 Gladue finds that Aboriginal peoples may be “more adversely affected by incarceration and less likely to be ‘rehabilitated’ thereby, because the internment milieu is often culturally inappropriate and regrettably discrimination towards them is so often rampant in penal institutions.”136 As a result, judges must be apprised of the options available in or outside of the offender’s community that could function as alternatives to imprisonment.137 This observation about the inappropriateness of incarceration for Aboriginal peoples is borne out by research which finds that Aboriginal peoples are assessed as having higher needs in prison,138 which translates to their being assessed as presenting higher risk (to the institution, and/or of reoffence), often grounding a harsher experience of imprisonment due to institutional decisions such as isolation through segregation or being classified at a higher level of security139 (which imports stricter controls and supervision).140 Cory and Iacobucci JJ. held that in the judicial search for alternatives to imprisonment for Aboriginal peoples, even if community support is not available, every effort should be made in appropriate circumstances to find a sensitive and helpful alternative. For all purposes, the term “community” must be defined broadly so as to include any network of support and interaction that might be available in an urban centre. At the same time, the residence of the aboriginal offender in an urban centre that lacks  135  Ibid. at para. 37. Ibid. at para. 68. 137 Ibid. at para. 84. 138 See for example Juristat, Perreault, The Incarceration of Aboriginal People, supra note 23 at 15-6. 139 Mimicking the overrepresentation of Aboriginal peoples in the system, Aboriginal peoples are disproportionately designated within the maximum-security classification level, [Patricia Monture-Angus, “Women and Risk: Aboriginal Women, Colonialism, and Correctional Practice” Canadian Woman Studies 19:1,2 (Spring/Summer 1999) 24 at 26. [Monture-Angus, “Women and Risk”]] “because of the violence they experience outside the prison walls, and because of their resistance strategies inside them.” [Allison Campbell, “Federally Sentenced Women and Security Classification” (July 2006), online: Prison Justice http://www.prisonjustice.ca/starkravenarticles/women_max_security_0706.html. at 5.] 140 For a thorough discussion of how assessed needs are transmuted into indicators of risk, see generally Paula Maurutto & Kelly Hannah-Moffat, “Assembling Risk and the Restructuring of Penal Control” (2006) 46 British Journal of Criminology 438. [Maurutto & Hannah-Moffat, “Assembling Risk”] 136  32 any network of support does not relieve the sentencing judge of the obligation to try to find an alternative to imprisonment.141 Gladue directs that the s. 718.2(e) analysis involves both consideration of systemic and background factors related to each Aboriginal offender coming before the courts, and how the offender’s Aboriginal heritage or connection should influence the form of sanction. 142 Specifically, judges must determine whether the sanction would be meaningful (in terms of denunciation and deterrence) to the offender’s community, often implicating restorative sentencing principles.143 Recognizing that Aboriginal communities and their customs, traditions, and beliefs are not monolithic but vary across nations, Gladue finds that sentencing concepts are often inappropriate to Aboriginal offenders.144 Justices Cory and Iacobucci direct that it is particularly important for judges to structure community-based sentences for less serious or non-violent offences.145 For more serious or violent offences, sentences will be more similar in type and duration for Aboriginal and nonAboriginal offenders, as is more likely to be consistent with both Aboriginal and non-Aboriginal conceptions of sentencing.146 While “[t]here is no single test that a judge can apply,”147 much as all sentencing must be individualized, the sentencing of Aboriginal peoples engages a number of questions specific to each case: For this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code? What understanding of criminal sanctions is held by the community? What is the nature of the relationship between the offender and his or her community? What combination of systemic or background factors contributed to this particular offender coming before the courts for this particular offence? How has the offender who is being sentenced been affected by, for example, substance abuse in 141  Gladue, supra note 15 at para. 92. Ibid. at para. 66. 143 Ibid. at para. 69. 144 Ibid. at para. 73. 145 Ibid. at para. 74. 146 Ibid. at paras. 78-9. 147 Ibid. at para. 81. 142  33 the community, or poverty, or overt racism, or family or community breakdown? Would imprisonment effectively serve to deter or denounce crime in a sense that would be significant to the offender and community, or are crime prevention and other goals better achieved through healing? What sentencing options present themselves in these circumstances?148 To answer these questions, judges must take judicial notice of the relevant systemic or background factors involved, but also may require evidence about the offender’s Aboriginal circumstances, at minimum through the pre-sentence report (PSR).149 Ultimately, Cory and Iacobucci JJ. characterize the duty of a judge sentencing an Aboriginal offender as being engaged in a process of substantive equality: “ the fundamental purpose of s. 718.2(e) is to treat aboriginal offenders fairly by taking into account their difference.”150 1.8.1 R. v. Ipeelee: Underscoring and bolstering Gladue The SCC recently delivered a judgment strongly affirming Gladue and adding some clarity. Decided March 23, 2012, R. v. Ipeelee 151 addresses two appeals concerning male Aboriginal offenders designated long-term offenders involving breaches of their long-term supervision orders. Writing for the majority (Rothstein J. dissented in part), LeBel J. notes that “the overrepresentation and alienation of Aboriginal peoples in the criminal justice system has only worsened”152 since the 1996 amendments, and references that “[c]ourts have, at times, been hesitant to take judicial notice of the systemic and background factors affecting Aboriginal people in Canadian society.”153 LeBel J. reiterates Gladue’s directive to judges, underscoring that to provide the necessary context to sentence,  148  Ibid. at para. 80. Ibid. at paras. 83-4. 150 Ibid. at para. 87. 151 Ipeelee, supra note 16. 152 Ibid. at para. 62. 153 Ibid. 149  34 courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples.154 More rigorous deployment of judicial notice may also assist with one of the two problems Ipeelee identifies with the jurisprudence post-Gladue that have “thwart[ed] what was originally envisioned by Gladue”155: “some cases erroneously suggest that an offender must establish a causal link between background factors and the commission of the current offence before being entitled to have those matters considered by the sentencing judge.” 156 This incorrect interpretation of Gladue functions as an “evidentiary burden,”157 which goes much farther than the Gladue directive to “give attention to the unique background and systemic factors which may have played a part in bringing the particular offender before the courts.”158 This practice is inappropriate because a causal link will be prohibitively difficult for Aboriginal offenders to disentangle and establish given the complexities and interrelationships within the continuing effects of colonization.159 LeBel J. adds that it does not even make sense to demand a causal connection because Gladue factors “do not operate as an excuse or justification for the criminal conduct,” but instead contextualize the judge’s reasoning.160 The second problem Ipeelee discerns in the post-Gladue jurisprudence is the “irregular and uncertain application of the Gladue principles to sentencing decisions for serious or violent offences.” 161 LeBel J. explains Gladue’s reference that sentences will be more similar for Aboriginal and non-Aboriginal offenders the more serious or violent the offence has led to 154  Ibid. at para. 60. Ibid. at para. 80. 156 Ibid. at para. 81. 157 Ibid. at para. 82. 158 Gladue, supra note 15 at para. 69. 159 Ipeelee, supra note 16 at para. 83. 160 Ibid. 161 Ibid. at para. 84. 155  35 “unwarranted emphasis” on this proposition, prompting “[n]umerous courts” to “erroneously [interpret] this generalization as an indication that the Gladue principles do not apply to serious offences”162 This is problematic because what constitutes a “serious” offence is not defined in the Code,163 and it undermines the overriding Gladue direction that judges must consider the background and circumstances of each Aboriginal offender.164 Judges have a duty to apply s. 718.2(e),165 and to fail to apply Gladue when sentencing an Aboriginal offender “runs afoul of this statutory obligation,” producing “a sentence that was not fit and was not consistent with the fundamental principle of proportionality.”166 Therefore, it is not sufficient for sentencing judges to detail the personal history of an Aboriginal offender but to then fail “to consider whether and how that history ought to impact on her sentencing decision.”167 I demonstrate in Chapter 3 that both of the errors Ipeelee finds in the post-Gladue jurisprudence feature in the cases in my research. Ipeelee provides helpful comments about how Gladue factors conform to the overarching sentencing regime (instead of presenting a deviation): Canadian criminal law is based on the premise that criminal liability only follows from voluntary conduct. Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options for positive development. While this rarely — if ever — attains a level where one could properly say that their actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moral culpability.168 Because these systemic issues may cause Aboriginal peoples to have diminished moral culpability (which strikes at the heart of the foremost principle of sentencing, proportionality, in  162  Ibid. Ibid. at para. 86. 164 Ibid. at para. 85. 165 Ibid. 166 Ibid. at para. 87. 167 Ibid. at para. 95. 168 Ibid. at para. 73. 163  36 terms of the degree of responsibility of the offender), Gladue factors are framed as mitigating.169 Moreover, following Gladue, LeBel J. explains that “[t]he existence of such circumstances may also indicate that a sanction that takes account of the underlying causes of the criminal conduct may be more appropriate than one only aimed at punishment per se.”170 Restorative-justice sanctions may be necessary, as [t]he Gladue principles direct sentencing judges to abandon the presumption that all offenders and all communities share the same values when it comes to sentencing and to recognize that, given these fundamentally different world views, different or alternative sanctions may more effectively achieve the objectives of sentencing in a particular community.171 Ipeelee clarifies that the most important consideration – as with all sentencing – should be the individualization of sentencing decisions. As such, s. 718.2(e) does not require judges to produce an artificial reduction of incarceration rates.172 Quite the contrary, Gladue merely requires an “individualized assessment of all of the relevant factors and circumstances, including the status and life experiences, of the person standing before them,” which for Aboriginal offenders requires consideration of their unique circumstances.173 This, “to endeavour to achieve a truly fit and proper sentence,” is “the fundamental duty of a sentencing judge.”174 Additionally, this must be done “in a manner that is meaningful to Aboriginal peoples” because “[n]eglecting this duty would not be faithful to the core requirement of the sentencing process.”175 1.8.2 Naming colonization In Gladue, Cory and Iacobucci JJ. describe that the systemic or background factors contributing to overrepresentation 169  Ibid. Ibid. 171 Ibid. at para. 74. 172 Ibid. at para. 75. 173 Ibid. 174 Ibid. 175 Ibid. 170  37 flows from a number of sources, including poverty, substance abuse, lack of education, and the lack of employment opportunities for aboriginal people. It arises also from bias against aboriginal people and from an unfortunate institutional approach that is more inclined to refuse bail and to impose more and longer prison terms for aboriginal offenders.176 They also cite loneliness, dislocation, and community fragmentation as factors contributing to the overrepresentation of Aboriginal peoples in the system.177 While Cory and Iacobucci JJ. do not name “colonialism” or “colonization” or any variations thereof,178 the sources of Aboriginal overrepresentation in the system are products of colonization, the reverberating effects of colonialism. In Ipeelee, LeBel J. explicitly names colonialism as part of “the distinct history of Aboriginal peoples in Canada;” LeBel J. writes “[t]he overwhelming message emanating from the various reports and commissions on Aboriginal peoples’ involvement in the criminal justice system is that current levels of criminality are intimately tied to the legacy of colonialism.”179 1.9 Alternatives to imprisonment: Conditional sentence orders The conditional sentence order was implemented to provide an important alternative to provincial incarceration because it remains a sentence of imprisonment, but served in the community and with an amplified restorative justice orientation. The conditional sentence of imprisonment offers a unique alternative that is particularly important to the sentencing of Aboriginal peoples.180 Gladue describes the advent of conditional sentences as “alter[ing] the sentencing landscape” for its ability to give real meaning ss. 718.2(d) and (e).181 The leading  176  Gladue, supra note 15 at para. 65. Ibid. at para. 67. 178 Toni Williams, “Punishing Women: The Promise and Perils of Contextualized Sentencing for Aboriginal Women in Canada” (2007) 55 Cleveland State Law Review 269 at 277 n 43. [Williams, “Punishing Women”] 179 Ipeelee, supra note 16 at para. 77. 180 Gladue, supra note 15 at para. 70. 181 Ibid. at para. 40. 177  38 judgment on conditional sentences is R. v. Proulx,182 a decision by Lamer C.J. holding that conditional sentences were intended “for less serious and non-dangerous offenders.”183 The 1996 iteration of the conditional sentencing regime required judges to evaluate four factors when deciding whether a conditional sentence order is appropriate: conditional sentences were available only for offenders who would otherwise be sentenced to terms of less than two years imprisonment; offences that had minimum terms of imprisonment were ineligible; the offender’s presence could not present a danger to the community; and the sentence must be consistent with principles of sentencing.184 Conditional sentences are associated with a restorative justice approach because they are orders of imprisonment served in the community, although punitive elements are incorporated through supervision and attached conditions that restrict the offender’s liberty (and the potential that a judge will commute the sentence to a prison sanction for offenders who breach conditions without reasonable excuse).185 Proulx underscores the punitive quality of conditional sentences, noting the simultaneous ability for the sanction to respond to rehabilitative, denunciatory, and deterrent goals. This combination of rehabilitative and punitive features of conditional sentences distinguishes them from probationary orders186 because probation “has traditionally been viewed as a rehabilitative sentencing tool.”187 Additionally, a judge can order an offender to participate in treatment as a condition of a conditional sentence order whereas this can only be accomplished with the offender’s consent for a probation order.188 For the women receiving conditional sentence orders in my research, treatment conditions are often attached. 182  Proulx, supra note 84. Ibid. at para. 21. 184 Ibid. at para. 46. 185 See ibid. at paras. 21-2. 186 See e.g. ibid. at para. 23. 187 Ibid. at para. 32. 188 Ibid. at para. 25. 183  39 As the conditional sentence is available to certain offenders who otherwise face jail, Proulx holds that conditions that constrain liberty (such as house arrest or strict curfews) “should be the norm, not the exception.” 189 Such conditions alongside the stigma of living in the community under strict controls190 ensure that “[a] conditional sentence may be as onerous as, or perhaps even more onerous than, a jail term, particularly in circumstances where the offender is forced to take responsibility for his or her actions and make reparations to both the victim and the community.” 191 Nonetheless, Lamer C.J. still maintains that prison is generally more onerous, which encourages the imposition of lengthier conditional sentences to approximate a shorter duration of jail.192 These and other impacts of the conditional sentencing regime have been criticized for effectively widening state control and presenting a risk of “the increased use of imprisonment,” primarily due to the “extraordinary breach provisions that give the state administrative powers generally not seen in the criminal law.”193 However, the conditional sentence order remains critical to judges’ sentencing arsenal. The conditional sentencing regime is a particularly needed sentencing alternative for Aboriginal peoples because against the backdrop of colonization and its continuing manifestations and effects, “[t]he ineffectiveness of incarceration creates a cycle of victimization, which is partly manifested in the overincarceration of Aboriginal people.”194 Additionally, research shows that “the representation of Aboriginal adults is growing only in admissions to provincial and territorial sentenced custody”195 (the level at which conditional sentences are relevant). Ipeelee  189  Ibid. at para. 36. Ibid. at para. 105. 191 Ibid. at para. 41. 192 Ibid. at para. 44. See also Julian V. Roberts & Thomas Gabor, “Living in the Shadow of Prison: Lessons from the Canadian Experience in Decarceration” (2004) 44(1) British Journal of Criminology 92 at 108. [Roberts & Gabor, “Living in the Shadow of Prison”] 193 Roach, supra note 129 at 261. 194 Adjin-Tettey, supra note 57 at 183. 195 Juristat, Perreault, The Incarceration of Aboriginal People, supra note 23 at 9. 190  40 also recognizes that the overrepresentation of Aboriginal peoples in prisons that prompted s. 718.2(e) “was generally worse in provincial institutions.”196 The availability of conditional sentences is important for Aboriginal women specifically. Justice Arbour has noted that the overrepresentation of Aboriginal women is most stark in provincial prisons than federal penitentiaries197 (although they are also overrepresented in federal institutions). 198 This suggests that restrictions on this alternative to provincial/territorial incarceration are likely to exacerbate the overrepresentation of Aboriginal women where it is already most pronounced. It is necessary to have alternatives to imprisonment at this level because proportionally more women are admitted to provincial/territorial prisons than federal penitentiaries: [i]n 2007/2008, while women accounted for 12% of all admissions to provincial and territorial sentenced custody, they accounted for 6% of federal admissions. As well, a larger proportion of women also tend to be admitted to community sentences than custody, as women accounted for 18% of admissions to probation and conditional sentences in 2007/2008.”199 I discuss the context of women’s criminalization in Chapter 2, but in the interim it is helpful to understand the greater proportions of women in provincial/territorial custody and alternatives to custody through Justice Arbour’s comments: [a]s an overview, I think it is fair to say that women commit fewer crimes than men, and that the disproportion is immense and has remained more or less historically constant. Women commit fewer violent crimes than men, and even when they are convicted of the same crime as a man, the factual underpinning of the offence is often considerably different, and tends to point to a much lower risk of re-offending. Women pose a lower security risk than men. They have primary childcare responsibility in numbers vastly disproportionate to male offenders.200 196  Ipeelee, supra note 16 at para. 57. Arbour Inquiry Report, supra note 70 at 219. 198 CAEFS & NWAC, “Women and the Canadian Legal System: Examining Situations of Hyper-Responsibility” in Patricia A. Monture & Patricia D. McGuire, eds., First Voices: An Aboriginal Women’s Reader (Toronto: Inanna, 2009) 382 at 385. [CAEFS & NWAC, “Women and the Canadian Legal System”] 199 Juristat, Perreault, The Incarceration of Aboriginal People, supra note 23 at 9. 200 Arbour Inquiry Report, supra note 70 at 199. 197  41 In this context, restrictions on the availability of conditional sentences may have gendered effects. Comments by Cynthia Chewter, Ellen Adelberg, and Claudia Currie, issued a few years after the introduction of this sanction, remain equally salient today: conditional sentencing legislation offers a powerful new tool for those who advocate for women in conflict with the law. The legislation also helps to alleviate some of the most serious burdens that women face in the correctional system: inability to serve their sentences close to their communities, loss of their children, and potential access to a greater variety of programs and counseling.201 Limitations on the availability of conditional sentences risk reinforcing these burdens on criminalized women. Altogether, the ongoing attenuation of judicial discretion to order conditional sentences is a cause for concern – generally, and specifically for Aboriginal women. 1.9.1 The 2007 conditional sentencing amendments The conditional sentence has been contentious throughout its lifespan, in the political domain and within public consciousness.202 Objections to or discomfort about the conditional sentencing regime primarily relate to the use or perceived use of conditional sentences for violent offences. Statistics Canada reports that in 2008-2009 the vast majority of conditional sentences were ordered for non-violent offences (including 28% related to property offences and 21% to drug offences), whereas 26% of conditional sentences pertained to violent offences.203 In this climate, Parliament passed Bill C-9: An Act to Amend the Criminal Code (Conditional Sentence of Imprisonment),204 which received Royal Assent on May 31, 2007, with its amendments  201  Cynthia Chewter, Book Review of In Conflict with the Law: Women & the Canadian Justice System by Ellen Adelberg & Claudia Currie, eds., Canadian Woman Studies 19:1,2 (Spring/Summer 1999) 215. 202 See Arcand, supra note 94 at para. 43. 203 Statistics Canada: Juristat, Adult Correctional Services in Canada 2008/2009 by Donna Calverley (Fall 2010), online: Statistics Canada http://www.statcan.gc.ca/pub/85-002-x/2010003/article/11353-eng.htm#a7. 204 For the text of the passed Bill C-9, see Canada Bill C-9, An Act to Amend the Criminal Code (Conditional Sentence of Imprisonment), 1st Sess., 39th Parl., 2007, online: Parliament of Canada http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=3294571. [Canada Bill C-9 Text]  42 coming into force six months later. 205 Still more restrictions have supplanted the 2007 amendments as part of Bill C-10,206 which received Royal Assent on March 13, 2012 and entered into force as the further amended s. 742.1 on November 20, 2012.207 The content of this newly enacted version of s. 742.1 is much more restrictive than prior iterations. All such restrictions on judicial discretion in the conditional sentencing regime undercut the utility of the sanction to respond to the overincarceration of Aboriginal peoples. I address this issue in Chapter 5, the conclusion. Currently, the conditional sentencing regime is governed by s. 742, comprising ss. 742.1 to s. 742.7.208 Section 742.1 retains the original parameters: conditional sentences are still only available for imprisonment terms of less than two years and are subject to compliance with conditions; offences with codified minimum punishments are ineligible; community safety should not be endangered; and the sentence must be consistent with the purpose and principles of sentencing. The 2007 amendments made additional restrictions, but the added restriction of greatest potential relevance to Aboriginal women offenders was the stipulation that the commission of serious personal injury offences, as defined in s. 752,209 renders conditional sentences unavailable. In the main, section 752 defines “serious personal injury offence” as an indictable offence (excluding treason and first and second-degree murder) “for which the offender may be sentenced to imprisonment for ten years or more,” and involving “the use or 205  For the Parliamentary stages of Bill C-9, see Canada Bill C-9 Stages, supra note 64. For the text of Bill C-10, see Canada Bill C-10, An Act to Enact the Justice for Victims of Terrorism Act and to Amend the State Immunity Act, the Criminal Code, the Controlled Drugs and Substances Act, the Corrections and Conditional Release Act, the Youth Criminal Justice Act, the Immigration and Refugee Protection Act and other Acts (Safe Streets and Communities Act), 1st Sess., 41st Parl., 2012, online: Parliament of Canada http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=5465759&File=62#11. [Canada Bill C-10 Text]. See also Appendix A for the reproduced full text of the current (2012) s. 742.1. 207 For the Parliamentary stages of Bill C-10, see Canada Bill C-10 Stages, supra note 65. 208 Code, supra note 14 at s. 742. 209 Ibid. at s. 752. I want to again caution that during the preparation of this thesis, s. 742.1 was as I describe here. However, on November 20, 2012, less than one month before the submission of this thesis, further s. 742.1 amendments entered into force which replace the law I describe here by adding restrictions. I expand about these 2012 amendments below. 206  43 attempted use of violence;” conduct likely to endanger or endangering another person’s life/safety; or that likely to inflict or inflicting “severe psychological damage” on another.210 This aspect of the 2007 amendments is of particular relevance to Aboriginal women because as noted by Justice Arbour in her 1996 report for the Commission of Inquiry into Certain Events at the Prison for Women,211 Aboriginal women are often imprisoned for more violent offences and experience more periods of incarceration.212 Karlene Faith and Anne Near add that their experiences of imprisonment are also more punitive: in 2005, Aboriginal women comprised more than 80% of women designated to maximum-security classification, and they are overall “more likely than white women to be classified as maximum security, to be locked in segregation and to be denied parole.”213 Because the violence for which they are criminalized is often more serious (and their experiences of imprisonment often harsher), the 2007 amendment removing conditional sentences as an option for cases involving serious personal injury offences may have had a disproportionate impact on Aboriginal women offenders. At this juncture, it will be important for cases in the post-Ipeelee jurisprudence not to overly fix on the idea (misapprehended from Cory and Iacobucci JJ.’s comment in Gladue) that more serious or more violent offences will more often produce sentences similar between Aboriginal and nonAboriginal offenders.214 Some have argued that the impacts of the 1996 sentencing reforms have been gendered, 215 contending “more Indigenous men [than women] have benefitted from  210  Ibid. Arbour Inquiry Report, supra note 70. 212 Ibid. at 221. 213 Karlene Faith & Anne Near, eds., 13 Women: Parables from Prison (Vancouver: Douglas & McIntyre, 2006) at 294. 214 Ipeelee, supra note 16 at paras. 84-6. 215 See for example Balfour, “Falling Between the Cracks”, supra note 17 at 105. 211  44 sentencing provisions for conditional sentences.”216 Nonetheless, because a conditional sentence order most readily replaces what could otherwise be a carceral sentence, conditional sentences provide a valuable tool to address the overrepresentation of Aboriginal women in prisons. To be clear, when I was preparing this thesis the 2007 iteration of s. 742.1 (Bill C-9) was in force – that is, I was dealing with the 2007 conditional sentencing amendments. The 2007 erosion of the conditional sentencing regime that I describe in the previous paragraphs is deepened by the 2012 amendments. Now that Bill C-10 has entered into force, it further restricts s. 742.1 by adding subsections that remove the sanction for the following offences (where they are prosecuted by indictment): those that have maximum terms of imprisonment of 14 years or life; those that have a maximum term of imprisonment of 10 years where the offence resulted in bodily harm, involved the trafficking/production of drugs, or involved a weapon; and those identified within the list217 of offences provided. I describe my methodology in Chapter 2, but the judgments I consider in this thesis are listed in a chart at Appendix B. I mention this here because among other features of that chart, I identify which of the cases in my research would no longer be eligible for conditional sentence orders after the 2012 amendments following the passage of Bill C-10. The results are sobering: the amendments effectively all but eliminate conditional sentence orders as a possible sanction.  216  Robyn Maynard, “Criminal (in)justice: State Violence and the Criminalization of Indigenous Women in Canada, An Interview with Gillian Balfour” Briar Patch 40:2 (1 March 2011) 32, online: Briar Patch Magazine http://briarpatchmagazine.com/articles/view/criminal-injustice. at 33. 217 This list consists of the following offences: prison breach, criminal harassment, sexual assault, kidnapping, human trafficking, abduction of those under fourteen, motor vehicle theft, theft over $5000, breaking and entering a place other than a home, being unlawfully in a home, and arson for fraudulent purpose. See Canada Bill C-10 Text, supra note 206.  45 1.10 Restrictions on judicial discretion in the conditional sentencing regime: Preliminary problems The various permutations of the debates culminating in the 2007 amendments to the conditional sentencing regime exceed the scope of this thesis, although concerns voiced within the pushback against restrictions on judicial discretion did manifest to some degree in the cases I studied. In September 2006 the National Criminal Justice Section (“NCJS”) of the Canadian Bar Association recommended that Bill C-9 should not be enacted.218 The NCJS cautioned that Bill C-9 trenched on judicial discretion, impeding the ability of judges to “achieve a just result,” and setting the stage for “a disproportionate impact on populations already over-represented in the justice system, notably the economically disadvantaged, Aboriginal people, members of visible minorities and the mentally ill.”219 The NCJS expressed concern that the incursions into judicial discretion would impact the proportionality of sentences where judges are compelled to sentence more220 or less221 punitively to conform to the proposed legislation. The version of Bill C-9 that passed had been amended, differing from the iteration criticized by the NCJS.222 However, the NCJS concern about proportionality has manifested in some of the cases in my study in which  218  The Canadian Bar Association: National Criminal Justice Section, “Bill C-9 – Criminal Code Amendments (Conditional Sentence of Imprisonment)” (September 2006), online: www.cba.org/CBA/submissions/pdf/06-42eng.pdf. 219 Ibid. at 5. 220 Ibid. at 1. 221 Ibid. at 5. 222 Parliament of Canada: Law and Government Division, Legislative Summary: Bill C-9: An Act to Amend the Criminal Code (Conditional Sentence of Imprisonment) by R. MacKay (12 May 2006; revised 27 September 2007), online: http://www.parl.gc.ca/About/Parliament/LegislativeSummaries/Bills_ls.asp?lang=E&ls=c9&Parl=39&Ses=1&sourc e=library_prb. at 1, 17. I will also note anecdotally that I read the entirety of the Bill C-9 debates in the preparation of this thesis, and while the passed version of Bill C-9 was different than the form in which it was proposed, it seems that the 2012 s. 742.1 amendments signify a complete reversion to the conditional sentencing regime that the Conservatives initially proposed (and which received much backlash by other parties) in Bill C-9. That is, it seems that the current 2012 s. 742.1 is essentially a reproduction of the vision of s. 742.1 that the Conservatives proposed in Bill C-9 and which was amended after much pushback.  46 probation replaces the now-unavailable conditional sentence order.223 Other decisions indicate that when precluded from delivering the conditional sentence order they would have otherwise imposed, judges also resort to imposing terms of incarceration.224 Nonetheless, in my case law research the effects of the conditional sentencing amendments are inconsistently represented as each case varies in terms of when the offence was committed and how long the offender had been in pretrial custody or on judicial interim release before the hearing. Because the timing of the offence relative to the 2007 amendments varies, it may be premature to find trends in the case law for the effects of the amendments. This issue implicates the principle of legality, which is “has not been expressly codified in Canada,” but is protected by the judiciary. 225 Sentencing must comply with the legality principle, 226 which “requires that the law must be (1) accessible, that is understandable; (2) foreseeable in its consequences; and (3) non-arbitrary in its application.”227 In my research, the earliest case which dealt with the amended s. 742.1 is a 2008 decision,228 but the pre-2007 amendments version of the conditional sentencing regime operates as late as 2010.229 Because only several years have transpired since the 2007 amendments, it is difficult to reliably track the impacts on Aboriginal women through the sentencing decisions. Nonetheless, multiple decisions specifically comment on the unavailability of conditional sentences for the offender facing sanctions due to the 2007  223  See for example R. v. Audy, 2010 MBPC 55 at para. 5 [Audy] in which Slough J. states “prior to the amendments to the Criminal Code, a Conditional Sentence Order would have been imposed.” 224 See for example R. v. Connors, 2010 NSPC 63 at para. 18 [Connors] in which Ross J. seems inclined toward a conditional sentence order given the “strong support” for the defence position advocating such, and the comments that “[h]owever, amendments to the Criminal Code effective December 1, 2007, appear to preclude me from even considering the possibility of a conditional sentence of imprisonment.” After concluding the amendments do indeed preclude a conditional sentence order, the judge imposes a two-year term of incarceration in a federal penitentiary for robbery. 225 Arcand, supra note 94 at para. 84. 226 Ibid. at para. 85. 227 Ibid. at para. 85, n cxxxi. 228 See R. v. A.E.M., 2008 SKQB 61. 229 See R. v. Kendi, 2010 NWTTC 8. [Kendi]  47 amendments.230 Moreover, such restrictions on judicial discretion hamper fulfillment of the Gladue analysis required by s. 718.2(e) – and the legislative reasons mobilizing s. 718.2(e) (overrepresentation and broadening of the use of restorative justice) remain unchanged. As I explain above, conditional sentence orders offer a critical alternative to imprisonment for Aboriginal women. Next, in Chapter 2, I discuss feminist theories that are helpful to understanding the context of the victimization and criminalization of Aboriginal women. I also explore colonization at greater depth. The theory of the victimizationcriminalization continuum and the processes of colonization that inform the Gladue analysis are together critical to the sentencing of Aboriginal women. Through my discussion of these themes in Chapter 2, I lay the groundwork for my analysis of the sentencing judgments in Chapters 3 and 4. As criminalized Aboriginal women have often also experienced forms of victimization, I begin Chapter 2 by examining this intersection.  230  See for example, R. v. Stimson, 2010 CarswellAlta 2644 (ABPC) (WLeC); Connors, supra note 224; R. v. Redies, 2009 YKTC 85 [Redies]; and R. v. Audy, supra note 223.  48 Figure 2  “A Place to Live is also a Way to Live” (linocut in ink)  49 (2) Pathways through Feminist Theories: The Victimization and Criminalization of Aboriginal Women 2.1 Introduction There is ample research suggesting a “link between victimization and violent offending.”231 While I will focus on political and judicial understandings of the relationship between experiences of victimization and criminalization for Aboriginal women offenders,232 “[i]t is important to note that women are involved in the justice system more as victims than offenders.”233 Additionally, the forms of violence women actively engage in often differ in significant ways from those of men in terms of “the seriousness, context, and outcomes of violence.”234 Much violence committed by women is connected to their gendered (and raced, classed, etc.) location and experience. Myrna S. Raeder writes that “[w]hile the continuum from victim to offender is most clearly evident in cases of women who kill their abusers, a much wider range of female crime has ties to domestic violence.” 235 There is much support for the proposition “that violence by women is very likely to take place in the domestic sphere.”236 In an American study of intimate partner violence, Lisa R. Muftie, Jeffrey A. Bouffard, and Leana 231  Pollock & Davis, “The Continuing Myth”, supra note 121 at 19. I often use the word “offender” in this thesis – for continuity, clarity, and to denote the stage of the proceedings, where I am discussing sentencing. However, I also use the term “criminalized,” and I want to acknowledge other feminist work that strives to use “criminalized” “to signal processes and practices rather than a reified identity” [Pollack, “‘I’m Just Not Good in Relationships’: Victimization Discourses and the Gendered Regulation of Criminalized Women” (2007) 2(2) Feminist Criminology 158 at 172. [Pollack, “‘I’m Just Not Good in Relationships’”]] “to bring attention to the social, political, economic, cultural, and psychological processes that influence crime and criminality” instead of “individualiz[ing] and pathologiz[ing]” terms [Jennifer Bernier, “Breaking Down the Walls: Building a Case for Community-Based Alternatives to Incarceration that Better Meet the Needs of Criminalized Women” Network Magazine 13:1 (Fall/Winter 2010/11). online: Canadian Women’s Health Network http://www.cwhn.ca/en/node/42825. [Bernier]]. I fully agree with their rationale for using the term “criminalized.” For this reason, and bolstering my support for the “victimization-criminalization continuum” above other theories expressing similar ideas, I will frequently use the term “criminalization” to describe the confluence of factors intersecting to bring Aboriginal women in conflict with the law. 233 Tyagi, supra note 56 at 134. 234 Lisa R. Muftic, Jeffrey A. Bouffard and Leana Allen Bouffard, “An Exploratory Study of Women Arrested for Intimate Partner Violence: Violent Women or Violent Resistance?” (2007) 22(6) Journal of Interpersonal Violence 753 at 771-2. [Muftic, Bouffard, & Bouffard] 235 Myrna S. Raeder, “Domestic Violence in Federal Court: Abused Women as Victims, Survivors, and Offenders” (2006) 19(2) Federal Sentencing Reporter 91 at 92. [Raeder] 236 Pollock & Davis, supra note 121 at 19. 232  50 Allen Bouffard find that “[o]verall, research points to the potential conclusion that not only are women less likely to engage in severe physical violence but also the types of violence women resort to within an abusive intimate relationship are typically more self-defensive in nature.”237 In the cases analyzed in my study, women’s criminalization seems frequently connected to past experiences of victimization, and often involves intimate partner violence, or experiences related to this abuse. Feminist criminological discourses are significant to criminology because “it has not been fashionable to treat female offenders as victims, even if their crimes have a direct relationship to their violent victimization.” This is particularly true among groups such as “[t]raditional victims’ advocates” who continue to “see a sharp break between victims and offenders.”238 Raeder calls for the American victims’ movement to include women offenders within the purview of the victims’ community, programs, and advocacy239 and urges for the creation of “a fairer sentencing regime for offenders whose criminality is linked to the domestic violence they have suffered.”240 Canadian political and judicial actors and institutions must similarly develop more nuanced understandings of victimization and criminalization so that policy, law, and sentencing practices can better respond to the specificity (and diversity) among Aboriginal women offenders’ lives. In this chapter, I draw from many feminist writers to provide the theoretical background that will undergird my thinking in subsequent chapters. First I will discuss various feminist criminological theories about how women’s victimization may contribute to their criminalization. While I will argue that these theories are substantially equivalent, I will use the  237  Muftic, Bouffard, & Bouffard, supra note 234 at 757. Raeder, supra note 235 at 91. 239 Ibid. at 92. 240 Ibid. 238  51 language of the victimization-criminalization continuum and provide my definition of it. I will discuss criticisms of this theory, but will argue that these criticisms subside when the theory is framed expansively because “[t]he framing of an issue is about making decisions about its parameters, about what is in the foreground, what is in the background, and what shadings or complexities exist within the frame.”241 I will then discuss ways in which women become further marginalized by victimization. Aboriginal women disproportionately experience violence, which I will introduce and then offer supplementary background to the concept of colonization to expand on Chapter 1. Criminalization and overincarceration of Aboriginal peoples operate as reverberations of colonization – perhaps as ongoing processes of colonization. I will explore the relationship between them, with particular attention to whether criminalization is a strategic extension of colonization. I will then briefly address the gendered nature of the criminalization of Aboriginal women. Finally, I will discuss the sentencing of Aboriginal women where judicial consideration of Gladue factors often crosses over into consideration of the level of risk the offender is projected to present and where the balance of this tension (between Gladue and risk considerations) falls, notably where judges resolve it by framing imprisonment as a place of treatment. I open this chapter with my linocut/painting “A Place to Live is also a Way to Live” (Figure 2), to evoke the victimization-criminalization continuum. The maroon background suggests the background of violence (and other experiences of victimization) in the lives of many criminalized Aboriginal women. The image of the woman’s body is intended to evoke sexualized violence,242 to reference the gendered nature of violence against women. This image is also  241  Tuhiwai Smith, supra note 56 at 153. There is also a kind of violence in the frame chopping her body such that she is not depicted as a full person. Feminist media critic Jean Kilbourne argues that the dismemberment of women’s bodies in advertising reduces women to objects, connecting this to sexual violence because processes of dehumanization and objectification 242  52 based on the same pose I carved to create the linocut in Figure 1, so that there is an internal correspondence between the two paintings to again refer to colonization and the overrepresentation of Aboriginal women in prison. To indicate light contrasts on the prints of the woman’s body in both Figures 1 and 2, I have used the equivalent of a drawing technique called “crosshatching,” in which lines intersect to create a grid-like pattern. I intend these crosshatched “grids” to represent prison (visually, such as bars, fenced perimeters, and metal reinforcement in glass cell windows), and the way the prison experience becomes etched on both prisoners’ psyches and bodies. This idea is particularly important to my discussion of imprisonment in Chapter 4. Finally, because the linocut/painting “A Place to Live is also a Way to Live” is a print, its image will be largely repeated every time it is rolled with ink and reprinted. I discuss below the concept of how experiences of victimization constrain the options available to Aboriginal women, creating vulnerability to criminalization. 2.2 Blurred pathways: Directions for the victimization-criminalization continuum Several feminist criminological theories about criminalized women share the basic premise that women’s experiences of violence and other forms of victimization should be understood as connected to how women enter the criminal justice system as accuseds.243 In her review of various feminist criminology, Joanne Belknap finds that “[p]erhaps the single most important contribution of feminist criminology is in the development of the ‘pathways’ perspective or approach,” which she defines as advancing the proposition “that traumas and victimizations are risk factors for offending,” noting the widespread research documenting “the  facilitate violence. See “Killing Us Softly 4: Advertising’s Image of Women” (2010), online: youtube http://www.youtube.com/watch?v=PTlmho_RovY&feature=related. 243 Lois Presser, “The Narratives of Offenders” (2009) 13(2) Theoretical Criminology 177 at 191.  53 extensive trauma and abuse histories of female offenders.” 244 Meda Chesney-Lind also emphasizes the significance of this insight, identifying that feminist research has pointed to sexual and physical victimization, gender, and race as generating particular (and, I would add, interconnected) pathways leading to criminality/criminalization.245 These modes of pathwaygeneration  are  accelerated  in  communities  struggling  with  substance  abuse  and  overincarceration.246 Also responding to accumulated research indicating the prevalence of prior experiences of victimization for women offenders,247 there are related streams of thought that convey similar ideas to the pathways theory. For example, “recent feminist research identifies the concept of ‘blurred boundaries’ between women’s victimization and offending experiences.” 248 The “‘blurred boundaries’ thesis argues that women’s offending is intimately linked to their previous victimization.” 249 This theory tries to “[disrupt] the dichotomy” 250 between “victim” and “offender,” noting the instability between these ideas and identities because “the boundaries between the two categories are more often than not blurred ones.”251 While these theories convey the same concepts I will use, I will primarily draw from the related feminist concept of the “victimization-criminalization continuum” to think about whether/to what extent such ideas are understood in judicial discourses about Aboriginal women, and what this means for the sentencing of Aboriginal women. Gillian Balfour describes that 244  Joanne Belknap, “‘Offending Women’: A Double Entendre” (2010) 100(3) The Journal of Criminal Law and Criminology 1061 at 1080. 245 Meda Chesney-Lind, “Patriarchy, Crime, and Justice: Feminist Criminology in an Era of Backlash” (2006) 1(1) Feminist Criminology 6 at 8. 246 Ibid. 247 Pollock & Davis, supra note 121 at 19. 248 Amanda Burgess-Proctor, “Intersections of Race, Class, Gender, and Crime: Future Directions for Feminist Criminology” (2006) 1(1) Feminist Criminology 27 at 44 n 2. 249 Dana M. Britton, “Feminism in Criminology: Engendering the Outlaw” (2000) 571 Annals of the American Academy of Political and Social Sciences 57 at 72. 250 Ibid. 251 Elizabeth Comack, “New Possibilities for a Feminism ‘in’ Criminology? From Dualism to Diversity” (1999) 41(2) Canadian Journal of Criminology 161 at 165. [Comack, “New Possibilities for a Feminism”]  54 when the victimization-criminalization continuum theory first emerged over twenty years ago, it suggested that “women’s lawbreaking behaviours (drinking and drugging, prostitution, and violence) were understood to be strategies to cope with the impact of abuse,”252 and “women’s victimization (sexual exploitation, domestic violence, rape) was viewed as a cause or pathway into violence, addiction, prostitution, or fraud.”253 This formulation has been criticized, as I discuss below. I believe that notwithstanding problems feminists have identified with this theory, within a certain formulation it remains useful to understand how many women in the system may have come into heightened vulnerability to criminalization through their experiences of victimization. Balfour contends that the victimization-criminalization continuum “has not been adequately theorized or debated,”254 which leaves space to expand it beyond problems identified within it. In this thesis, I will use the victimization-criminalization continuum to signify that women’s experiences of victimization constrain their available options, which (particularly for already marginalized women) magnifies their vulnerability to criminalization. For my purposes, I do not observe any substantial difference among the blurred boundaries, pathways, and victimization-criminalization continuum theories. All allow for nuances within the blurriness, branching paths, and shifting continuum of identities and experiences. Additionally, in substance all three modes of understanding emerge from evidence connecting women offenders’ experiences of victimization to their criminalization and support this formulation. Moreover, because I have chosen to adopt an expansive definition of “victimization” to include a range of marginalizing experiences (often connected to violence, but not limited to that experience), any nuanced distinctions among these theories dissipate. I will primarily refer to the victimization-criminalization continuum simply because it most explicitly 252  Balfour, “Re-Imagining a Feminist Criminology”, supra note 55 at 742. Ibid. 254 Balfour, “Falling Between the Cracks”, supra note 17 at 110. 253  55 connects these experiences, although I will periodically reference the pathways theory interchangeably. Ultimately, these feminist theories all seek to explain the same issues, all sharing the fundamental premise that the culmination of life experiences, including victimization, contributes to women’s criminalization. Much as the issues within women’s lives are impossible to disentangle, these feminist theories are necessarily enmeshed with each other, and not isolable. 2.3 Where victimization constrains women’s options and support: The victimizationcriminalization continuum The victimization-criminalization continuum has been criticized on the basis that it suggests a determinative relationship between women’s victimization and criminality, that women’s criminality can be directly explained through their experiences of victimization, and dealt with likewise.255 This “recent feminist scholarship has challenged the over-determined role of abuse in women’s lives, cautioning that such a strategy renders women responsible for how they cope with abuse, justifying the imprisonment of women based on their assumed need for treatment.” 256 This work also contends that the victimization-criminalization continuum “follow[s] the psychologizing and individualizing logic of the criminal justice system.”257 These criticisms share the same foundations as the concept of “responsibilization,” which features in much feminist writing about women in the correctional system. Kelly Hannah-Moffat outlines that responsibilization is the process through which “individuals (as opposed to the ‘state’) are increasingly expected to be responsible and accountable for their own risk management and self-  255  See generally, Balfour, “Re-Imagining a Feminist Criminology”, supra note 55. Balfour, “Re-Imagining a Feminist Criminology”, supra note 55 at 743. 257 Ibid. 256  56 governance.”258 This focus deflects attention and responsibility for supporting women’s needs in the community away from government provision of funding and services.259 As there is a pattern in the cases in my study where prison is presented as a place of healing and necessary for healing, I will consider the individualization of issues that should be understood as functions of systemic problems in Chapters 3 and 4 where I examine judicial discourses about the victimization and criminalization of Aboriginal women offenders. Related criticisms argue that the victimization-criminalization continuum does not leave sufficient space for recognition of women’s expressions of agency, as agency disrupts the problematic determinative ideas that victimization leads to criminality. As Smita Vir Tyagi writes, [t]hat women offenders experience such high degrees of abuse and trauma, which often form pathways into offending, should not be assumed to translate into women’s lack of agency. One should not infer that women offenders are simply the sum total of their victimization, addictions and traumatic life experiences.260 Elizabeth Comack explains that incorporating agency is useful to subvert essentialist ideas about victimization and criminality, because historically the categorization of women as victims has had the effect of devaluing feminist insights and focus.261 Comack suggests that “dualistic thinking”262 elicits and propels criminal justice-oriented responses (such as decisions about the degree of punitive response warranted by offending behaviour) bereft of more careful thought and attention to “the wider contexts in which people encounter their troubles” and the necessity of making changes at that level as opposed to merely the reactive end.263 I understand “agency”  258  Kelly Hannah-Moffat, “Re-Forming the Prison – Rethinking our Ideals” in Kelly Hannah-Moffat & Margaret Shaw, eds., An Ideal Prison? Critical Essays on Women’s Imprisonment in Canada (Halifax: Fernwood Publishing, 2000) 30 at 39 n 4. 259 Balfour, “Re-Imagining a Feminist Criminology”, supra note 55 at 743. 260 Tyagi, supra note 56 at 134. 261 Comack, “New Possibilities for a Feminism”, supra note 251 at 164. 262 Ibid. at 165. 263 Ibid. at 166-7.  57 to mean “our capacity to make choices.”264 Philosophically, Emma LaRocque describes that this translates into “moral agency,” which is rooted in “what makes us human.” Because agency is fundamental to our sense of humanity and autonomy, the denial of our abilities to make choices strips that away. As such, because “colonization or any other form of coercion is a form of dehumanization”265 that undercuts Aboriginal peoples’ right to and ability to exercise selfdetermination (at the individual and collective levels), the issue of agency takes on greater significance for Aboriginal women. To avoid the agency-denying conception of the victimization-criminalization continuum and allow for fuller appreciation for how women enact violence, feminist conceptions of female offending must incorporate fuller understandings of how experiences of violence and other victimizations impact women and how these experiences constrain women’s available options and support. This assumes particular significance for marginalized women whose range of choices is already circumscribed by the limits of their lives (such as the narrowed options available to low-income women in small, remote communities). Dana M. Britton notes the delicacy required to achieve this conceptual balance: “[m]irroring overall trends in feminist theory, the best of this work is moving toward a nuanced and contingent conception of women’s agency, one that sees women neither exclusively as victims nor as unfettered actors.”266 The idea that agency is expressed within the constrained options available to victimized women is reflected in studies of criminalized women. For example, in a study I will expand on below, Dana DeHart finds that “most women in our sample possessed a component of choice in  264  Emma LaRocque, “Métis and Feminist: Ethical Reflections on Feminism, Human Rights and Decolonization” in Joyce Audry Green ed., Making Space for Indigenous Feminism (Black Point, N.S.: Fernwood Pub., 2007) 53 at 61. [LaRocque] 265 Ibid. 266 Britton, supra note 249 at 62.  58 committing their crimes,”267 and that recognizing the “cumulative impact of victimization” is necessary to understanding “why women chose illegitimate over legitimate pathways.”268 As such, thinking about victimization in terms of marginalization and the morass of limited options and support that women must navigate allows for the element of agency that the victimizationcriminalization continuum has been criticized for precluding. The issue of agency is nonetheless still fraught in this context, because while no one makes life choices unencumbered by externalities, for many victimized women their remaining options are extremely few and precariously augment their vulnerability to coming into conflict with the law. Smita Vir Tyagi writes [v]iolence and victimization play a significant role in women’s trajectories of offending. Studies have repeatedly shown that women’s pathways into crime most often involve running away from physical and sexual abuse or abusive relationships. The trajectory into criminal behaviour is motivated by survival and as a response to victimization.”269 For many of these women trying to escape violence (or other forms of victimization), there is not much to run to. In their study, Kathleen J. Ferraro and Angela M. Moe illustrate the degree of constraints and dearth of community support for some women. Ferraro and Moe find that some women view prison as a reprieve from the threats in their lives on the outside (including feeling safe from abusive partners while incarcerated,270 receiving the shelter and minimal care that women who lived on the street otherwise lacked,271 and the relief at being removed from their community  267  Dana D. DeHart, “Pathways to Prison: Impact of Victimization in the Lives of Incarcerated Women” (2008) 14(12) Violence Against Women 1362 at 1378. [DeHart] 268 Ibid. at 1376. 269 Tyagi, supra note 56 at 134. 270 Kathleen J. Ferraro & Angela M. Moe, “Mothering, Crime, and Incarceration” (2003) 32(1) Journal of Contemporary Ethnography 9 at 23. [Ferraro & Moe] 271 Ibid. at 25.  59 triggers for substance abuse272). Where imprisonment functions as something of a respite, women become vulnerable to criminalization, having nothing left to lose. Ferraro and Moe highlight that this perception of imprisonment speaks more to the “complex problems” 273 marginalized women face in the community with minimal supports that cannot be fixed through sentencing initiatives.274 However, I do not want to overemphasize this depiction of prison as a refuge, in part because much evidence suggests that imprisonment generally exacerbates preexisting life and mental health issues and foments new such issues,275 and equally because I did not see evidence of this perspective on prison in the judgments discussed in Chapters 3 and 4.276 In addition, Ferraro and Moe study the narratives of thirty women in a southwestern county prison in the United States, and the dissonance between social issues (such as health care and other aspects of the social security net) in this context versus the Canadian context means Ferraro and Moe’s findings cannot be directly transposed on the lives of Canadian criminalized women. Nonetheless, their findings speak to the scope of just how narrowed some women’s options can be, and within which these women are vulnerable to criminalization. Most federally-sentenced women are mothers; the Correctional Investigator reports that 77% have children, and more than half have experienced some involvement with Children’s Aid.277 It is more difficult to obtain information about the profiles of women serving sentences in  272  Ibid. at 30. Ibid. at 36. 274 Ibid. 275 See e.g. Michael Jackson, Justice Behind the Walls: Human Rights in Canadian Prisons (Vancouver: Douglas & McIntyre, 2002) at 18. [Jackson, Justice Behind the Walls] 276 In the cases discussed in Chapters 3 and 4, defence counsel seeks alternatives to imprisonment where appropriate, and periods of imprisonment in women’s lives as reported in PSRs and otherwise presented to the court generally read as damaging experiences. 277 OCI, Annual Report 2010-2011, supra note 29 at 50. 273  60 provincial prisons,278 although there is research showing that the majority of women serving time in the provincial correctional system are also mothers, and usually single parents.279 Motherhood and its associated responsibilities and financial demands (including how it can constrain life choices) becomes straining for incarcerated women whose abilities to maintain relationships with their children are compromised by their separation, and may be difficult for women to balance alongside compliance with supervisory orders once released into the community.280 In their interview-based research, Ferraro and Moe find that issues relating to the custody of women offenders’ children are interrelated with other issues, predominantly substance use. For some women in Ferraro and Moe’s study, their substance abuse occasioned the removal of their children.281 Those women who lost their children to state care (due to substance abuse and other reasons) often simultaneously lost any motivation to seek treatment or otherwise regain control over their addictions and became further embroiled in these struggles. 282 Women’s respective senses of control over their own lives are undermined when the state removes their children into its custody, and substance use may represent an attempt to reassert some form of control. Alternatively, distressed women forcibly separated from their children may turn to substance use having “‘nothing [left] to lose,’”283 or who simply use because that feels better (and is more readily achievable than other ways of coping) than their challenging realities. At these junctures, women become more susceptible to criminalization, so issues related to motherhood can impact women’s pathways to prison or other criminal sanctions.  278  I had difficulty finding information about provincially-sentenced women in my own research, and Jennifer Bernier too references that compared with the federal level, there is a dearth of information about provincial correctional systems and the women within them. See Bernier, supra note 232. 279 See e.g. Jennifer Bernier’s study of 32 women who were in provincial correctional institutions or who had previously spent time in provincial custody across Atlantic Canada. Ibid. 280 Ferraro & Moe, supra note 270 at 36. 281 Ibid. at 26. 282 See e.g. Ferraro & Moe, supra note 270 at 27, 33. 283 Ibid. at 30.  61 Taking all of these varying experiences into account, it becomes apparent that women have different, and sometimes very constricted, options depending on where they are located socio-economically, and in other ways. Accordingly, victimization can be seen as narrowing women’s options such that criminality looms larger as an option – perhaps more accessible (even necessary), less distasteful, or less catastrophic where violence and other traumas have been felt in women’s lives. Alternatively, often victimization isolates women from social supports and narrows their options such that few options exist at all for these women, who become more susceptible to becoming criminalized. This depiction is different than suggesting a determinative relationship between victimization and criminalization; instead, it merely points to the strains in marginalized women’s lives. In this context, the victimization-criminalization theory remains helpful in understanding women’s criminalization and socio-legal responses to it. Karlene Faith explains that “victimization cannot be named as ‘the’ cause of crime” in part because while many criminalized women have experiences of victimization, the proportion of victimized women who later offend is quite small relative to the number of victimized women who do not.284 As such, she contends “[t]he  continuum,  then,  does  not  follow  deterministically  from  victimization  to  criminalization.”285 Instead, Faith suggests [t]he continuum from victimization is arbitrarily drawn according to power relations as constructed through racially divided and class-based social structures, in tandem with the authority of law and other dominant discourses such as medicine, social sciences and welfare, which all serve selective law enforcement practices.286  284  Karlene Faith, Unruly Women: The Politics of Confinement and Resistance (Vancouver: Press Gang Publishers, 1993) at 108. [Faith, Unruly Women] 285 Ibid. 286 Ibid.  62 In this light, a woman’s criminalization is more properly seen as connected to her experience(s) of victimization as refracted through her (shifting) intersectional positioning. Intersectionality is a feminist theory holding that feminism is not advanced by a focus exclusively on gender as an analytical category for “understanding and combating inequality.”287 Instead, intersectionality posits that gender is just one category of identity that operates in conjunction with other such categories to create a distinct experience288 – an experience of “‘interlocking’ oppressions.”289 Intersectionality offers a more complex way to advance feminist goals because it is more nuanced and can better explain and be applied to the different experiences and situations within the multiplicity of women. For example, intersectionality seeks to provide the framework to understand how gender, race, and class are interrelated experiences within interrelated systems of oppression that fuse together and bolster each other. These interconnections are complicated and personal, but Lorelei Means comments about feminist priorities from the United States context that “‘[w]e are American Indian women, in that order. We are oppressed, first and foremost as American Indians, as peoples colonized by the United States of American, not as women.’” 290 Although, the relationship among the various intersections within Aboriginal women’s lives is encumbered by complexity, as the processes of colonization are not severable from other oppressions: “the subjugation of Indigenous communities depended on the subjugation of women.”291  287  Joanne Conaghan, “Intersectionality and the Feminist Project in Law” in Emily Grabham et al, eds., Intersectionality and Beyond: Law, Power and the Politics of Location (New York: Routledge-Cavendish, 2009) 21 at 21. [Conaghan] 288 Ibid. 289 Ibid. at 36. 290 Cited in Verna St. Denis, “Feminism is for Everybody: Aboriginal Women, Feminism and Diversity” in Joyce Audry Green ed., Making Space for Indigenous Feminism (Black Point, N.S.: Fernwood Pub., 2007) 33 at 40. [St. Denis] 291 Rauna Kuokkanen, “Myths and Realities of Sami Women: A Post-Colonial Feminist Analysis for the Decolonization and Transformation of Sami Society” in Joyce Audry Green ed., Making Space for Indigenous Feminism (Black Point, N.S.: Fernwood Pub., 2007) 72 at 81. [Kuokkanen]  63 Faith’s incorporation of intersectional ideas in the victimization-criminalization continuum is useful for its incorporation of systemic factors, like poverty and colonization, which contribute to women’s vulnerability to victimization. I envisage the continuum as nonlinear, with many incursions and redirections from external forces (broad, structural issues like poverty and discrimination, as well as events within women’s lives often stemming from those structural issues such as relationship dissolution or the removal of children by the state). Visually, perhaps the continuum would look something like a web instead of a vector. Faith rejects notions that the “victim” identity indicates passiveness or powerlessness, but instead offers that the myriad ways women navigate and survive abuse are demonstrations of their agency and choice. 292 Criminality should be understood as within these modes of orientation and survival, perhaps indicating “women’s resilience and capacity for positive action as well as negative reaction against social injustices.”293 The agency that can be inferred in women’s criminal behaviour may take different forms, and criminalized women’s choices are and will continue to be constrained by systemic forces. That is, the victimization-criminalization continuum should reflect the often-limited options available to women who become criminalized. These constricted options can be related to the suggestion that “women’s experiences in the criminal justice system have been thematically linked by abandonment.”294 This abandonment can be conceptualized both at the personal level (such as that from women’s families or communities) and marginalization at that state or structural level (such as the deplorable condition of many Aboriginal communities).  292  Faith, Unruly Women, supra note 284 at 108. Ibid. at 109. 294 Danielle Dirks, “Sexual Revictimization and Retraumatization of Women in Prison” (2004) 32(3/4) Women’s Studies Quarterly 102 at 108. [Dirks] 293  64 Notwithstanding criticisms of the victimization-criminalization continuum, it remains a helpful lens to understand women in conflict with the law. Equally, it is instructive to take a wider view (from a singular focus on women’s criminalization) to incorporate discussions about how manifestations of the continuum operate in (or fails to enter) judicial reasoning on sentencing. I will use the victimization-criminalization continuum in the latter respect in this thesis to explore discourses of victimization, criminalization, and where they intersect and impact Aboriginal women at sentencing. I referenced the following quote from Ipeelee in Chapter 1, but I return to LeBel J.’s words again here to emphasize the importance of thinking about the relationship between victimization and criminalization in the sentencing of Aboriginal women: Canadian criminal law is based on the premise that criminal liability only follows from voluntary conduct. Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options for positive development. While this rarely — if ever — attains a level where one could properly say that their actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moral culpability.295 2.4 Shifting pathways: Structural dislocation296 and layered victimizations Dana D. DeHart calls attention to expanding research that positions victimization as a pivotal force that may propel/accelerate women along a “‘pathway’ to crime,” singularly or alongside “other factors such as poverty, family fragmentation, school failure, and physical and mental health problems.”297 DeHart identifies a direct correlation between victimization and criminality for some women in her study.298 DeHart’s study consists primarily of interviews with 60 women (approximately half African-American, half White) at an American maximum295  Ipeelee, supra note 16 at para. 73. DeHart, supra note 267 at 1370. 297 Ibid. at 1362. 298 Ibid. at 1365. 296  65 security state prison, and also includes various prison demographic and criminal record documentation, and some related media reports.299 The women’s lives include “a range of victimization and criminal experiences”300 and their convictions vary in type and severity from shoplifting to murder. The open-ended interview approach used engaged responses pertaining to “family and relationship history, physical and psychological victimization, lifetime delinquency and crime, and interactions with social service and justice systems.”301 DeHart draws from earlier work to underscore that victimization and its effects “serve to ‘structurally dislocate’ women from ‘legitimate’ social institutions” such as “push[ing] girls and women out of families and peer groups, homes, schools or workplaces, and institutions of worship,”302 as well as creating family disruption experienced by mothers whose children are removed into state care.303 Through this process, victimization further marginalizes women by limiting or removing access to aspects of our social structure and resources, which restricts their available options for support.304 Without these avenues, it becomes even more difficult for women to leave abusive relationships, and particularly for women who lack the independent financial stability or housing to rely on.305 Victimization impacts women’s physical and mental health, 306 and women’s support networks have already been contracted within controlling, abusive relationships.307 While DeHart’s research emerges from the United States, it applies to the effects of victimization for women in Canada. The Native Women’s Association of Canada (NWAC)  299  Ibid. at 1363. Ibid. 301 Ibid. 302 Ibid. at 1370. 303 Ibid. at 1371. 304 Ibid. at 1366. 305 Ibid. at 1371. 306 Ibid. at 1368. 307 Ibid. at 1371. 300  66 reports that with few options available to Aboriginal women in or leaving abusive relationships, they become “forced into situations or coping strategies that increase their vulnerability to violence,” including remaining in abusive situations or entering new ones, sex work, homelessness, and substance abuse.308 Research documents a specific nexus between intimate violence and substance abuse, particularly for marginalized women.309 Statistics Canada reports that substance abuse may be used as a coping mechanism to deal with experiences of victimization, and can increase an individual’s vulnerability to reacting with inappropriate violence or being herself further victimized.310 Statistics Canada also describes the frequent connection between substance abuse and criminalization (such as committing offences to support an addiction or where substance abuse becomes entwined within a broader experience of criminality).311 Chronic poor housing situations in Aboriginal communities (falling beneath the criteria of “safe, secure, affordable or appropriate”) also constrain the options available to women struggling with these issues.312 Offenders generally demonstrate a prevalence of “dual, multiple, or overlapping sources of vulnerability,”313 and processes of colonization deepen and tighten these entwined vulnerabilities for Aboriginal women. DeHart’s work is also helpful to understand the victimization experiences of criminalized Aboriginal women because her study highlights that the “cumulative impact of victimization over the life span”314 of incarcerated women differentiates their histories and experience from  308  NWAC, “What Their Stories Tell Us”, supra note 22 at 13. Tyagi, supra note 56 at 134. 310 Canada, Statistics Canada: Canadian Centre for Justice Statistics, Criminal Justice Indicators: 2005, (Ottawa: Minister of Industry, 2005), online: http://www5.statcan.gc.ca/access_acces/archive.action?loc=/pub/85-227-x/85227-x2002000-eng.pdf. (Authors: Gannon et al., Editor: Rebecca Kong) at 171. [Statistics Canada, Gannon et al, Criminal Justice Indicators: 2005] 311 Ibid. 312 NWAC, “What Their Stories Tell Us”, supra note 22 at 12. 313 Cindy A. Peternelj-Taylor, “Conceptualizing Nursing Research with Offenders: Another Look at Vulnerabilty” (2004) 28(4) International Journal of Law and Psychiatry 348 at 350. [Peternelj-Taylor] 314 DeHart, supra note 267 at 1374 [emphasis added]. 309  67 those of non-incarcerated women.315 This finding is highly relevant for Aboriginal women whose extensive histories of victimization are disproportionately high. 316 The high volume of victimizations also contributes to how women become dislocated from social supports: [m]ost of the women suffered multiple traumas and were victimized in multiple ways (e.g., child abuse and neglect, adult relationship violence, sexual violence). The varied impacts of polyvictimization (i.e., experiencing simultaneous episodes of different types of victimization) had potential to create ripple effects in multiple arenas in the women’s lives, causing overall disruption and pushing the women out of the mainstream. Often, the intersection of losses seemed to create uniquely difficult situations.317 Describing polyvictimization as “unrelenting trauma,”318 DeHart reports the conclusion from related quantitative studies that the “sheer number of victimizations” is more indicative of the difficulties women may experience than “any particular type.” 319 The accumulation of victimizations produces “a tangle of barriers that the women faced in finding legitimate pathways in life,”320 accelerating their structural dislocation. Such experiences of victimization often do not unfold in a linear manner, victimizations (in)directly leading to criminal activity; instead, these experiences may overlap and fluctuate in an “entanglement of victimization and crime” – knotting ever more tightly the more women become enmeshed in the system.321 In their study comparing physical and sexual revictimization (adult victimization following experiences of child abuse) of incarcerated women against those of inner-city nonincarcerated women, Chantal Poister Tusher and Sarah L. Cook find that incarcerated women were more likely to experience revictimization.322 While they acknowledge  315  Ibid. See e.g. Juristat: Brennan, Violent Victimization of Aboriginal Women, supra note 30. 317 DeHart, supra note 267 at 1374. 318 Ibid. at 1375. 319 Ibid. 320 Ibid. at 1378. 321 Ibid. at 1377. 322 Chantal Poister Tusher & Sarah L. Cook, “Comparing Revictimization of Two Groups of Marginalized Women” (2010) 25(10) Journal of Interpersonal Violence 1893 at 1906. 316  68 that it is “currently unclear how patterns of violence and incarceration intersect throughout women’s lives,” 323 the finding that there is an intersection between victimization and incarceration is significant and deserves attention. DeHart suggests that understandings about how the cumulative impacts of multiple victimizations may influence options available to women has import at a variety of stages of processing through the justice system, such as “implications for rehabilitation and accountability, including recommendations during pretrial services, sentencing, correctional programming, and conditions of release.” 324 My thesis is animated by an interest in institutional (legal and correctional) perceptions and responses to women’s rehabilitative needs based on differing understandings of how experiences of victimization impact their criminality. In Chapters 3 and 4, I will consider whether/how such understandings are reflected in the presentation of women’s histories (generally through pre-sentencing reports (PSRs)) and how related judicial reasoning leads to rehabilitation-related discourses and sanctions. 2.5 Violence against Aboriginal women Drawing primarily from the 2004 General Social Survey, 325 Jodi-Anne Brzozowski, Andrea Taylor-Butts, and Sara Johnson find that Aboriginal women are at greater risk of experiencing violence than non-Aboriginal women, 326 including a particularly high risk of  323  Ibid. at 1907. DeHart, supra note 267 at 1378. 325 Juristat: Brzozowski, Taylor-Butts & Johnson, Victimization and Offending, supra note 22. This research did not contain information from the Northwest Territories, Yukon, or Nunavut [at 16], and data from reserves was “likely underrepresented” [Douglas A. Brownridge, “Understanding the Elevated Risk of Partner Violence against Aboriginal Women: A Comparison of Two Nationally Representative Surveys of Canada” (2008) 23(5) Journal of Family Violence 353 at 365. [Brownridge]]. It should also be noted that “[r]esearch has shown that crime rates on reserves are higher than crime rates outside reserves” (although “[t]hese differences have been attributed (at least in part) to differences in the nature of policing in these communities”), and that “most Aboriginal people do not live on reserves.” [Juristat: Brzozowski, Taylor-Butts & Johnson, Victimization and Offending, supra note 22 at 9.] 326 Juristat: Brzozowski, Taylor-Butts & Johnson, Victimization and Offending, supra note 22 at 5. 324  69 spousal violence327 in which they are also much more likely “to suffer the most severe forms of spousal violence.”328 In a subsequent article based on the 2009 data,329 Shannon Brennan reports that Aboriginal women living in the provinces (excluding the territories) are almost three times as likely as non-Aboriginal women to experience violent victimization330 (across relationship types, including stranger, acquaintance, and spousal violence).331 The “polyvictimization”332 and “unrelenting trauma”333 experienced by many Aboriginal women – continuous and various experiences of victimization – should be situated within the broader context of processes of colonization. These levels of violence speak to how Aboriginal women experience colonization in a gendered way. In her capacity as the Vice President of the National Action Committee on the Status of Women and a member of the Aboriginal Women’s Action Network (BC), Fay Blaney commented in 2000 about “systemic and institutionalized discrimination” faced by Aboriginal women that “‘we do have patriarchy and we have colonialism within our Aboriginal communities, not only historically, but today.’”334 Joyce Green writes that “[s]ome Aboriginal cultures and communities are patriarchal, either in cultural origin or because of incorporation of colonizer patriarchy.”335 Green understands colonialism in  327  Ibid. at 6. Ibid. 329 This article notes that because a different research question was used to identify Aboriginal peoples in each study, the results should not be directly compared. [Juristat: Brzozowski, Taylor-Butts & Johnson, Victimization and Offending, supra note 22 at 17 n 3.]. 330 Juristat: Brennan, Violent Victimization of Aboriginal Women, supra note 30 at 7. 331 Ibid. at 9. 332 DeHart, supra note 267 at 1374. 333 Ibid. at 1375. 334 However, some other Saskatchewan Aboriginal women attending this conference expressed reservations about Blaney’s statement. Provincial Association of Transitional Houses (PATHS), Restorative Justice: Is it Justice for Battered Women?: Should the Saskatchewan Government Allow/Institute the Use of Restorative Justice Strategies for Family Violence Cases Throughout the Province/in Only Certain Communities/Only Under Certain Circumstances/with Certain Safeguards?: Report on PATHS’ April 2000 Conference. Saskatoon, 2000. (Saskatoon: PATHS, 2000), online: PATHS http://www.hotpeachpages.net/canada/air/rjConfdoc.html. at 23. 335 Joyce Green, “Taking Account of Aboriginal Feminism” in Joyce Audry Green ed., Making Space for Indigenous Feminism (Black Point, N.S.: Fernwood Pub., 2007) 20 at 22. [Green, “Taking Account of Aboriginal Feminism”] 328  70 an intersectional way, noting it is “closely tied to racism and sexism.”336 She describes that these -isms have been “directed at Indigenous people,” but have also been internalized by some Indigenous political cultures in ways that are oppressive to Indigenous women.”337 Douglas A. Brownridge explains “the elevated risk for violence against Aboriginal women is not due to any single risk factor but, rather, a constellation of variables that may be linked to the larger experience of colonization.”338 Andrea Smith, a Cherokee scholar, connects intimate violence against women in Indigenous societies to colonization.339 I will discuss colonization in greater depth below. Most of Aboriginal women’s experiences of violence are not reported to the police.340 This mirrors the general data that most violence against women goes unreported – and incidents that are reported are not always recorded in police files, often not producing a conviction, “and rarely result in incapacitation.”341As Aboriginal women’s experiences of victimization are generally underreported to police, the PSRs of Aboriginal women offenders may often signify the first time these experiences enter the consciousness of the criminal justice system. This is significant to how Aboriginal women’s histories of victimization are understood and shaped in judicial reasoning in sentencing decisions, because these histories are often substantial, having accumulated before the women come into conflict with the law. That is, Aboriginal women’s experiences of violent victimization become apparent to state institutions when the women themselves are sentenced as offenders, some time after the continuum has been impelled into motion. 336  Ibid. Ibid. at 22-3. 338 Brownridge, supra note 325 at 366. 339 Kuokkanen, supra note 291 at 81. 340 Juristat: Brennan, Violent Victimization of Aboriginal Women, supra note 30 at 9. 341 Kim Pate, “Advocacy, Activism and Social Change for Women in Prison” Canadian Woman Studies 25: 3,4 (Summer 2006) 81 at 82. [Pate, “Advocacy, Activism and Social Change”] 337  71 Any discussion of the victimization of Aboriginal women must address missing and murdered women in Canada, as they are disproportionately Aboriginal women. Many of these women have been pushed out of (“structurally dislocate[ed]”342 from) safe social spaces, and in the survival street sex trade many have “suffered some tragic life event that led them to the streets.”343 The data within Statistics Canada’s General Social Survey regarding violence against Aboriginal women only include the violent crimes of sexual assault, robbery, and physical assault, but do not include missing and murdered women.344 To address these lacunae and to give voice to the stories of silenced women, the Sisters in Spirit initiative within the Native Women’s Association of Canada (NWAC) reported in 2010 on its review of 740 cases of missing and murdered women spanning the twenty years prior. Within these cases, Sisters in Spirit report that 582 involve Aboriginal women.345 Of those 582 cases, 20% are missing women and girls; 67% died from homicide or negligence; 4% police have dismissed as non-criminal cases but continue to be considered suspicious by the women’s support networks; and the circumstances of 9% of the cases remain unclear.346 Despite the already troubling scope of these findings, Sisters in Spirit cautions that these numbers may be conservative and the extent of these forms of violence against Aboriginal women is likely much wider.347 Of the women the research did identify as Aboriginal, over half of the women were young (under age 31).348 While the project could only obtain family information for about a third of the total 582 women, most of these women were mothers, which Sisters in Spirit notes produces  342  DeHart, supra note 267 at 1370. Larry Campbell, Neil Boyd, & Lori Culbert, A Thousand Dreams: Vancouver’s Downtown Eastside and the Fight for its Future (Vancouver: Greystone Books, 2009) at 142. 344 Juristat: Brennan, Violent Victimization of Aboriginal Women, supra note 30 at 9. 345 NWAC, “What Their Stories Tell Us”, supra note 22 at 17. 346 Ibid. at 18. 347 Ibid. at 17. 348 Ibid. at 23. 343  72 intergenerational effects in the loss experienced by their children.349 Most of the incidents happened in urban areas of Western Canada, although the cases were distributed across Canada. 350 While almost half of the cases studied remain unsolved, 351 of cases containing information about the offender, Sisters in Spirit reports that overwhelmingly the offenders are men, 352 both Aboriginal and non-Aboriginal men, 353 and in the context of many types of relationships.354 Finally, while information was incomplete about the victims and any sex work involvement (this information was only available for about 25% of the 582 women), there was some prevalence of sex work.355 Sisters in Spirit is careful to note that sex work is not causally related to these women becoming missing or murdered, but instead that “many women arrive at that point in the context of limited options and after experiencing multiple forms of trauma or victimization.”356 This depiction reflects my interpretation of the victimization-criminalization continuum. Sisters in Spirit locates the problem of missing and murdered Aboriginal women in the aftermath and continued effects of colonization, which necessitates attention to traumas faced by Aboriginal men too (and not just women), because it is all interconnected.357 2.6 Gendered intersections in the criminalization of Aboriginal women As victimization functions to displace women from the social institutions that support and connect us to each other, it further marginalizes women who are already marginalized within a confluence of intersectional disadvantages. Some feminists have exposed the limits of intersectionality to the feminist project because it “tells us little about the wider context in which 349  Ibid. at 24. Ibid. at 25-7. 351 Ibid. at 27. 352 Ibid. at 30. 353 Ibid. 354 Ibid. 355 Ibid. at 31. 356 Ibid. 357 Ibid. at 33. 350  73 such experiences are produced, mediated and expressed”358 and specifically is not sufficiently instructive about how inequalities form or the “relations of subordination” in which they are produced. 359 However, intersectionality still assists in thinking about the sentencing of Aboriginal women. Its utility is evident in Gillian Balfour’s argument that colonization has created uniquely vulnerable conditions for Aboriginal women to be victimized, contributing to the uneven application and effects of the 1996 sentencing amendments for Aboriginal men versus Aboriginal women, and permitting the “incarceration spiral”360 of Aboriginal women to persist. Identifying the dissonance between sentencing practices that have restorative underpinnings and the goal to address the overincarceration of Aboriginal peoples (s. 718.2(e) and s. 742.1) and Aboriginal women’s escalating imprisonment rates, Gillian Balfour explores “the exclusion of women’s narratives of violence and social isolation in the practice of sentencing law.”361 In the 1980s and 90s, the federal government prompted Canadian police departments to use mandatory charging policies for domestic violence calls to address violence against women, except the incidental effect became that marginalized women (often racialized and poor) were increasingly charged within these policies too. 362 Often Aboriginal women (particularly in remote areas) did not receive proper police responses when they sought assistance for the violence to which they were subjected in their relationships, which sometimes resulted in their being later charged for their own violence in self-defence.363 Balfour also notes that Aboriginal women living on reserves are charged in much higher proportions than 358  Conaghan, supra note 287 at 29. Ibid. at 41. 360 Balfour, “Falling Between the Cracks”, supra note 17 at 115. 361 Ibid. at 102. 362 Ibid. at 103. For a study of how mandatory charging policies for domestic violence police calls in the United States has had similar deleterious impacts on women, see e.g. Muftic, Bouffard, & Bouffard, supra note 234. 363 Balfour, “Falling Between the Cracks”, supra note 17 at 103. 359  74 Aboriginal women living off-reserve.364 Balfour situates Aboriginal women’s vulnerability to victimization within processes of colonization, describing that the “legacy of colonialist policies such as the reserve system and residential schools, as well as the destruction of traditional economies and cultural institutions, have created such conditions.”365 Balfour characterizes the mandatory charging policies as retributive strategies that fail to respond to feminist concerns and fail to protect Aboriginal women.366 However, restorative sentencing practices included in the 1996 sentencing amendments have also failed to benefit Aboriginal women. Noting that Aboriginal women’s rates of incarceration are increasing at a greater rate than those of Aboriginal men, Balfour suggests that these amendments have produced gendered effects.367 As a result, Balfour writes that there is a “fault line”368 between retributive and restorative justice policies and Aboriginal women have “fallen between the cracks,”369 because neither punishment philosophy has managed to reduce the overrepresentation of Aboriginal women in the system. Balfour describes these issues as “the confluence of victimization, criminalization, and incarceration of Aboriginal women”370 Significantly, Balfour argues that the systemic and background factors required for consideration by Gladue should include gendered understandings of violence experienced by Aboriginal women, but are not sufficiently recognized as such in sentencing decisions.371 For example, she examines the transcripts from Gladue and finds that the evidence of domestic abuse experienced by Jamie Gladue was not taken into account on sentencing whereas Gladue’s own  364  Ibid. at 104. Ibid. at 115. 366 Ibid. at 104. 367 Ibid. at 105. 368 Ibid. at 102. 369 Ibid. at 116. 370 Ibid. at 114. 371 Ibid. at 113. 365  75 violence (for which she was charged) was aggravating.372 Moreover, the Crown dismissed Gladue’s own experiences of violence within her relationship, and the trial judge supported this erasure. 373 I discussed in Chapter 1 the frequency with which the violence committed by Aboriginal women sentenced in the decisions I consulted is aggravating under the Code, but is not situated within the context of their own (often extensive) experiences of abuse. To respond to these problems, Balfour suggests that defence counsel must change their “lawyering strategies” such that they actively engage with Aboriginal women’s histories of victimization and incorporate these histories as gendered systemic and background factors that must be considered within the s. 718.2(e) analysis.374 However, for these strategies to be effective, there must be meaningful alternatives to incarceration available. 2.7 Revisiting the colonization that never left I discussed colonization in Chapter 1, and will expand here. Douglas A. Brownridge explains that “[c]olonization theory essentially argues that the problems faced by many Aboriginal peoples have their roots in Aboriginal peoples’ historical experiences.” 375 As Aboriginal peoples continue to suffer the effects (and ongoing manifestations) of colonization, understandings of these processes must inform criminal justice laws and policies affecting Aboriginal peoples. Juristat notes that some researchers contend “that the long-term effect of colonization has been the marginalization of Aboriginal peoples, which is reflected in high unemployment rates, low levels of education, low income and inadequate living conditions,”376 and Brownridge references research connecting substance abuse to the “the social and cultural  372  Ibid. Ibid. at 114. 374 Ibid. at 115. 375 Brownridge, supra note 314 at 355. 376 Juristat: Brzozowski, Taylor-Butts & Johnson, Victimization and Offending, supra note 22 at 20 n 5. 373  76 distress of Aboriginal peoples’ past and continuing colonization.”377 All of these marginalizing effects have been correlated with both victimization and criminalization. Processes and effects of colonization are felt both for Aboriginal peoples living in urban environments as well as those living on reserve, as recognized in the Gladue proclamation that alternatives to incarceration must be explored for Aboriginal peoples living in urban, rural, and reserve settings378 because s. 718.2(e) applies to all Aboriginal peoples irrespective of where they live.379 The vast majority of Aboriginal peoples live off-reserve in urban centres today380 (in larger numbers in Western Canada), 381 often because their communities lack necessary support to care for their basic needs, especially health and social services. 382 For many Aboriginal peoples, this urbanization carries with it feelings of isolation and alienation from their cultures, whilst often failing to convey access to the resources and services needed.383 However, some authors also point out that Aboriginal peoples living in cities “actively make the urban place their space” 384 (such as through participating in friendship centres), 385 and that it is essentializing and misrepresentative to confine Aboriginal experiences to more traditional, stereotypical settings.386 Instead, Aboriginal communities and individual and collective identities  377  Brownridge, supra note 325 at 365. Gladue, supra note 15 at para. 84. 379 Ibid. at para. 91. 380 Cindy Blackstock et al., Keeping the Promise: The Convention on the Rights of the Child and the Lived Experiences of First Nations Children and Youth (Ottawa: First Nations Child & Family Caring Society of Canada, 2004) at 47. [Blackstock et al.] 381 Ibid. at 46. 382 Ibid. at 44. 383 Ibid. at 49. 384 Heather A. Howard & Craig Proulx, “Transformations and Continuities: An Introduction” in Heather A. Howard & Craig Proulx, eds., Aboriginal Peoples in Canadian Cities: Transformations and Continuities (Waterloo: Wilfred Laurier University Press, 2011) 1 at 4. [Howard & Proulx, “Transformations and Continuities”] 385 For a discussion of community-building through Aboriginal friendship centres in cities, see Heather A. Howard, “The Friendship Centre: Native People and the Organization of Community in Cities” in Heather A. Howard & Craig Proulx, eds., Aboriginal Peoples in Canadian Cities: Transformations and Continuities (Waterloo: Wilfred Laurier University Press, 2011) 87. [Howard, “The Friendship Centre”] 386 Howard & Proulx, “Transformations and Continuities: An Introduction”, supra note 384 at 8. 378  77 shift, change, and may be amorphous.387 Nonetheless, despite these positive ways of reasserting control and reclaiming their identities, the overrepresentation of Aboriginal peoples in prisons is a stark reminder that their communities continue to suffer the effects of colonization. I will discuss aspects of colonization below, although an exhaustive examination of the colonization of Aboriginal peoples exceeds the scope of this thesis. The government’s forced relocation of Aboriginal communities is one of the many events that relegated Aboriginal peoples to the margins. Colonization was executed without consultation, and practices including these forced relocations of Aboriginal communities worsened a “decline in living standards, social and health problems, and a breakdown of political leadership.” 388 The Royal Commission on Aboriginal Peoples (RCAP) reports that the relocations “must be seen as part of a broader process of dispossession and displacement, a process with lingering effects on the cultural, spiritual, social, economic and political aspects of people's lives.” 389 This “may have contributed to the general malaise gripping so many Aboriginal communities and to the incidence of violence, directed outward and inward.”390 In one of the most damaging forms of colonialist policy, the Canadian government and Christian churches jointly began the residential school system in the 1800s. Closures began in the 1940s391 but the final residential school closure was not until 1996.392 During this period, many thousands of Aboriginal children were effectively “legally kidnapped,” and forced into residential schools – often far away from home, and for many years.393 NWAC reports that  387  Ibid. at 15. RCAP, Report: Looking Forward, Looking Back, supra note 43. 389 Ibid. 390 Ibid. 391 Blackstock et al., supra note 380 at 153. 392 NWAC, “What Their Stories Tell Us”, supra note 22 at 7. 393 Lindy-Lou Flynn, “Plains Indian Ways to Inter-tribal Cultural Healing in Vancouver” in Heather A. Howard & Craig Proulx, eds., Aboriginal Peoples in Canadian Cities: Transformations and Continuities (Waterloo: Wilfred Laurier University Press, 2011) 227 at 228. [Flynn] 388  78 across the period in which residential schools were active, 150 000 Aboriginal children attended.394 Clearly, it became a painfully entrenched part of Aboriginal societies.395 Replete with horrific neglect and abuse of every sort (even preventable deaths),396 these institutions attempted to eradicate Aboriginal culture 397 and Aboriginal communities were left without resources to attempt to cope with the various traumas.398 This process of forced assimilation profoundly disrupted Aboriginal family structures, community coherence, educational systems, and cultural integrity.399 Cherokee scholar Andrea Smith highlights “the link between state violence and interpersonal violence” through the example of the residue of abuse from “boarding schools.”400 Roland Chrisjohn, Sherri Young, and Michael Maraun powerfully argue that the “Indian Residential Schools were genocide.” 401 They assert that the forced transfers of Aboriginal children, suppression of Aboriginal culture, forced assimilation practices, and the infliction of serious mental harm on Aboriginal peoples as members of a group constitute genocide because “cultural genocide is genocide.”402 In turn, Chrisjohn, Young, and Maraun contend “the federal government of Canada bears primary responsibility for adopting and implementing an explicitly genocidal policy,”403 although they also locate responsibility with the 394  NWAC, “Arrest the Legacy: From Residential Schools to Prisons” (2012), online: Native Women’s Association of Canada http://www.nwac.ca/gendering-reconciliation at 1 (in Insert 1). [NWAC, “Arrest the Legacy”] 395 For a list of the residential schools the Truth and Reconciliation Commission included in its mandate, see Truth and Reconciliation Commission of Canada, “Residential School Locations” Truth and Reconciliation Commission of Canada, online: Truth and Reconciliation Commission of Canada http://www.trc.ca/websites/trcinstitution/index.php?p=12. Note that while there are approximately 140 institutions listed and it may be a complete or near-complete list, this may not comprise an exhaustive list of residential schools as it only represents those considered by the Truth and Reconciliation Commission. 396 While these abuses resist categorization because they are interrelated, for a list of such abuses see for example Roland Chrisjohn, Sherri Young, & Michael Maraun, The Circle Game: Shadows and Substance in the Indian Residential School Experience in Canada (Syilx territory on the Penticton Indian Reserve, BC: Theytus Books, 2006) at 49-51. [Chrisjohn, Young, & Maraun] 397 Blackstock et al., supra note 380 at 153. 398 Ibid. at 154. 399 NWAC, “What Their Stories Tell Us”, supra note 22 at 7. 400 Kuokkanen, supra note 291 at 81. 401 Chrisjohn, Young, & Maraun, supra note 396 at 63. 402 Ibid. at 60-3. 403 Ibid. at 61.  79 churches.404 The widespread relationship rupture and suppression of Aboriginal languages and cultures continues to have corrosive effects for Aboriginal peoples and their communities. These continued effects are often called “intergenerational effects” or “intergenerational trauma.”405 The Indian Act was enacted in 1876, acting as a legal instrument through which Aboriginal peoples could be controlled, over everything from their very membership in Aboriginal nations (by creating status laws that excluded Aboriginal peoples who do not meet “legislated identity criteria”406) to their lands and resources.407 Historically, this statute had many oppressive features such as its attempts to suppress Aboriginal culture by such provisions as that prohibiting potlatches and other ceremonies,408 and restricting the mobility of Aboriginal peoples.409 The status laws have been particularly deleterious for Aboriginal women whose status became contingent on their marital state.410 Membership status is significant for Aboriginal peoples on a number of levels, including the impacts on their senses of identity and the legal repercussions (as the Indian Act connects status to Aboriginal rights and title).411 Without suggesting that all Aboriginal societies were devoid of gender oppression before colonialism,412 the Indian Act also said to have “abolished the traditional matriarchal society for a patriarchal one,”413 disrupting 404  Ibid. at 51. NWAC, “What Their Stories Tell Us”, supra note 22 at 8. 406 Howard & Proulx, “Transformations and Continuities”, supra note 384 at 6. 407 Flynn, supra note 393 at 228. 408 Ibid. at 229. 409 Sadie Donovan, “Challenges to and Successes in Urban Aboriginal Education in Canada: A Case Study of Wiingashk Secondary School” in Heather A. Howard & Craig Proulx, eds., Aboriginal Peoples in Canadian Cities: Transformations and Continuities (Waterloo: Wilfred Laurier University Press, 2011) 123 at 126. 410 For example, David R. Newhouse writes “[m]y mother was born a status Indian, became a non-status Indian upon enfranchisement, and became a status Indian again upon marriage to my father, a status Indian.” He also describes how he continues to be affected, because “[a]s a result of the arcane membership rules of the Indian Act, I am considered to have 50% Indian blood, 50% non-Indian blood.” [“Urban Life: Reflections of a Middle-Class Indian” in Heather A. Howard & Craig Proulx, eds., Aboriginal Peoples in Canadian Cities: Transformations and Continuities (Waterloo: Wilfred Laurier University Press, 2011) 23 at 29. 411 Regna Darnell, “Nomadic Legacies and Contemporary Decision-Making Strategies between Reserve and City” in Heather A. Howard & Craig Proulx, eds., Aboriginal Peoples in Canadian Cities: Transformations and Continuities (Waterloo: Wilfred Laurier University Press, 2011) 39 at 41-2. [Darnell] 412 Green, “Taking Account of Aboriginal Feminism”, supra note 335 at 23. 413 Ibid. at 22. 405  80 traditional Aboriginal social orders and reducing the standing of Aboriginal women.414 The Indian Act remains in existence today,415 retaining much of its oppressiveness and power over Aboriginal peoples “from cradle to grave”  416  and requiring Aboriginal  communities/nations to “still face up to the essentialized legal norms of Indian-ness perpetuated in the Canadian Indian Act.”417 For example, while 1985 amendments to the Indian Act through Bill C-31 permitted the reinstatement of membership status to Aboriginal women whose status was previously rescinded, if an Aboriginal woman who had married a non-Aboriginal man reclaims this status and they have a child who also marries a non-Aboriginal person, her child loses Aboriginal status.418 Additionally, the government did not provide the resources necessary to reserve communities to be able to support the increased numbers of Aboriginal peoples that returned after the reinstatement of their status following these amendments, adding strain to already compromised communities.419 The Indian Act was amended in 1951, permitting provincial and territorial child welfare authorities to remove Aboriginal children from their homes and reassign them to generally nonAboriginal families, causing dislocation, cultural loss, and sometimes abuse.420 Thousands of Aboriginal families were subjected to this upheaval, particularly between 1960 and 1980.421 Even against this history, NWAC reported in 2010 that there are more Aboriginal children in  414  See e.g. St. Denis, supra note 290 at 37-8. However, there is some debate about whether traditional Aboriginal societies actually represented gender equality. See for example LaRocque, supra note 264 at 55. 415 Indian Act, supra note 48. 416 Flynn, supra note 393 at 229. 417 Marianne Ignass, “‘Why Is My People Sleeping?’ First Nations Hip Hop between the Rez and the City” in Heather A. Howard & Craig Proulx, eds., Aboriginal Peoples in Canadian Cities: Transformations and Continuities (Waterloo: Wilfred Laurier University Press, 2011) 203 at 204. 418 Darnell, supra note 411 at 45. 419 Howard, “The Friendship Centre”, supra note 385 at 102. 420 NWAC, “What Their Stories Tell Us”, supra note 22 at 8. 421 Ibid.  81 state custody than ever before.422 In another form of Aboriginal overrepresentation, Aboriginal children are vastly disproportionately represented within the number of overall Canadian children in care.423 Sisters in Spirit identify that child welfare policies must be revisited because Aboriginal children are generally removed into care for different reasons than are non-Aboriginal children – predominantly for neglect (more frequently than for abuse), and stemming from substance misuse, housing shortages and inadequacies, and poverty generally. 424 It is necessary to recognize that these phenomena (substance abuse, poor housing, and poverty writ large) combine in different ways for Aboriginal communities than other, non-Aboriginal communities struggling with the same problems. This is where ongoing processes and effects of colonization have distinct, intersectional impacts. For example, there is research demonstrating that controlling for these issues (i.e., when these social ills are found in other families and communities), Aboriginal families and communities remain more likely than non-Aboriginal families and communities to be subjected to intervention by child welfare authorities.425 Blackstock et al emphasize “the institutionalization of Aboriginal children is a profound concern for Aboriginal peoples.”426 I would add that this is also a profound concern for the criminal justice system, as the intergenerational trauma and fragmentation in Aboriginal communities contributes to the criminalization of Aboriginal peoples. Additionally, there is research indicating a connection between being removed into state care in childhood with coming into conflict with the law.427 This research also suggests a relationship between being  422  Ibid. Ibid. 424 Ibid. 425 Blackstock et al., supra note 380 at 159. 426 Ibid. at 155. 427 NWAC, “What Their Stories Tell Us”, supra note 22 at 10. 423  82 involved in state child custody with later becoming involved in sex work.428 Further, it should be spelled out that in both of these two institutional structures (the state child custody system and the criminal justice system, particularly its prisons), Aboriginal peoples continue to be alarmingly overrepresented, and both structures involve some of the most marginalized people in our society. 2.7.1 Criminalization: A branch or strategy of colonization? Patricia A. Monture argues that “[c]riminalization of Indigenous populations, which results in the present rates of overrepresentation, is in fact a strategy of colonialism and it is therefore seen globally.” 429 I am somewhat conflicted about the term “strategy” because it implies deliberateness, defined as “a plan, method, or series of maneuvers or stratagems for obtaining a specific goal or result.” 430 Historically, there have definitely been government-designed strategies (such as those discussed above) that have been directed toward various abhorrent goals, including that of assimilation and the cultural destruction of Aboriginal peoples, ostensible ownership of the land comprising the territories of Aboriginal nations, and control over Aboriginal peoples. NWAC describes such strategies as “by all definitions, cultural genocide,”431 and these strategies continue to have reverberating effects in the lives of Aboriginal peoples, and this is certainly evident in the mass poverty within Aboriginal communities and the overrepresentation of Aboriginal peoples in the justice system, among other definitive indicators. However, it seems that these continuing problems function more as tidal ripple effects than express strategies in the way that previous iterations of colonization seem (such as the residential  428  Ibid. Patricia A. Monture, “Confronting Power: Aboriginal Women and Justice Reform” Canadian Woman Studies 25:3,4 (Summer 2006) 25 at 26 [emphasis added]. [Monture, “Confronting Power”] 430 Dictionary.com, online: Dictionary.com http://dictionary.reference.com/., s.v. “strategy”. 431 NWAC, “Arrest the Legacy”, supra note 394 at 4 (in Insert 1). 429  83 school system). Certainly, the criminalization of Aboriginal peoples represents a manifestation of how processes of colonization are extended. That is, processes of colonization seem to be maintained in two primary ways: initially because the widespread, pervasive poverty effected through colonization creates conditions that make Aboriginal peoples vulnerable to criminalization, and subsequently because the effect of criminalization (particularly incarceration) is to exacerbate problems association with colonization (such as continued cultural alienation and the ongoing disruption of Aboriginal families and fragmentation of their communities). NWAC emphasizes the relationship between the cultural/familial devastation characteristic of residential schools and that inherent in the overincarceration of Aboriginal peoples: “Canadian correctional institutions continue the legacy of separating Aboriginal children from parents, while holding them in environments where racism and discrimination thrive.”432 The issue of whether criminalizing practices are representative of strategies of colonization is perhaps difficult to affirm in the face of such initiatives as the government legislating s. 718.2(e) to ameliorate the overincarceration of Aboriginal peoples. Equally, however, the government continues to undercut those sentencing reforms with the 2007 and 2012 conditional sentencing amendments. While those regressions may be motivated by an ostensible concern for victims (i.e., not directed at Aboriginal peoples), they will likely have the effect of contributing to the further overincarceration of Aboriginal peoples. It may be helpful to consider that Sisters in Spirit decries the child welfare system’s apprehension strategy inherent in removing children from Aboriginal families for its inattention to the long-term consequences of this practice.433 Sisters in Spirit describe this as a “focus”434 of  432 433  Ibid. NWAC, “What Their Stories Tell Us”, supra note 22 at 9.  84 state custodial services and do not use the term “strategy,” however as these removals represent action predicated on an institutional focus, they should be regarded as a form of strategy. In this light, perhaps it is useful to consider incarceration as another form of strategy, at least because it represents an institutional focus wherein the mode of dealing with social problems (with colonialist foundations) in Aboriginal communities is to remove people from the community and confine them. This is not merely a matter of “ask[ing] what it is about crime that makes punishment an appropriate response to it,”435 but rather “what about the crime of Aboriginal peoples makes incarceration an appropriate response” – a question to which Gladue responds following s. 718.2(e) that “there is something different about aboriginal offenders which may specifically make imprisonment a less appropriate or less useful sanction.”436 Yet despite this legislative and judicial pushback signaling that the overrepresentation of Aboriginal peoples in prisons is a “crisis”437 that must be addressed from a number of avenues, not least at sentencing, Aboriginal peoples continue to be disproportionately represented in Canadian prisons. Monture argues that imprisonment and colonialism share “[p]ower, control, and isolation” as “key components” that “are now embedded.” 438 Perhaps continued overincarceration in the face of attempts at the opposite speak to processes of institutionalization that persist independently of discrete law and policy changes because they become inveterate – hardened, but retaining momentum within these structures. This kind of institutionalization is built into the continued overincarceration of Aboriginal peoples, evidenced by its resistance to respond to attempts to address the problem. It is conceptually helpful to consider Kimberlé  434  Ibid. R. A. Duff & D. Garland, “Introduction: Thinking about Punishment” in Antony Duff & David Garland, eds., A Reader on Punishment (Oxford: Oxford University Press, 1994) 1 at 4. 436 Gladue, supra note 15 at para. 37. 437 Ibid. at para. 64. 438 Monture, “Confronting Power”, supra note 429 at 28. 435  85 Crenshaw’s depiction of intersectionality here. Crenshaw suggests that forms of subordination such as classism, racism, and patriarchy are enacted in repetitive ways that leave tracks through which the “traffic” of power and decision-making travel, creating patterns and conditions where these dynamics are replicated and become systemic.439 This framework is useful to understand how legal and policy processes and decisions become institutionalized, solidified, and resistant to change. It does appear that there have been various institutional practices that have predominated in different historical periods and that (functionally) seem to supplant each other as the primary modes of retaining control over Aboriginal peoples. That is, for example, Lindy-Lou Flynn writes that as the pattern of removing Aboriginal children into residential schools began to dissipate in the 1950s, the child welfare system “quickly rose up to take its place.”440 Whether because of a form of “strategy” or merely that gutters in the institutional landscape are resistant to being redirected and policies flow through these channels, there have been governmental forms of control over Aboriginal peoples that preponderate in any given time. Perhaps the disproportionate criminalization and incarceration of Aboriginal peoples is one of the primary institutionalized ways through which Aboriginal peoples are controlled in today’s Canada, and perhaps this effect of continued forms of control is more significant than whether it is designed as a direct or indirect strategy. Finally, perhaps it is unnecessary to attempt to definitively conclude whether criminalization is an institutional strategy. For example, referring to the “motives” of the developers of the residential school system, Chrisjohn, Young, and Maraun argue that even they could be known, they “don’t explain anything”: “[t]here is no need to posit  439  Kimberlé Crenshaw, “A Tale of Two Movements: Intersectionality, Gender, and the Prison Industrial Complex” (Lecture delivered at the UCSB Multicultural Centre Theatre, 18 May 2006), Regents of the University of California, online: youtube http://www.youtube.com/watch?v=d1v9E83yTNA. 440 Flynn, supra note 393 at 229.  86 and argue about the personal attitudes, values, morals, or ‘whatevers’ of these men, when the political, economic, social, and legal inducements for them to act in a particular manner are so crystal clear.”441 The criminalization of Aboriginal peoples is much muddier and more complex now, because the government and judiciary have both framed it as an appalling national problem. However, the institutionalization of ways of controlling Aboriginal peoples functions as colonization, whatever its intents. For example, the Indian Act sanctioned the removal of Aboriginal children into state care, and this should be regarded as an institutional strategy of colonization. Because there were three times as many Aboriginal children in state care in 2004 as at the peak of the residential school system442 (after the period in which such child removal was a more express policy), it is clear that the strategy of colonization that ostensibly reached its height between the 1960’s and the mid-1980’s (the “Sixties Scoop”)443 has continued (and accelerated) in much the same form through today. In this respect, perhaps it does not matter whether we call criminalization a “strategy” of colonization or not. Perhaps it only matters that Aboriginal peoples continue to suffer similar (and intergenerational) effects from today’s policies and laws. Whether Aboriginal peoples experience an extension of colonization strategies or are marginalized by different strategies that convey similar effects (by exacerbating longstanding problems or creating new problems), in the end it all begins to blur together. Above thinking about whether criminalization is a strategy of colonization, it may be more helpful to think about how colonization (as a series of institutionalized processes) is resistant to developments in law that seek but fail to produce decolonizing ends. Deborah Bird Rose’s  441  Chrisjohn, Young, & Maraun, supra note 396 at 30. Blackstock et al., supra note 380 at 154. 443 NWAC, “What Their Stories Tell Us”, supra note 22 at 8. 442  87 concept of “deep colonizing”444 practices is instructive here. Rose explores how institutions that are motivated by decolonizing objectives or organizing principles (such as truth and reconciliation commissions) can actually bolster the very processes of colonization they strive to dismantle.445 Rose writes in the Indigenous land claim context in Australia, examining one such claim to find that the experiences of Indigenous women were not properly considered in the institutional process of collecting evidence about their society, and the contributions they did make were required in a form that was in contradistinction to the gender norms within their community.446 This has the result of denying them full participation in otherwise decolonizing institutions, and thereby compounding the very processes of colonization challenged. Applying Rose’s analysis to the overincarceration of Aboriginal peoples in Canada, s. 718.2(e) and Gladue are together a manifestation of the institutional decolonizing strategy to ameliorate the overrepresentation of Aboriginal peoples in prisons, and over fifteen years after the implementation of the 1996 sentencing amendments Aboriginal peoples continue to be vastly overrepresented in the system. Following Rose’s example, perhaps one of the intrinsic problems with these decolonizing strategies is the minimal opening for meaningful consultation with Aboriginal communities (such as through sentencing circles) and the operation of these strategies within the very adversarial legal system in which Aboriginal peoples are overrepresented (as opposed to equally incorporating Aboriginal justice traditions, or greater movement toward Aboriginal self-government). Nonetheless, I would argue that at minimum colonization certainly has cut deep tracks that current socio-legal practices are routed through, and deep enough that even attempts to divert them (such as s. 718.2(e)) have not yet proved successful. 444  Cited in Elena Marchetti, “Intersectional Race and Gender Analyses: Why Legal Processes Just Don’t Get It” (2008) 17(2) Social & Legal Studies 155. 445 See the discussion in Elena Marchetti, “The Deep Colonizing Practices of the Australian Royal Commission into Aboriginal Deaths in Custody” (2006) 33(3) Journal Of Law And Society 451 at 461-2. 446 Ibid. at 462.  88 Perhaps Monture’s most important point vis-à-vis criminalization as a strategy of colonization is that criminality by Aboriginal peoples cannot be reduced to individualistic understandings but must instead be situated within their colonialist past. 447 In this sense, colonization is reinforced by criminalization. Other indigenous activists expand that “such things as mental illness, alcoholism and suicide, for example, are not about psychological and individualized failure but about colonization or lack of collective self-determination.”448 Monture explains that widening the lens past the individual “is not intended to make victims of Aboriginal people or of all prisoners but rather its purpose is to provide a necessary and historic, contextual and structural analysis of the problem at the centre of the question being examined.”449 This analysis is fundamental to the Gladue framework. For Aboriginal women, colonization has produced conditions in which they are “affected by higher levels of poverty, lower educational attainment, higher unemployment, poorer physical and mental health and lack of housing”450 – all of which are further strained for Aboriginal single mothers.451 The victimization of Aboriginal women must be contextualized against the backdrop of colonization452 – critical in the face of what Monture describes as the lack of a “sustained [Canadian] analysis” of the relationship “between colonialism and the oppression of women.”453  447  Monture, “Confronting Power”, supra note 429 at 27. Tuhiwai Smith, supra note 35 at 153. 449 Ibid. 450 NWAC, “What Their Stories Tell Us”, supra note 22 at 11. 451 Ibid. at 12. 452 Anna Hunter, “The Violence that Indigenous Women Face” Canadian Dimension 39:2 (March/April 2005) 34 at 34. 453 Monture, “Confronting Power”, supra note 429 at 26. Monture credits the work by the Task Force on Federally Sentenced Women [see The Task Force on Federally Sentenced Women, “Creating Choices: The Report of the Task Force on Federally Sentenced Women” (April 1990), online: Correctional Service of Canada http://www.cscscc.gc.ca/text/prgrm/fsw/choices/toce-eng.shtml. [TFFSW, “Creating Choices”] for modeling an example of how research into social problems can centrally position colonialism [at 28]. 448  89 2.8 The tension within and slide from Gladue factors to risk factors to treatment Reviewing eighteen judgments sentencing Aboriginal women from 2005 to 2006,454 Toni Williams seeks to understand how Aboriginal women continue to be overincarcerated despite the mutual goals of s. 718.2(e) and the conditional sentencing regime to reduce reliance on imprisonment. Williams argues that because s. 718.2(e) effectively requires judges to identify and weigh such factors as “emotional trauma, familial failings and community dysfunction” through application of the Gladue test, this provision operates to import a contextualized, intersectional analysis into the sentencing process.455 However, Williams concludes that despite feminists’ best intentions for the use of intersectionality, the “intersectionalized constructions of Aboriginal women” in the cases “may not reliably shield them from imprisonment in part because of how courts have integrated intersectionality claims into decision-making processes that are organized around controlling risk.”456 That is, calculations of the degree of risk presented by the offender (risk of reoffence, risk to public safety – and in the prison context, risk to institutional security) have assumed increasing prominence in penal policies and in the sentencing process,457 and the factors used to assess those levels of risk are largely the same as those engaged by the Gladue analysis.458  454  See Toni Williams, “Intersectionality Analysis in the Sentencing of Aboriginal Women in Canada: What Difference Does it Make?” in Emily Grabham et al, eds., Intersectionality and Beyond: Law, Power and the Politics of Location (New York: Routledge-Cavendish, 2009) 79. [Williams, “Intersectionality Analysis”] 455 Ibid. at 94. 456 Ibid. 457 Maurutto & Hannah-Moffat, “Assembling Risk”, supra note 140 at 438. Paula Maurutto and Kelly HannahMoffat write that risk assessment based in standardized, ostensibly objective criteria, “[a]ctuarial risk,” “has taken on a hegemonic dominance that supercedes other models of governance, such as welfare and disciplinary forms of regulation.” 458 Williams, “Intersectionality Analysis”, supra note 454 at 80, 92.  90 The concept of risk assessment manifests in different forms in the sentencing domain than in prison, although ultimately both are concerned with ensuring public safety. 459 On sentencing, judicial decisions are informed by risk assessment instruments including projections of the risk of reoffence in PSRs 460 and psychiatric reports, which assist particularly with determining whether (and for what duration) an offender must be separated from society. “Risk” operates in prison variously, but the most obvious form of risk management occurs when correctional authorities assess prisoners through a series of standardized questions to determine what level of security is needed to contain any threat they are deemed to pose. This takes place at both federal461 and provincial462 institutions. It should also be noted that against the increased prevalence of risk instruments and analysis in the justice system (particularly in the prison setting), the idea of risk itself might itself be dissonant with Aboriginal knowledge and worldviews. Patricia Monture-Angus writes that 459  In the sentencing process, public safety is always germane to the determination of the sanction and is an inherent concern in the sentencing principle that offenders must be separated from society where necessary (s. 718(c) of the Code). In the federal prison domain, public safety is an express consideration within penitentiary placement decisions (Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 28(a). [CCRA]) and is also engaged when correctional authorities decide whether to assign a minimum, medium, or maximum security classification designation (CCRA, ibid. at s. 30; Corrections and Conditional Release Regulations, SOR/92-620, s. 18.). 460 For the provision of the Criminal Code of Canada dealing with PSRs, see Criminal Code, supra note 14 at s. 721. 461 For the Policy Bulletin and scoring tables (called the Custody Rating Scale) used by the Correctional Service of Canada to establish where to place each prisoner (in terms of the security level attached to the institution itself) and the level of security each prisoner should be assigned within that institution (minimum, medium, or maximum, involving escalating degrees of isolation and punitiveness), see Commissioner of the Correctional Service of Canada, “Security Classification and Penitentiary Placement: Commissioner’s Directive 705-7 (2010-02-10), online: Correctional Service of Canada http://www.csc-scc.gc.ca/text/plcy/cdshtm/705-7-cd-eng.shtml. For a critical analysis of the increased penal dependence on and fidelity to risk assessments, see e.g. Maurutto & Hannah-Moffat, “Assembling Risk”, supra note 140. For a study of how the standardization of risk assessments obscures gender difference and may be problematic for women prisoners, see Kelly Hannah-Moffat “Gendering Risk at What Cost: Negotiations of Gender and Risk in Canadian Women’s Prisons” (2004) 14(2) Feminism & Psychology 243. [Hannah-Moffat, “Gendering Risk at What Cost”] For a thoughtful argument that the correctional process of assessing risk becomes gendered because women prisoners present different life histories and experience imprisonment differently than men, see Kelly Hannah-Moffat, “Moral Agent or Actuarial Subject: Risk and Canadian Women’s Imprisonment” (1999) 3(1) Theoretical Criminology 71. [Hannah-Moffat, “Moral Agent or Actuarial Subject”] 462 For an example of the factors considered by provincial correctional authorities to inform security classification, see BC Corrections which outlines similar factors as those used at the federal level: Ministry of Justice, “Correctional Facilities in British Columbia: Sentence Management Process” (9 May 2007), online: Government of British Columbia, Corrections http://www.pssg.gov.bc.ca/corrections/in-bc/details/management.htm.  91 risk management “is contrary to how I was raised as an Aboriginal person to think about relationships.”463 Monture-Angus writes that these “individualized instruments” are inherently flawed because they fail to incorporate “the impact of colonial oppression on the lives of” Aboriginal peoples.464 She argues that risk instruments (such as the scales used to help determine a prisoner’s security classification level) do not really measure the risk presented by that person, but instead “merely [affirm] that Aboriginal persons have been negatively impacted by colonialism.”465 Williams suggests that because primary factors evaluated within institutional decisionmaking are alternately Gladue factors in the sentencing process and risk factors in prison machinery, there is dissonance producing a conflict between the goal of Gladue factors to reduce overincarceration and that of penal risk factors to inform the necessary level of punitiveness.466 Moreover, this conflict becomes effectively internalized within sentencing discourses. Judges must navigate between the level of risk and personal needs assessed for the offender (as determined primarily based on the PSR and the judge’s own evaluation) against the Gladue directive to look to alternatives for imprisonment for Aboriginal offenders.467 For example, an offender may be assessed to present a high risk because of her criminal history and substance abuse, which may militate toward a punitive sanction designed to separate the offender from society – whereas this may be in tension with Gladue factors that would formulate these (otherwise “risky”) factors in the context of colonization and might point to the inappropriateness of a prison sanction. Williams asserts that s. 718.2(e) functions as a conduit for intersectional concerns to become retranslated as risk factors, which in turn undercut the ability 463  Monture-Angus, “Women and Risk”, supra note 139 at 26. Ibid. at 27. 465 Ibid. 466 Williams, “Intersectionality Analysis”, supra note 454 at 92. 467 Ibid. 464  92 of s. 718.2(e) to ameliorate the overrepresentation of Aboriginal offenders in prison because elevated risk projections suggest harsher sanctions. In her study, Williams finds that judges making community orders (largely conditional sentence orders) resolve the tension by either formulating sentences that are guided by rehabilitation and reintegration (healing-oriented, including imposing minimal confinement and discretionary conditions) or by focusing on the risk assessed for the offender and amplifying the punitive features of the conditional sentence (such as ordering lengthier sentences with more restrictive terms).468 For some cases in her study in which judges order incarceration, Williams finds that judges paradoxically cast their decisions in a restorative light, focusing on rehabilitation, but then deliver a punitive sanction, while “construct[ing] the prison at least to some extent as a therapeutic environment, a place of safety, healing and growth for a defendant whose life in the community marks her as both victimizer and victimized.”469 I will discuss this trend in Chapter 4. Williams expresses concern that the Gladue analysis facilitates a stereotypical representation of Aboriginal women offenders in which they are “over-determined by ancestry, identity, and circumstances.”470 She writes that sentencing courts translate the intersectional inquiry required by s. 718.2(e) into “[c]laims about Aboriginal women with a simple narrative that constructs Aboriginal families as incubators of risk, Aboriginal communities as containers of risk and the prison as a potential source of healing intervention in the defendant’s life.”471 These judicial discourses about the victimization and criminalization of Aboriginal women are instructive because overemphasis on one of these aspects of women’s pathways can impact sentencing outcomes. Elizabeth Comack writes that the dichotomy some discourses  468  Ibid. at 92-3. Ibid. at 94. 470 Ibid. at 95. 471 Ibid. Also see Williams, “Punishing Women”, supra note 178 at 285. 469  93 construct between victims and offenders is “premised on an individualistic focus” producing a dynamic framing that “victims require therapy and counseling; offenders deserve punishment.”472 Because judges are most directly in a position to determine whether a sentence should be more rehabilitative or punitive, it is helpful to explore whether judicial discourses reflect this dichotomized thinking. To this end, I will discuss how judges understand and represent Aboriginal women offenders’ victimization and criminalization in Chapter 3, and how they respond to these issues in Chapter 4. I will also explore the degree to which the discourses about Aboriginal women offenders in my cases demonstrate an individualistic focus (beyond the necessary individualization of sentencing) at the expense of engaging contextualized understandings of how colonization and community/relational issues impact sentencing. The dynamic in which judges focus on rehabilitation in sentencing reasoning but then order a punitive sanction speaks to how institutional structures become embedded and solidify in ways that are resistant to feminist-inspired initiatives. The fixed nature of such structures, impervious to feminist strategies (or, alternatively, retranslating them such that they act opposite to the goal of women’s equality) was also seen above in Balfour’s discussion of how mandatory charging policies only served to criminalize already marginalized women. Similarly, Colleen Anne Dell, Catherine J. Fillmore, and Jennifer M. Kilty demonstrate how the Correctional Service of Canada has implemented the philosophy of women-centred corrections recommended by the Task Force on Federally Sentenced Women473 in ways that are antithetical to that gendersensitive vision (such as by constructing women’s self-harm as an institutional threat and responding with punitiveness). 474 These examples demonstrate where rigid institutional  472  Comack, “New Possibilities for a Feminism”, supra note 251 at 165. TFFSW, “Creating Choices”, supra note 453. 474 Colleen Anne Dell, Catherine J. Fillmore & Jennifer M. Kilty, “Looking Back 10 Years after the Arbour Inquiry: Ideology, Policy, Practice, and the Federal Female Prisoner” (2009) 89(3) The Prison Journal 286 at 296. 473  94 structures cannot accommodate feminist impulses, which becomes even more troubling as the already limited options available to Aboriginal women on sentencing continue to be curtailed by government conditional sentencing amendments. This idea of feminist concepts being (re/mis)translated when introduced into an institutional and procedural framework that is not itself motivated by feminist concerns is critical to my thinking about how the judges in my study cast and respond to Aboriginal women’s histories of victimization. Parallel to Williams’ analysis, my research suggests that PSRs and associated Gladue factors operate as entry points for judicial cognizance of how these women’s experiences of victimization relate to their criminalization, and how judges resolve these experiences has direct implications on the kind of sanction ordered. The respective histories of Aboriginal women (including violence experienced and committed) are presented to sentencing courts in various forms (such as counsel submissions, judicial notice, and PSRs) that often include recommendations regarding the level of risk that a given offender is likely to pose to the community if given a conditional sentence. The very structure of PSRs in particular renders it difficult to read these women’s backgrounds (including any experiences of victimization) as anything but connected to their offending. 2.9 The pathway to the cases in my study In Chapter 3, I demonstrate that judges sometimes use something of a victimizationcriminalization continuum lens to process and evaluate offenders; at other times judges do not adopt this lens and instead simply deemphasize or bracket past experiences of victimization. When judges do employ a kind of victimization-criminalization lens, they sometimes do so to infer risk (or accord with that in PSRs) and sentence more harshly. Critically, in most cases the women’s histories read and are presented as if their criminalization is related to their experiences  95 of victimization, but judges are informed and respond to these depictions in different ways. Balfour describes that sentencing law functions to exclude “women’s narratives of violence and social isolation,” producing the “disconnect” she describes between “restorative justice sentencing practices” and “the unrelenting coercive punishment of Aboriginal women.” 475 Examining how women’s histories (of victimization, offending, and other) are deployed in the cases gives insights into how they impact sentencing outcomes. To this end, I will explore the cases in my study for what versions of these experiences within Aboriginal women’s lives are presented, and the degree to which judges contextualize these experiences within the systemic and background factors tied to colonization.  475  Balfour, “Falling Between the Cracks”, supra note 17 at 102.  96 Figure 3  “Best for Everyone to Drop Out” (charcoal, with photo)  97 (3) Judicial Engagement with the Victimization-Criminalization Continuum 3.1 Introduction: Criminalized Aboriginal women’s stories of victimization and listening to what sentencing judges hear The histories of victimization of the Aboriginal women sentenced in the cases I have identified become part of judicial reasoning through such instruments as the pre-sentencing report (PSR) and Gladue factors. In this chapter, I explore judicial discourses about the victimization histories of the Aboriginal women in my study. I discuss where these discourses align with and depart from ideas introduced by the victimization-criminalization continuum – such as where judges recognize how experiences of victimization constrain women’s options, and what implications this recognition has in judicial reasoning. I also explore the relationship between the victimization-criminalization continuum and Gladue factors. As histories of victimization generally overlap with Gladue factors, often concepts related to the victimizationcriminalization continuum lens and Gladue factors will be intertwined. However, I suggest that while both the continuum and the Gladue analysis often share facts presented to the courts about Aboriginal women’s lives, the analytical focus of each differs: the victimization-criminalization continuum most directly focuses on gendered vulnerabilities and reactions to victimization, whereas the Gladue analysis most directly focuses on reverberations of colonization (and how that should impact sentencing). In some judgments, the offender’s experiences of victimization are considered in a way that deepens the Gladue analysis by contextualizing these victimizations within colonization. These cases demonstrate a symbiotic relationship between the Gladue and victimizationcriminalization analyses. In other decisions, this relationship is less apparent, such as cases in which the Gladue analysis is either cursory or largely bracketed out of the judgment (the latter, bracketing, transpires where judges note having considered Gladue factors but neglect to explain  98 how or to what effect). In these cases, discourses about victimization and criminalization are more differentiated from the Gladue analysis. The judgments that present more dilute Gladue analyses include judicial minimization of the applicability of Gladue factors where an intelligible connection between the offender’s experience as an Aboriginal woman and her offence has not been established. Such cases illustrate one of the main problems identified by Ipeelee in the postGladue jurisprudence, which clarifies that this connection must not be required in a causal way, but instead simply to contextualize. In these cases where the Gladue analysis is cursory, I examine the balance of the judicial discourse for how the women’s histories of victimization are presented, and how these histories relate to the reasoning about sentence. As discussed in Chapter 2, each of the cases I examine features the sentencing of an Aboriginal woman. While I identified and reviewed 91 cases in total through my various case law searches in online databases, I do not discuss all of them but instead draw out the decisions that most clearly represent themes related to victimization, criminalization, and Gladue factors. In this chapter, I concentrate on those judgments that offer the clearest discourses related to victimization, criminalization, and the Gladue analysis – some of the decisions I discuss below are laudable for their nuanced navigations within these issues, whereas other decisions are hampered by shallower understandings. For the most part, in this chapter I deal with the judgments in a self-contained way, by delving into detail for each case and exhausting that discussion before moving to the next case. While I discuss the below decisions within various identified themes, the structure of my discussion still presents each judgment largely separately. I have chosen this format primarily to retain the individual integrity of each criminalized Aboriginal woman’s life and sentencing narrative. As I explain in Chapter 1, Program Coordinator Shawna Hohendorff at Kindred House  99 (the daytime shelter for street sex workers in Edmonton) has emphasized that her clients felt that institutions with power consider “their particular life stories” peripheral and insignificant.476 Because part of my goal is to foreground the victimization histories of criminalized Aboriginal women such that they are pulled in from that periphery and recognized for their intrinsic significance, I think it is appropriate to organize my discussion around each woman’s story (her story as told to the courts) instead of partitioning the narratives and disconnecting them from the women at the centre. Hohendorff stated we must “listen…so that they are part of our community, not separate.”477 By focusing on each judgment (for the most part) separately, I aim to “listen” to what the criminal justice system hears – what information judges receive about the women’s histories of victimization and criminalization (within colonization), and how judicial understandings connected to these issues influence sentencing reasoning. To this end, to demarcate and foreground each woman’s court “story,” I include subheadings presenting each Aboriginal woman’s name for each of the main decisions discussed within the sections below. My drawing that opens this chapter, “Best for Everyone to Drop Out” (Figure 3), symbolizes the devastating effects of isolation and our human need for healthy, loving relationships. The Aboriginal women I discuss in this chapter have experiences of victimization that often relate to abusive relationships, and these experiences and relationships have profoundly isolating effects that can augment vulnerabilities (including vulnerabilities to criminalization). This is the only drawing in my painting series. I have used a technique involving “blacking out” the background with charcoal to form the “ground” of the drawing. Then I used a malleable eraser to expose the white paper underneath where the light hits the woman’s body, to pull out the light (the inverse of conventional drawing in which dark lines are  476 477  Ottawa, House of Commons, Subcommittee on Solicitation Laws, supra note 4 at 31. Ibid. at 32.  100 laid to create positive space). Through this, I was aiming for the effect of the woman’s body and the shadows being part of each other – a comment on the mental health effects of isolation. Further, this technique of blacking out the background with charcoal and erasing the woman’s figure into existence can be understood as how our experiences shape us and our options/trajectories – how experiences of victimization contour the criminalization of Aboriginal women. The theme of isolation underlying this drawing also refers to systemic isolation, the kind of structural alienation and aloneness felt by the Aboriginal women street sex workers at Kindred House who Hohendorff related felt abandoned and unheard.478 I fixed the photo of a purple pansy to this otherwise colourless drawing to represent hope.479 3.2 Judicial navigations along the victimization-criminalization continuum Some decisions in the cases I identified maintain a more rigid dichotomy between “victim” and “offender” than others, while others suggest that “victim” and “offender” are not mutually exclusive categories. Some judges directly correlate histories of victimization with later offending. For example, in R. v. M.P.480 Smith J. relates the victimization in M.P. and her co-accuseds’ past to their offending and comments broadly on how victimization is often then reproduced as violence. Noting M.P.’s Aboriginal heritage,481 Smith J. describes her personal history. M.P.’s life involved abuse and neglect in her biological family, after which she cycled through group homes via Child and Family Services in her youth. She has two children with a substance-addicted man “who subjected Ms. M.P. to a great deal of physical abuse” that she never reported “out of fear of further 478  Ibid. at 31. Michael Jackson writes about giving prisoner Gary Weaver a blue wildflower in segregation, later learning that Weaver carefully tended to it and kept the flower alive for sixty days, his “small floral torch of hope” [Jackson, Justice Behind the Walls, supra note 275 at 617]. The purple pansy is a photo I took after the outdoor pots I abandoned sprung beautiful life despite my complete inattention to gardening – a juxtaposition bringing into relief my own privilege and advantages, and highlighting the painful specificity of the isolation of imprisonment (and that of victimization). 480 R. v. R.K., 2001 CanLII 26261 (MB PC). 481 Ibid. at para. 86. 479  101 reprisal.” 482 One of her children was removed into state care and another died. 483 Stating “[o]bviously, she has suffered from disadvantage and is a product of her difficult background,”484 Smith J. later provides that “[n]one of the three offenders before me had the loving, nurturing start in life that every child in our community deserves. Far from it. All were criminally victimized as children and adolescents.”485 Smith J. clearly connects this victimization to later criminality, [c]ould more have been done to protect them in their formative years or to help them overcome their dysfunctional backgrounds? It is not for me to say. I only make the observation that the community should be concerned with the fact that too often children are victimized. Violence, cruelty and mistreatment in childhood and adolescence so often beget violence and cruelty to others when these children grow up.486 This judicial representation of the victimization-criminalization continuum foregrounds the significance of victimization in an offender’s early life and depicts a causal relationship between early victimization and later offending, in that M.P. is described as “a product of her difficult background.”487 Smith J. also recognizes the limits of both the role of the sentencing judge and her comments about the cycle of victimization and criminalization, observing that “[i]t is not for me to say”488 whether the cycle could have been averted. I return to the limits of sentencing in Chapter 5. Some judges in my study characterize the personal histories of Aboriginal women offenders in a manner that reflects Dana DeHart’s finding that the intersection of cumulative, “unrelenting”489 traumas constitutes the type of victimizations that often pervade the lives of criminalized women. Such judicial acknowledgments of polyvictimization include Barnett J.’s  482  Ibid. There is no information about that child’s death, other than the comment it happened “tragically.” [Ibid. at para. 87.] 484 Ibid. at para. 86. 485 Ibid. at para. 123. 486 Ibid. at para. 124. 487 Ibid. at para. 86. 488 Ibid. para. 124. 489 DeHart, supra note 267 at 1375. 483  102 comment in R. v. Lilley490 that Diane Lilley’s PSR “tells the story of a woman who has had a life characterized by continuous trauma, the sort of life that most people would just shake their head at in disbelief” because she “has suffered a lot of abuse.”491 In R. v. Batisse,492 Gordon J. describes that Brenda Batisse “has seen and experienced more grief than any one person should.”493 Sometimes this language and the inherent understanding of the cumulative effects of repeated experiences of violence emerge directly from PSRs and judges adopt the same framework. For example, in R. v. Chouinard494 the PSR expressed that “the count is not in years of abuse, but in a lifetime of it.”495 Ratushny J. incorporated this understanding from the PSR into her reasoning by adopting the phrase “lifetime of abuse”496 and using that framework to situate her decision within rehabilitative concerns instead of imposing a sentence of incarceration. I will discuss how Ratushny J. uses this understanding of Chouinard’s “lifetime of abuse”497 to contextualize her conduct during the offence in greater detail below. For now, it is sufficient to note that Ratushny J. recognizes the polyvictimization in Chouinard’s life, using a lens akin to the victimization-criminalization continuum to find that Chouinard was enmeshed in a “life’s cycle of substance abuse and victimization,”498 and positions her criminalization within this cycle. Other judges discuss the unrelenting traumatization in many Aboriginal women’s lives by locating it within the general context of the reverberations of colonization. For example,  490  R. v. Lilley, 2004 YKTC 38. Ibid. at para. 3. 492 R. v. Batisse, 2008 CarswellOnt 8590 (Ont. Sup. Ct. Jus.) (WLeC). [Batisse] 493 Ibid. at para. 25. 494 R. v. Chouinard, 2005 CarswellOnt 10610 (Ont. Sup. Ct. Jus.) (WLeC). [Chouinard] 495 Ibid. at para. 11. 496 Ibid. at para. 22. 497 Ibid. at paras. 11 and 22. 498 Ibid. at para. 22. 491  103 in R. v. Pepabano499 Bonin J. comments: “[n]o doubt the accused has unfortunately lived in a dysfunctional milieu, in relation with [sic] the numerous traumas experienced by many First Nations communities.” 500 Other judges fail to contextualize Aboriginal women offenders’ victimization and criminalization within colonization, which I discuss with respect to the specific cases featuring that omission. In this section, I examine cases featuring various judicial discourses related to the victimization-criminalization continuum. First I discuss R. v. Shenfield,501 in which the judge offers a sensitive appreciation for the vulnerabilities of the offender with respect to her victimization and the offence for which she is being sentenced. Then I discuss R. v. Woods,502 a decision with a clear judicial statement about the victimization-criminalization continuum, although more complicated where the judge situates issues related to that offender’s victimization within both mitigating and aggravating factors. R. v. Dennill 503 offers some problematic reasoning by decontextualizing the offender’s experiences of victimization (and her broader experience as an Aboriginal woman). I discuss how the judge’s attribution of that offender’s problems to her choices and not systemic factors should have been informed by the victimization-criminalization continuum, in terms of how victimization narrows women’s alternatives. As above, I explore the largely very nuanced decision Chouinard for its articulation of issues related to victimization. Finally, I examine R. v. Kahypeasewat.504 For this judgment, I go into greater depth, because it engages several important issues. The judicial discourse is generally attentive to this offender’s experiences of victimization. The judge decides that she has  499  R. v. Pépabano, 2005 CanLII 48584 (QC CQ). [Pépabano] Ibid. at para. 20. 501 R. v. Shenfield, 2008 ABPC 47. [Shenfield] 502 R. v. Woods (R. v. C.I.W.), 2007 SKPC 54. [Woods] 503 R. v. Dennill 2010 CarswellNWT 104 (WLeC); 2010 NWTSC 98, [2011] A.W.L.D. 2098. [Dennill] 504 R. v. Kahypeasewat (R. v. V.K.), 2006 SKPC 79. [Kahypeasewat] 500  104 battered woman syndrome, and also importantly finds that her offence is derivative of such experiences – although problematically also finding her offence aggravating because the victim was her (abusive) spouse. Looming over the whole decision is the troubling possibility that her offence was actually self-defence, so I discuss the issue of pressures to plead guilty. Kahypeasewat is noteworthy for its pronouncement that Aboriginal peoples individually and collectively internalize the violence of colonization. This critical point is seldom explicitly made in the cases in my study; in fact, I did not find any other judgments highlighting this concept. 3.2.1 Jillian Shenfield In R. v. Shenfield,505 there is a nuanced judicial portrait connecting Jillian Shenfield’s offence to her vulnerabilities, contributing to her receiving a suspended sentence for the duration of an 18-month probation order for trafficking. In response to their request to purchase cocaine, Shenfield had informed two undercover police officers that she could contact someone. She physically transferred the cocaine to the officers when that person arrived and insisted he would only “go through her.”506 Anderson J. found this constituted trafficking, but noted that her “primary motivation was to assist the persons posing as users, herself being a user.”507 In this case, for the purposes of discussing the victimization-criminalization continuum and judicial understanding of those dynamics, victimization primarily refers to addiction (and the ways it amplified her vulnerabilities). While her experiences from her childhood and youth are not disclosed in the decision, Shenfield is “of aboriginal origin with ties to the Saddle Lake First Nation,” and she now has  505  Shenfield, supra note 501. Ibid. at para. 5. 507 Ibid. at para. 6. 506  105 children who are “no longer in her care.”508 She is described as having “trouble coping with many aspects of life,” and an addiction to cocaine.509 On sentencing, Anderson J. reflects on Shenfield’s pathway into sex work and criminality, commenting that “[h]er addiction led her to the street and all of the dangers, exploitation and vulnerabilities that surround life on the street.”510 The judge expands this view, commenting [t]his not a case where Ms. Shenfield exploited the vulnerabilities of others to enrich herself. On the contrary, she was targeted precisely because of her own obvious vulnerabilities and her predictably easy exploitation. She was a known drug user, selling herself on the street to support her drug habit. She was not on the street to promulgate the sale of drugs. Ms. Shenfield epitomizes the victim of the very exploitation that our drug laws, including the harsh sentencing guidelines for commercial predators, strive to prevent.511 Anderson J. here recognizes that Shenfield was vulnerable person who depended on others (to support her addictions), implicating the power imbalance inherent in her interactions with the undercover police and the dealer during the offence. This depiction further fleshes out the narrative of the victimization-criminalization continuum by integrating how others perceived and capitalized on her vulnerabilities with the judge’s understanding of her identity as a vulnerable drug user, culminating in a fuller picture of how Shenfield’s victimhood contributed to her offence. Anderson J. also recognizes Shenfield’s vulnerability and victimhood when deciding that while it was unclear from evidence at trial whether Shenfield kept a piece of cocaine for herself, nothing “turns on that in relation to sentence” and that “if she did capitalize on this event to get a small amount of drugs without having to turn a trick, I am not going to punish her for that.”512 This recognition of Shenfield’s vulnerable, intersectional experience demonstrates judicial 508  Ibid. at para. 2. Ibid. 510 Ibid. 511 Ibid. at para. 23. 512 Ibid. at para. 6. 509  106 sensitivity that meaningfully impacts sentencing. This judgment represents a fairly unique portrayal of the victimization-criminalization continuum for its holistic view of the offender’s vulnerabilities and how that expansive interpretation of what it means to be an offender (and how victimhood can contribute to criminality) can impact sentencing. 3.2.2 Candace Woods The overlap between Gladue factors and the victimization-criminalization continuum is intimated in R. v. Woods, 513 where the judge effectively substitutes a version of the victimization-criminalization continuum for Gladue factors to guide the sentencing analysis. In Woods, Whelan J. sentences Candace Woods to a conditional sentence of two years less a day for robbery, among other lesser offences. Woods had displayed a knife and demanded money from a restaurant till. She was a sex worker and carried the knife “for protection,”514 and her “[c]ounsel advised that she was high on morphine and had not slept in several days.”515 Whelan J. describes that she “is a member of the Muskoday First Nation,”516 whose parents are elders and separated when she was young, precipitating a cycle in which would have conflict with her mother over her substance use until her mother “insisted on her leaving the home” in her early adolescence.517 She “became involved in the street and drug culture” and sex work.518 When she was four years old, Woods was sexually abused by a family friend. Her addictions began in her youth, and she fluctuated between treatment and sobriety. One of these relapses was triggered by the grief and guilt Woods felt over the murder of her sister after having introduced her sister to the street and  513  Woods, supra note 502. Ibid. at para. 5. 515 Ibid. at para. 7. 516 Ibid. at para. 11. 517 Ibid. at para. 13. 518 Ibid. at para. 13. 514  107 drug culture.519 Her addictions persisted through her relationship with her common-law partner, who was also mired in substance abuse. However, after completing the Women’s Substance Abuse Program in pretrial custody and following her release on an undertaking, Woods maintained sobriety. She was the primary caregiver for her baby. I return to issues about her pretrial custody and treatment in Chapter 5. Whelan J. explains that Woods “committed the substantive offences to support her drug habit.”520 Contextualizing this pattern when discussing mitigating factors, Whelan J. cites that she “was repeatedly victimized at an early age,” and notes that “[e]xperience in this Court has shown that the pattern of behavior, evidenced in her record and the offences for sentencing today, is typical of many young persons who have been sexually abused. Her offences are related to a lifestyle of substance abuse and prostitution.”521 This analysis represents a clear judicial pronouncement on the operation of the victimization-criminalization continuum in Woods’ life, and notably situates it within mitigating factors. However, equally and seemingly paradoxically, Whelan J. also positions Woods’ substance abuse (itself a form of victimization within my definition, and, as the judge states, connected to Woods’ experiences of victimization by sexual abuse) within aggravating factors, as her “addictions problems” have “been a significant factor in her offending and unstable lifestyle.”522 This complicates the narrative about victimization and criminalization, because it seems that the judge connects Woods’ substance abuse to her victimization as a child and finds this mitigating, while simultaneously finding her substance  519  See ibid, at paras. 13-4, 16. Ibid. at para. 16. 521 Ibid. at para. 44. 522 Ibid. 520  108 abuse aggravating when decontextualized and connected to “her offending and unstable lifestyle.”523 Nonetheless, it is noteworthy that Whelan J. engages in an analysis that largely resonates with the victimization-criminalization continuum and then likens it to the Gladue analysis: “I believe that the Pre-Sentence Report, submissions, and my discussion of aggravating and mitigating factors, above, reflects something of the type of analysis anticipated in R. v. Gladue.”524 Whelan J. does not mention taking judicial notice of Gladue factors. However, her description of “the type of analysis anticipated in R. v. Gladue”525 is otherwise broadly consistent with the Ipeelee reiteration of the Gladue direction about this analysis: in addition to taking “judicial notice of the broad systemic and background factors affecting Aboriginal people generally,” “additional case-specific information will have to come from counsel and from the pre-sentence report.”526 Because there is no explicit discussion of the Gladue analysis outside of this reference, the victimization-criminalization continuum discourse that emerges from the reasoning (via the discussion of the PSR and the mitigating factors, including Woods’ history of victimization) effectively substitutes for the Gladue analysis, or is at minimum emphasized over a more explicit Gladue analysis. Generally, Woods offers an example of how permutations of the victimization-criminalization continuum may function in place of a more definitive, circumscribed discussion of Gladue factors. This underscores the utility in thinking about how the victimization-criminalization continuum and Gladue factors interact and overlap in judgments.  523  Ibid. Ibid. at para. 49. 525 Ibid. 526 Ibid. at para. 59. 524  109 The Gladue analysis is not presented as explicitly as would be helpful, although Whelan J. does position rehabilitation and alternatives to incarceration as “weighty considerations.”527 Within the brief direct reference to the Gladue analysis, Whelan J. makes reference to having “been mindful of the seriousness of this robbery, especially given the threat of violence.”528 This is the type of statement that risks the problem Ipeelee distills from the post-Gladue jurisprudence that judges have incorrectly interpreted serious offences preclude the Gladue analysis. 529 However, noting that Woods “has experienced disadvantage but she has also experienced the benefits of a strong cultural heritage through her parents who are Elders,”530 alongside her rehabilitative progress and compliance with restrictive bail conditions, ultimately Whelan J. decides to craft a sentence consistent with Woods’ further rehabilitation, in the community. 3.2.3 Kara Dennill In R. v. Dennill,  531  Gladue factors are deemphasized and the victimization-  criminalization continuum that emerges from the judgment does allow for recognition of agency but in a way that effectively supplants systemic factors. Kara Dennill is sentenced to 19 months imprisonment cumulatively for two separate trafficking offences after she twice sold cocaine to undercover police officers. Lauding the PSR as “very thorough and, in my view, a balanced presentence report,”532 Schuler J. discloses its contents: Dennill is “an Inuit woman”533 who “grew up in a supportive and encouraging adoptive family.”534 However, “interventions by Social Services” began following her “difficult behaviour” when Dennill “began to drink and use  527  Ibid. at para. 49. Ibid. 529 Ipeelee, supra note 16 at para. 84. 530 Woods, supra note 502 at para. 49. 531 Dennill, supra note 503. 532 Ibid. at para. 8. 533 Ibid. at para. 33. 534 Ibid. at para. 10. 528  110 drugs” as a youth, 535 ultimately becoming involved in the youth criminal justice system.536 She was a “victim of abuse by individuals outside her family.”537 Dennill has a young child who is cared for by her parents due to “her unsettled lifestyle”538 which the judge later clarifies “by that I mean drinking, taking drugs, and staying out late at night and because she does not follow through on things.”539 Schuler J. notes “[i]t appears that many resources have been tried but she has not always followed through with them and has from time to time run away from home and from facilities she was placed in.”540 Schuler J. later comments [a]lthough Ms. Dennill has clearly had some traumatic experiences in her life, as described in the pre-sentence report, she has also had a supportive family and, it seems, a good family life. The difficulties she has had appear to have resulted, at least in part, from choices she has made about the people she associates with and the lifestyle she leads rather than any systemic factors that have affected her as an aboriginal woman.541 Dennill’s experiences that precipitate her “unsettled lifestyle”542 and “difficulties”543 would be understood through a victimization-criminalization lens as relating less to pure “choices she has made”544 as the judge declares, and more to how her experiences of victimization have limited her range of choices, and how she has navigated her life within those narrowed options. The Gladue analysis should augment this understanding by providing the context of the role of colonization in constricting her life options.  535  Ibid. at para. 10. Ibid. 537 Ibid. 538 Ibid. at para. 9. 539 Ibid. at para. 11. 540 Ibid. at para. 10. 541 Ibid. at para. 34. 542 Ibid. at para. 9. 543 Ibid. at para. 34. 544 Ibid. 536  111 It would be illuminating to know the circumstances of Dennill’s Inuit birth family; while there are myriad reasons she may have been put up for adoption, it is at minimum possible that systemic factors arising from colonization were involved. It is difficult to understand how Schuler J. decides her experience as an Aboriginal woman is effaced or largely irrelevant because she was raised in a “a supportive family” within “a good family life.”545 Furthermore, there is insufficient information provided (perhaps in the PSR, but certainly in the judgment) about how Dennill may have been culturally affected by growing up in an adoptive, perhaps nonAboriginal (unspecified) family. Her tendency to “run away from home and from facilities she was placed in”546 is presented merely within the general discussion of her youth and may relate to the judge’s comment that she “does not follow through on things”547 – although in fairness the judge does not expressly connect this perception of her failure to follow through with her history of running away. It is conceivable that Dennill felt alienated from her birth family and culture, unsettled within her adoptive family, and disconnected from the institutions that were interceding in her life. While this is all mere speculation, it remains difficult to understand how Schuler J. links her “difficulties” with “choices” and “lifestyle” “rather than any systemic factors that have affected her as an aboriginal woman.”548 In this respect, the judgment seems to overly focus on Dennill’s (decontextualized) agency at the expense of further consideration of systemic factors, which is neither consistent with the lens of the victimization-criminalization continuum nor the Gladue analysis. It seems that the judgment evinces a portrait of a woman who has struggled despite being raised in an ostensibly good family, and therefore a woman whose struggles are of  545  Ibid. Ibid. at para. 10. 547 Ibid. at para. 11. 548 Ibid. at para. 34. 546  112 her own making, and Gladue factors are deemed to fall away at this juncture. Within this framework, effectively personal choices are held as antithetical to systemic factors, whereas it would be better aligned with understandings of victimization and criminalization within the Gladue analysis if Dennill’s choices were understood to be circumscribed by systemic factors. 3.2.4 Josée Chouinard R. v. Chouinard 549 offers a particularly sensitive judgment where it deals with the experiences of victimization in Josée Chouinard’s life and how that informs her sentence. I will highlight some judicial comments that do not comport with the direction from Ipeelee, although it appears that Ratushny J.’s contextualization of Chouinard’s victimization plays a significant role in fashioning an appropriate sentence otherwise. Chouinard is sentenced after pleading guilty to being an accessory after the fact to manslaughter and receives a three-year sentence of imprisonment, the balance of which (after pretrial custody) is to be served conditionally in the community, followed by a two-year probation order. Ratushny J. comments that the PSR details a life that “almost takes one’s breath away with sadness.”550 The judge elaborates that Chouinard was repeatedly sexually assaulted in her childhood but had “some good years in foster care.”551 Then Chouinard “drifted into new abusive relationships and substance abuse,”552 including her relationship with the victim. He had been the father of her two children, and “would beat her when he drank.”553 Her two daughters were removed from her care when she was charged. Ratushny J. decides to orient Chouinard’s sentence around rehabilitation concerns instead of imposing incarceration. A significant part of this orientation derives from Ratushny J.’s  549  Chouinard, supra note 494. Ibid. at para. 5. 551 Ibid. at para. 7. 552 Ibid. 553 Ibid. at para. 8. 550  113 consideration of Chouinard’s “lifetime of abuse” and that in her childhood Chouinard “accepted serious abuse as part of her normal life and simply went on living.”554 Ratushny J. uses this context to inform her understanding of Chouinard’s apathetic conduct after she was an accessory after the fact to a brutal manslaughter (in that Chouinard continued to drink and laughed about it with the other parties involved). Against the backdrop of Chouinard’s extensive history of victimization, the judge finds “it is not surprising she found herself reacting as she did to the abuse of the victim that night.” 555 This recognition prompts Ratusnhy J.’s “focus on an individualized, restorative approach to sentencing to try to deter Ms. Chouinard from drifting again into criminal behaviour and to try to assist in her rehabilitation, away from her life's cycle of substance abuse and victimization.”556 I briefly return to this case in Chapter 4 to address Ratushny J.’s comments about the inappropriateness of incarceration for Chouinard. The judge’s formulation of the victimization in Chouinard’s life (her “lifetime of abuse,” her “life’s cycle of substance abuse and victimization,” and that her reaction to the offence “is not surprising” 557 ) reflects the general concept behind the victimization-criminalization continuum. Additionally, it allows space for how victimization constrains women’s options and choices within those options, particularly when read with Ratushny J.’s further comments that “[a]lcoholism was part of her mother’s life, part of her father’s life and became part of Ms. Chouinard’s life and along with the alcoholism, came an inability by either mother and daughter to prevent or leave a life filled with physical abuse.”558 These insights are consistent with  554  Ibid. at para. 22. It should be noted that in 1997 Ratushny J. released a report reviewing the convictions of various women convicted of homicide resulting in the death of abusive partners, with a view to assessing the issue of self-defence. For a discussion of this report, see CAEFS, “Justice for Battered Women – Denied, Delayed…Diminished: Jails are Not the Shelters Battered Women Need”, online: CAEFS http://www.elizabethfry.ca/diminish.htm. 555 Chouinard, supra note 494 at para. 22. 556 Ibid. 557 Ibid. 558 Ibid. at para. 19.  114 Marilyn Brown’s nuanced conception of agency within constraints: “the pathways perspective”559 also needs to consider the degree of autonomy which women can exercise within relationships that are often marked by dependence, abuse, and victimization.”560 Despite this articulation of the accumulation of polyvictimization and how these experiences created barriers for Chouinard, the interrelation of victimization within the Gladue analysis is slightly weakened by one of the problems identified in the post-Gladue jurisprudence by Ipeelee. Ratushny J. does recognize per Gladue that “[t]he principle of restraint is particularly applicable to Ms. Chouinard as an aboriginal offender”561 and sentences accordingly, ordering a just sentence consistent with Gladue. However, Ratushny J. also mentions “[i]t is difficult to specify which elements of Ms. Chouinard’s background might be attributable to her heritage. Only her mother was aboriginal.”562 The facts do present issues that may well be attributable to colonization. However, neither the difficulty ascertaining which aspects of Chouinard’s background relate to her heritage nor the fact that “[o]nly”563 her mother was Aboriginal should have any bearing on the Gladue analysis. As in my discussion about Jankovic, judges should not artificially restrict the multiplicity of Aboriginal identities and experiences, and (given the clarification from Ipeelee) they must neither expect nor require the establishment of a causal connection between Gladue factors and the offence in question.  559  As I address in Chapter 1, I do not distinguish the pathways perspective from the victimization-criminalization continuum given my expansive interpretation of victimization. 560 Marilyn Brown, “Gender, Ethnicity, and Offending over the Life Course: Women’s Pathways to Prison in the Aloha State” (2006) 14(2) Critical Criminology 137 at 143. 561 Chouinard, supra note 494 at para. 18. 562 Ibid. at para. 19. 563 Ibid.  115 3.2.5 Valerie Kahypeasewat In R. v. Kahypeasewat,564 the judge attributes Valerie Kahypeasewat’s offence to her past experiences of victimization in a way that seems to endorse the victimization-criminalization continuum as a lens, both in the judicial discourse about these issues and also in how this discourse meaningfully impacts the ultimate sentence. Huculak J. offers a nuanced understanding of the experiences underlying the manslaughter for which the judge orders Kahypeasewat to serve a conditional sentence of two years less a day followed by two years of probation. Kahypeasewat plead guilty to manslaughter after killing a man with whom she had been in an abusive relationship after he repeatedly and aggressively “attempted to engage in intimate physical contact despite her demands to be left alone,” and she finally swung at him with a knife.565 I will describe the circumstances of the offence in some detail because despite judicial sensitivity to her victimization, the facts troublingly suggest that Kahypeasewat acted in selfdefence (although she pled guilty to manslaughter). Within a self-defence frame (and even outside it, within the actual confines of the judgment), it is clear how Kahypeasewat’s experiences of victimization have constrained her options both broadly in her life and in the specifics of the offence circumstances. At the sentencing circle convened for Kahypeasewat, the Crown read in the circumstances of the offence. 566 Huculak J. describes that Kahypeasewat “had an on-off relationship” 567 with the deceased, spanning several years. On the night of the offence, Kahypeasewat and the deceased, Frank Nadary, had been drinking with others at Kahypeasewat’s brother’s apartment. Nadary was harassing Kahypeasewat, and had refused to  564  Kahypeasewat, supra note 504. Ibid. at para. 3. 566 Ibid. at para. 2. 567 Ibid. at para. 3. 565  116 leave after being asked multiple times to leave (by Kahypeasewat, and it seems by others too), including when she wanted to sleep. Nadary persisted in trying to initiate unwanted sexual contact with Kahypeasewat, who left the room, opened the front door and again asked him to leave, physically trying to push him out. Kahypeasewat explains her frustration in her statement to the police: “‘[h]ow many times I told him to leave, ‘get out, leave me alone’, he just wouldn't listen.”568 She threatened to call the police if he refused to leave.569 Huculak J. provides that Nadary then “attempt[ed] to smother the accused by wrapping his arms around her,” and grabbed her neck, “pulling her hair.” 570 After Nadary refused to leave following her demands, Kahypeasewat discloses “I was like – it was like I couldn’t breathe, like, you know.”571 In a later statement to police, Kahypeasewat expands about her feelings of anger and frustration, explaining it felt “[l]ike you're having a panic attack or something. Like for me it was like that smothering feeling, anger plus it's kind of hard to breathe for me, you know, when I'm trying to get him away and I can't, it's pretty frustrating.”572 The judge continues that Kahypeasewat “was able to escape his grasp and began to throw various objects in his direction to deter him.”573 In her police statement, Kahypeasewat explains that she had been throwing cups but I kept missing him, I was trying to get him to get out and he wouldn't leave. He kept moving around so I wouldn't hit him with the cups. That's when I grabbed the knife. I was looking, first thing I seen like, I would take it and throw it at him, but those were the cups. And then all of a sudden I had this knife and I was missing him with that, and I didn't know I connected because it was fast. I was trying to scare him out of there but I didn't realize I'd connected and it became a major big thing.574 568  Ibid. at para. 4. Ibid. at para. 27. 570 Ibid. at para. 3. 571 Ibid. at para. 5. 572 Ibid. at para. 12. 573 Ibid. at para. 3. 574 Ibid. at para. 6. 569  117 The judge explains that Kahypeasewat “swung at Mr. Nadary three times, with the second strike inflicting a mortal wound on the victim.”575 Huculak J. notes “[d]espite the fact that Valerie was swinging the knife at Mr. Nadary, he continued to attempt to grab her. Valerie had intended to scare Mr. Nadary and the motion that the knife was swung was toward his arms.” 576 Kahypeasewat told the police “[b]ut I didn't mean to connect, I just tried to scare him, tried to get him out of the house, the apartment. But he wouldn’t leave.”577 It is critical to understand these events in the context of Kahypeasewat having been in four relationships that “involved physical violence,” including her relationship with Nadary – he “had been convicted of unlawful confinement and assault on the accused”578 (“assault causing bodily harm” which resulted in a “condition of no contact”)579. Additionally, the judgment provides that Nadary “had been released from jail about a month before the alleged offense and he had come looking for her,” and that Kahypeasewat “knew that although he was not supposed to have any contact with her, it would not deter him.”580 The entire basis of their relationship was based on Nadary’s abuse: Kahypeasewat reported to the doctor authoring a report to the Court that “the victim had ‘decided’ on their relationship and added, ‘He would find me and drag me out or scare me to the point of going out with him.’”581 Kahypeasewat disclosed “I felt I had to act accordingly…so I didn't get hit or screamed at.”582 The doctor reports that the deceased “tried to control” Kahypeasewat, emotionally abused her, and “she was in fear of the victim throughout most of their relationship and said he  575  Ibid. at para. 3. Ibid. at para. 8. 577 Ibid. at para. 17. 578 Ibid. 579 Ibid. at para. 27. 580 Ibid. 581 Ibid. 582 Ibid. 576  118 frequently threatened to kill her.”583 Kahypeasewat also reported to the doctor that during the incident giving rise to her criminalization, after throwing cups at Nadary had no deterrent effect on his advances and she grabbed the knife, “that's when I started swinging at the same time I had my eyes shut tight because I figured he would throw punches.”584 The doctor reports that she only opened her eyes after realizing she had “hit something.”585 The facts speak to an Aboriginal woman not merely with constrained choices, but with no meaningful choice in how to react to the ongoing abuse and harassment by the deceased. This is the troubling context of her criminalization that led to her guilty plea to manslaughter. Joycelyn M. Pollock and Sareta M. Davis write about violence committed by women “there are a number of narratives that sound much more like self-defence than aggression initiated by the female offender.” 586 The circumstances of Kahypeasewat’s offence conform to this analysis. Huculak J. details Kahypeasewat’s personal history, which includes experiences of racism; extensive sexual, physical, and emotional abuse beginning in her violent home life as a child and continuing through several violent intimate relationships; and living through the murders of her mother and one of her daughters. She developed substance abuse issues, culminating in her children being removed by Social Services. Huculak J. finds that Kahypeasewat suffered from battered woman syndrome, and this in conjunction with the Gladue factors are mitigating. However, Huculak J. also notes having “taken into account” aggravating factors, including “the victim was a spouse.”587 This is a reference to s. 718.2(a)(ii) of the Code, which the judge cites within the sentencing principles considered. As I have mentioned elsewhere, uncritical application of this principle is problematic in this context, wherein 583  Ibid. Ibid. 585 Ibid. 586 Pollock & Davis, “The Continuing Myth”, supra note 121 at 17. 587 Kahypeasewat, supra note 504 at para. 72. 584  119 Kahypeasewat has extensive experiences of violence in relationships, including in her relationship with the deceased. It seems incongruous for the judge to both consider battered woman syndrome a mitigating factor alongside finding it aggravating that this offence involved violence against Kahypeasewat’s abusive partner. To avoid s. 718.2(a)(ii), perhaps the judge could have decided that this was not a relationship contemplated by this provision. I suggest that s. 718.2(a)(ii) is neither informative nor appropriate in contexts such as Kahypeasewat’s offence. Notwithstanding this incongruence, considering Kahypeasewat’s life overall, Huculak J. clearly recognizes how her experiences of victimization and other struggles have left her vulnerable to criminalization. The judge describes that these socio-economic factors figure significantly into sentencing considerations, since Valerie Kahypeasewat’s tragic upbringing, the murder of her child, racism, victimization, abuse, addictions, family dislocation, poverty, fragmentation, lack of education and employment, family dysfunction, and her shattered life all contributed in a major way to her criminal record.588 Elaborating on how the violence permeating Kahypeasewat’s life also informs her sentencing, Huculak J. declares “I find that [her] stabbing of Frank Nadary was a derivative crime borne of the unresolved effects of past conditions of abuse, indignities and profound grief.”589 The idea that this stabbing is a derivative crime stemming from the pain suffusing Kahypeasewat’s life relates is quite a profound judicial statement. Additionally, it conforms well to the conception of victimization and criminalization operating along a continuum. The judge concludes with further such contextualization, noting the limits of sentencing because “[t]he socio-economic and environmental back-drop to domestic violence must also be addressed which is beyond the scope of this court.”590 This comment reflects the recurrent theme that judges identify in the cases I  588  Ibid. at para. 59. Ibid. at para. 72 [emphasis added]. 590 Ibid. at para. 84. 589  120 reviewed: the criminal justice process is inadequate to respond to issues rooted in fundamental, entrenched societal inequalities that act as destabilizing forces. Huculak J. elaborates that [d]omestic violence in the aboriginal community is a serious issue. The factors contributing to this are complex. What sentence the accused receives will not change this. The Gladue factors play a prominent role in creating the conditions where violence is turned inward toward family, friends and self. The tragedy is that without significant resources and a change in the socio-economic conditions, little will change.591 These comments are significant, signifying judicial understanding of the role of colonization in the internalization of violence. Linda Tuhiwai Smith explains the process of the internalization of colonization as a form of violence that is corrosive to Aboriginal peoples’ individual and collective senses of self and well-being, expressed as both internally and externally-directed violence: [o]ften there is no collective remembering as communities were systematically ripped apart, children were removed for adoption, extended families separated across different reserves and national boundaries. The aftermath of such pain was borne by individuals or smaller family units, sometimes unconsciously or consciously obliterated through alcohol, violence and self-destruction. Communities often turned inward and let their suffering give way to a desire to be dead. Violence and family abuse became entrenched in communities which had no hope. White society did not see and did not care. This form of remembering is painful because it involves remembering not just what colonization was about but what being dehumanized meant for our own cultural practices.592 The internalization of colonization is a complex process, and it is important that Huculak J. makes reference to this process by stating that “Gladue factors play a prominent role in creating the conditions where violence is turned inward toward family, friends and self.”593 The judge’s comments about the intractable nature of these issues absent fundamental societal shifts is also critical for its recognition of how – like other forms of victimization – colonization constrains 591  Ibid. at para. 61. Tuhiwai Smith, supra note 35 at 146. 593 Kahypeasewat, supra note 504 at para. 61. 592  121 Aboriginal women’s choices at a systemic level. This framework, heeding the internalization of colonization and its expression through inward and outward violence, should undergird the sentencing of all Aboriginal offenders – but this does not always appear to be the case. Taken as a whole, Kahypeasewat represents a complicated judgment, and particularly as pertains to the victimization-criminalization continuum. On one hand, it presents a nuanced understanding of how Kahypeasewat’s own experiences of victimization (situated within colonization) have contributed to her “derivative crime,”594 and yields an appropriately sensitive community sentence. However, equally, it involves the sentencing of an Aboriginal woman whose offence reads as self-defence on the facts, which is amplified by her experiences of abuse in relationships generally and specifically in her relationship with the deceased. Kahypeasewat was charged with manslaughter. It is unclear what pressures she may have experienced in her decision to plead guilty. Some studies have found that women are more likely to plead guilty,595 and the Canadian Association of Elizabeth Fry Societies (CAEFS) and the Native Women’s Association of Canada (NWAC) have emphasized that their advocacy work reveals “women are susceptible to entering guilty pleas at a very high rate.”596 CAEFS and NWAC raise concerns “that women face additional pressures in plea-bargaining,” “especially when the context is a battering relationship,”597 as were Kahypeasewat’s circumstances. CAEFS and NWAC explain that some of these pressures derive from women striving to “protect their children and sometimes to protect the batterer,” noting that overcharging also leads women to pleading to more serious charges.598 Kahypeasewat had several children, two of whom were  594  Ibid. at para. 72 [emphasis added]. Barbara A. Koons-Witt, “The Effect of Gender on the Decision to Incarcerate Before and After the Introduction of Sentencing Guidelines” (2002) 40(2) Criminology 297 at 304. 596 CAEFS & NWAC, “Women and the Canadian Legal System”, supra note 198 at 386-7. 597 Ibid. 598 Ibid. 595  122 present at the apartment on the night of the offence (a factor the judge found to be aggravating, 599 which is problematic in the context of the abusive relationship, given that Kahypeasewat did not choose to expose her children to the deceased at all, and made strenuous, repeated efforts to induce him to leave the apartment). Elizabeth Sheehy has commented that Aboriginal women experience heightened pressures to plead guilty. Sheehy has identified possible reasons for this, including having to contend with portrayals in court material that they were the aggressor (which could result from such issues as addictions affecting memory or linguistic usage inadvertently insinuating mutual aggression), pressures arising from lengthy or serious criminal records, and access to justice issues.600 CAEFS and NWAC point to the lack of available statistics about the pressures within which women plead guilty, which means “systemic arguments cannot be made in courts that would assist women who have faced or are facing these circumstances.”601 3.3 Determinative language in judicial discourses about victimization: women’s narrow agency within constrained options  Aboriginal  Judges in my study frequently employ language variously suggesting a kind of predictability or inevitability when referencing Aboriginal women’s criminalization. I suggest this determinative language reflects judicial understanding of how experiences of victimization constrain Aboriginal women’s choices within already limited options. Below, I discuss several cases featuring judicial discourses that address how these criminalized Aboriginal women’s options and choices within them have been constrained by their experiences of victimization, and  599  Kahypeasewat, supra note 504 at para. 72. Elizabeth Sheehy, “Defending Battered Women on Trial: ‘Not a Battered Woman’: Jamie Gladue” (Lecture delivered at the Faculty of Law, University of British Columbia, 1 April 2011). [Sheehy, “Defending Battered Women on Trial”, Lecture] 601 CAEFS & NWAC, “Women and the Canadian Legal System”, supra note 189 at 386-7. 600  123 how these experiences have accelerated their vulnerability to criminalization. In R. v. Good,602 Faulkner J. describes Helen Good’s life as the “predictable result of neglect and abuse.”603 Digiuseppe J. comments in R. v. Tippeneskum604 that June Tippeneskum’s substance abuse “inevitably led her into the criminal justice system,”605 and that the abuse and neglect she experienced in her youth “created an unfortunate template for her life,” 606 finding it “not surprising”607 that her criminalization reflects that template. In R. v. Gregoire,608 Goodridge J. finds it “not surprising” and “inevitable” that Angela Gregoire’s experiences of victimization left her vulnerable to substance abuse and criminalization.609 In R. v. Pawis,610 Reinhardt J. comments that Nicole Pawis’ history of victimization culminated in “a terrible catastrophe just waiting to happen,” 611 an offence that “was almost predictable, in hindsight.” 612 I discuss how these representations of the Aboriginal women’s histories and criminalization relate to insights conveyed by the victimization-criminalization continuum. 3.3.1 Helen Good In R. v. Good, 613 language suggesting the trajectory into criminalization predictably flowed from limits circumscribed by constrained choices is evident. In this case, Faulkner J. sentences Helen Good to three years imprisonment for assault causing bodily harm and uttering  602  R. v. Good, 2010 YKTC 96. [Good] Ibid. at para. 22. 604 R. v. Tippeneskum, 2011 ONCJ 219. [Tippeneskum] 605 Ibid. at para. 6. 606 Ibid. at para. 19. 607 Ibid. 608 R. v. Gregoire, 2009 NLTD 21. [Gregoire] 609 Ibid. at para. 38. 610 R. v Pawis (R. v. N.C.P.), 2006 ONCJ 386. [Pawis] 611 Ibid. at para. 86. 612 Ibid. at para. 87. 613 Good, supra note 602. 603  124 death threats614 (the defence had asked for two years less a day), and also designates Good a long-term offender for a ten-year period following her release. After detailing the extensive violence that Good perpetrated, Faulkner J. poses that “the obvious question is, ‘why?’”615 In response, Faulkner J. outlines “Helen’s life is the predictable result of neglect and abuse that she herself has suffered at the hands of her parents, partners, caregivers, and associates. Just as predictably, she has passed on many of those effects to her children: two are dead of drug-related causes and a son has serious psychiatric problems.” 616 This demonstrates the judge’s understanding that Good’s experiences of victimization pervasively reduced her life options and left her vulnerable to criminalization. As the judge recognizes that her experiences of victimization have also impacted her options and choices as a mother, this also functions as an oblique reference to the intergenerational effects of colonization. However, as I discuss below, the context of colonization is not examined. Despite judicial recognition that Good’s experiences of victimization have impeded her ability to healthily and productively navigate her life, in other respects Faulkner J. holds Good accountable to her experiences of victimization. In the context of psychological and psychiatric assessments617 suggesting that Good presents a high risk to reoffend, Faulkner J. finds that “[d]espite years of therapy, the offender fails to take ownership of her violence, but continues to seek refuge in her own victimization as a justification.”618 Faulkner J. does not expand in detail, but does provide that “[f]or instance, she reports and justifies assaulting men because they 614  Good appealed her sentence “on the basis that the sentencing judge failed to consider her Aboriginal status pursuant to s. 718.2(e),” and that “the sentence was excessive and unfit because the judge overemphasized deterrence and denunciation to the exclusion of the objectives of rehabilitation and restorative justice,” seeking the substitution of a provincial term of imprisonment [R. v. Good, 2012 YKCA 2 at para. 1.]. Her appeal was dismissed. The Yukon Court of Appeal held “the sentencing judge made no error in principle, and that the sentence imposed was fit” [at para. 47]. 615 Ibid. at para. 21. 616 Ibid. at para. 22. 617 Ibid. at para. 10. 618 Ibid. at para. 34.  125 reminded her of her father. She has never developed any notable empathy for her victims.”619 Drawing from assessments examining Good’s mental health, Faulkner J. notes long-term patterns in Good’s over forty year record of violence,620 which often occurred after she drank621 and was “perpetuated against defenceless victims.”622 It seems the judge describes these victims as defenceless because in an assessment from a previous case, “Helen acknowledged that many of her assaults were premeditated. She would wait until her victim was too drunk to defend himself and then attack.”623 It should be noted that there are also several references to Good having also committed violence against other women and her own children. It seems that the accumulation of serious violence over such a protracted period, her Borderline Personality Disorder and Antisocial Personality Disorder diagnoses, 624 and the assessment ordered for this sentencing concluding that she “remains at high risk of further serious violence if she uses alcohol or other intoxicants625 combine to cause her own experiences of victimization to recede into the background. This imbalance becomes problematic in that there are virtually no details offered about Good’s personal history apart from the reference to the “neglect and abuse that she herself has suffered at the hands of her parents, partners, caregivers, and associates” 626 and her children’s struggles. It is apparent from the number of parties identified who subjected Good to neglect and abuse that her own experiences of victimization were extensive. Even without additional information about her history of victimization, it seems that Good’s life reflects how the “sheer number”627 of victimizations in women’s lives can  619  Ibid. at para. 23. Ibid. at para. 34. 621 Ibid. at para. 16. 622 Ibid. at para. 34. 623 Ibid. at para. 16. 624 Ibid. at para. 20. 625 Ibid. 626 Ibid. at para. 22. 627 DeHart, supra note 267 at 1375. 620  126 become “a tangle of barriers”628 that impede healthier pathways and leave women vulnerable to criminalization. Faulkner J. does not properly contextualize Good’s violence within these circumstances. The omission of any discussion of her personal history is even starker in the effacement of Good’s Aboriginality from the judgment. This is one of the decisions that required me to be attentive to the text in order to discern whether Good was even an Aboriginal woman. Faulkner J. nowhere directly states her Aboriginal status. I have inferred that Good is Aboriginal because when discussing her “significant level of community support,”629 Faulkner J. comments that “the Court received a report authored by Mark Stevens, a justice worker with the Carcross Tagish First Nation”630 and makes reference to a “support circle”631 convened for Good. The judge neither makes reference to s. 718.2(e) nor Gladue. The only direct reference to any specific portion of the s. 718.2 sentencing subsections of the Code is to s. 718.2(a)(ii), as Faulkner J. finds that this “statutorily aggravating factor”632 applies because the offences were against her husband. I have registered my discomfort with the application of this provision to women with histories of violent victimization in intimate relationships in Chapter 1 (and maintain that sentiment for its application in this case), but here I am primarily highlighting how the judge considers this (arguably problematic) sentencing principle but fails to include any consideration of another principle, s. 718.2(e). I discussed in Chapter 1 that in Ipeelee, LeBel J. holds that judges in the post-Gladue jurisprudence have erroneously interpreted that the Gladue analysis does not apply for more  628  Ibid. at 1378. Good, supra note 602 at para. 26. 630 Ibid. 631 Ibid. 632 Ibid. at para. 28. 629  127 serious or violent offences.633 Additionally, Ipeelee deals with two long-term offenders; LeBel J. finds that because there is a statutory duty requiring judges to apply Gladue for any case involving an Aboriginal offender, this duty includes cases dealing with a breach of a long-term offender supervision order – “failure to do so constitutes an error justifying appellate intervention.”634 While Faulkner J. did not have the benefit of the clarity provided by Ipeelee, the seriousness and violence inherent in Good’s offences and criminal record should not have precluded consideration of Gladue, nor should her ultimate long-term offender designation have obviated the Gladue analysis. Gladue was implicated, and should have been considered to “provide the necessary context”635 to assist the judge in determining Good’s sentence. Finally, because Faulkner J. does make reference to Good’s experiences of victimization (albeit without providing a fuller description of her personal history) but fails to engage in a Gladue analysis, in this case judicial recognition of the victimization-criminalization continuum operates without integrating Gladue factors into one cohesive analysis. I will return to this case in Chapter 4, where I discuss how Faulkner J. frames incarceration as a place of healing for Good. Like Faulkner J., other judges in my research use language of predictability in ways that demonstrate recognition of how experiences of victimization have constrained the available options for Aboriginal women: “[t]ragedy and trauma have led, not surprisingly, to substance abuse.”636 Some judges make the further connection to how limited options leave Aboriginal women vulnerable to criminalization, such as R. v. Tippeneskum 637 where Digiuseppe J.  633  Ipeelee, supra note 16 at para. 84. Good, supra note 602 at para. 87. 635 Ipeelee, supra note 16 at para. 60. 636 R. v. Redhead, 2009 MBQB 314 at para. 9. [Redhead] 637 Tippeneskum, supra note 604. 634  128 comments that “[a]lcohol and drug abuse are key factors that have contributed to Ms. Tippeneskum’s behaviour.”638 3.3.2 June Tippeneskum In Tippeneskum, June Tippeneskum is sentenced to 3½ years imprisonment for aggravated assault for failing to disclose her HIV positive status to her partner and other less serious offences. Digiuseppe J. identifies Tippeneskum as a “member of the Attawapiskat First Nation” whose PSR portrays the “all too common picture of a young person raised in difficult circumstances, exposed to violence, abuse, and neglect.”639 Through child protection services, Tippeneskum rotated among her mother’s residence and foster homes during her childhood, and was “repeatedly traumatized and neglected”640 throughout. She was expelled from school, and began “abusing alcohol and drugs.”641 Digiuseppe J. notes “[t]his behaviour inevitably led her into the criminal justice system, first as a youth…and then into adulthood.”642 Her two children were apprehended and placed in the care of her extended family due to concerns about “parental substance abuse, neglect and lack of care giving skills.”643 Digiuseppe J. relates the Pre-sentence Report identifies the intergenerational impact that substance abuse had on Ms. Tippeneskum’s community and on her in particular. She was exposed to violence and neglect at an early age, and the dysfunction in her family created an unfortunate template for her life. It is not surprising that her behaviour has reflected the environment of abuse and neglect she was exposed to as a child.644 Within these references to her trajectory into the justice system, Digiuseppe J. comments that Tippeneskum’s substance abuse “inevitably” led to her criminalization 645 and that her  638  Ibid. at para. 8. Ibid. at para. 5. 640 Ibid. at para. 6. 641 Ibid. 642 Ibid. 643 Ibid. at para. 7. 644 Ibid. at para. 19. 645 Ibid. at para. 6. 639  129 experiences of childhood abuse and neglect further contribute to her later criminalization being “not surprising.”646 Yet overall this judgment does not omit the recognition for agency that the victimization-criminalization continuum has been criticized for precluding. Particularly, Digiuseppe J. engages in a Gladue analysis, situating the “unfortunate template” 647 for Tippeneskum’s within colonization by recognizing the intergenerational impacts of substance abuse on Tippeneskum and her wider community.648 This recognition situates Tippeneskum’s limited agency within choices constrained by victimization, and, more broadly, colonization. The sense of predictability and inevitability that arises from Digiuseppe J.’s comments is nuanced by specific acknowledgments of Tippeneskum’s agency. Digiuseppe J. relates Tippeneskum’s own explanation that she “abuses substances to obliterate painful memories related to her upbringing.”649 The picture of the victimization-criminalization continuum that emerges from the case outlines her “pathway” into criminality, allowing for recognition of her agency within the circumstances of colonization. Digiuseppe J. also specifically determines that Tippeneskum’s professed understanding of how her own experiences of victimization have left her vulnerable to criminalization is a mitigating factor. Digiuseppe J. cites that “Ms. Tippeneskum has some insight into the underlying issues that have contributed to her offending behaviour, and expressed a willingness to address these issues.” 650 Combined with other mitigating factors (a guilty plea and expression of remorse),651 Tippeneskum’s ability to identify the victimization-criminalization continuum in her own life intersects with the judge’s understanding of her history of victimization through the lens of Gladue factors and functions to  646  Ibid. at para. 19. Ibid. 648 Ibid. 649 Ibid. at para. 8. 650 Ibid. 651 Ibid. at para. 20. 647  130 mitigate her sentence.652 Digiuseppe J. does reference the excerpt from Gladue about more violent and more serious offences producing more similar sanctions for Aboriginal and nonAboriginal offenders that Ipeelee clarifies has been overemphasized and misunderstood. However, Digiuseppe leaves the issue in a manner consistent with the general thrust of Ipeelee that ultimately sanctions for Aboriginal offenders must be individualized within the context of colonization: “[u]ltimately, as in all cases, a fit sentence depends on the particular circumstances of the offence, the offender, the victim and the community.”653 I return to this decision briefly in Chapter 4. 3.3.3 Angela Gregoire Whereas the causes and intergenerational effects of substance abuse are referenced in Tippeneskum, in R. v. Gregoire654 the relationship with colonization is made more explicit and tied to determinative language. This yields a more integrated picture of the victimizationcriminalization continuum and Gladue analysis than that emergent from Tippeneskum. Angela Gregoire, a “Montagnais Innu and a member of the Sheshatshiu First Nation,”655 is sentenced to a conditional sentence of two years less a day followed by probation for a further two years for impaired driving causing death and that causing bodily harm. Goodridge J. describes Gregoire as “an alcoholic” who “grew up in a home where multi-generational alcoholism existed.” 656  652  Digiuseppe J. cites Tippeneskum’s domestic relationship with the complainant as an aggravating factor, in keeping with s. 718.2(a)(ii) of the Code. However, I would distinguish this case on its facts from those that in Chapter 1 I registered my discomfort about uncritical application of s. 718.2(a)(ii) instead of more contextualized reasoning (cases involving the violence of Aboriginal women against intimate partners after histories of themselves being subjected to abuse in relationships). I would argue that this case speaks directly to the violation of trust issue that seems to animate s. 718.2(a)(ii) – as Digiuseppe J. notes, Tippeneskum “repeatedly deceived” her partner “over a lengthy period of time” [Tippeneskum, supra note 604 at para. 21.] by failing to inform him about her HIV positive status. 653 Tippeneskum, supra note 604 at para. 18. 654 Gregoire, supra note 608. 655 Ibid. at para. 35. 656 Ibid. at para. 7.  131 Relying on the PSR, Goodridge J. explores the cultural destruction that colonization has induced: “[g]one are many of the traditional pursuits which kept people active and in the country in small camps much of the year. Many of the traditional forms of self government which worked well in the past have been displaced. The traditional institution of the family has deteriorated.”657 The judge explains “[w]hile this cultural adjustment does not justify tolerance of criminal activity, it does help me to understand the circumstances which led Ms. Gregoire to a pattern of alcohol abuse.”658 This framework of using Gladue factors to contextualize the decision is consistent with Ipeelee. Goodridge J. discusses the intergenerational effects of colonization through a detailed account of how alcohol abuse has been passed down Gregoire’s family and the attendant corrosive effects on family stability and cohesion. Like her grandparents, Gregoire’s parents also abused alcohol. “[T]his regularly led to violence in the family home,” a “dysfunctional home marked by frequent acts of violence, neglect, physical and emotional abuse.” 659 Gregoire “reports that she was a victim of sexual assault” throughout her childhood, and she was often temporarily removed from the home by the Director of Child Welfare.660 Goodridge J. responds that “[i]t is not surprising, considering this background that Ms. Gregoire fell into a pattern of alcohol abuse herself,” given that “Ms. Gregoire’s social situation growing up inevitably led to her alcohol addiction and was a major factor in these crimes.”661 This determinative-like language that Gregoire’s alcoholism is “not surprising” and “inevitably”662 a product of her experiences of victimization superficially recalls the criticism of  657  Ibid. at para. 34. Ibid. 659 Ibid. at para. 38. 660 Ibid. 661 Ibid. 662 Ibid. 658  132 the victimization-criminalization continuum that it precludes depictions of agency. However, it appears that it is precisely this lack of agency that mitigates in the form of Gladue factors because it allows for judicial recognition of how victimization constrained Gregoire’s life options. Goodridge J. states “[t]he crimes are directly connected to Ms. Gregoire’s upbringing and other systemic or background factors,”663 which “played a substantial role”664 and “resulted in: dysfunctional family upbringing; victim of physical and sexual abuse as a child; multi generational alcoholism in the family; low education; unemployment; lack of opportunities; depression; low income.”665 Effectively, here Goodridge J. lists the various ways in which Gregoire’s options have been suppressed due to her experiences of victimization (which the judge contextualizes within Gladue factors), clearly connecting the victimization-criminalization continuum, through Gladue factors, to Gregoire’s offending. Goodridge J. specifically cites as mitigating that Gregoire is an “Aboriginal woman with dysfunctional family background,”666 and reintroduces recognition of her agency into the judgment with the further mitigating factors that she has the “desire to change her life,” and “has discontinued alcohol consumption.” 667 Nonetheless, the lack of agency conveyed through the determinative language Goodridge J. employs to describe Gregoire’s pathway to her offence seems to operate to mitigate. That is, by contextualizing Gregoire’s experiences of victimization within the systemic and background factors of colonization, Goodridge J. recognizes how her narrowed options have contributed to her vulnerability to criminalization, and is accordingly able to sentence with sensitivity.  663  Ibid. at para. 54. Ibid. at para. 50. 665 Ibid. 666 Ibid. at para. 51. 667 Ibid. 664  133 3.3.4 Nicole Pawis In R. v. Pawis,668 the judge provides a very thoughtful analysis of the relationship between the victimization-criminalization continuum and the Gladue analysis, and in even greater depth than in Gregoire. Additionally, Reinhardt J. uses determinative language in relation to Nicole Pawis’ victimization and subsequent criminalization, but thoroughly contextualizes this trajectory within constrained choices. Pawis is sentenced to a conditional sentence of two years less a day and three subsequent years of probation for committing aggravated assault on her child after “throwing him around in his stroller” during “an uncontrollable rage at her child for constant crying.”669 Reinhardt J. draws from both the forensic report and the PSR he refers to as a Gladue report because it “addresses those issues mandated by the Supreme Court of Canada when sentencing an Aboriginal offender.”670 From these sources, Reinhardt J. describes that Pawis is a “status Indian from the Shawanaga First Nation.”671 Alongside her siblings, Pawis “suffered serious abuse at the hands of her father, who she reports sexually abused her until he was forced to leave the reserve.”672 Pawis was raised by her grandmother, a residential school survivor who routinely abused her physically, emotionally, and psychologically for over ten years, kept her socially isolated, and neglected her. Pawis “suffered ostracism and abusive treatment” by classmates and teachers who “ridiculed her for being an aboriginal” and excluded her and other Aboriginal students from various activities.673 Reinhardt J. states that Pawis “became pregnant by a partner who was abusive to her,”674 and “knew she was not ready to care for a child.”675 Pawis failed in her attempt to obtain an 668  Pawis, supra note 610. Ibid. at para. 2. 670 Ibid. at para. 21. 671 Ibid. at para. 1. 672 Ibid. at para. 36. 673 Ibid. at para. 42. 674 Ibid. at para. 45. 669  134 abortion because she lacked health insurance coverage, and determined she could not “give him up for adoption…because of social pressure.”676 Unable to cope with the strains of motherhood, before “the assault took place she had tried to arrange for the Native Child and Family Services worker to come over and remove Shikhqim [her child] from her care temporarily.”677 With this thorough description of Pawis’ struggles through an unwanted pregnancy endured within an abusive relationship, Reinhardt J. clearly details how Pawis’ experiences of victimization constrained her options already limited by poverty and marginalization. The judge makes plain that Pawis had made a variety of attempts to exercise her agency in both her pregnancy and motherhood and each attempt was thwarted for systemic reasons. Reinhardt J. also directly connects these restricted choices and resources to Pawis becoming vulnerable to criminalization. The judge comments that the Gladue report demonstrates “that the combination of this child, in the care of this mother, was a terrible catastrophe just waiting to happen”678 and that “[t]he resultant assault on Shikhqim by his mother, Nicole, was almost predictable, in hindsight.”679 Here determinative language appears again, as in previously discussed judgments, but this time thoroughly contextualizing “predictability” within a very clear explanation of how experiences of victimization curtailed Pawis’ choices. In making the ultimate determinations about Pawis’ sentence, Reinhardt J. describes “Ms. Pawis’s actions were inexcusable, but they were the result of personal social conditions that were objectively beyond her control.”680 The judge bolsters this understanding with the observation that “[s]he was a young, inexperienced, emotionally damaged and immature  675  Ibid. at para. 53. Ibid. 677 Ibid. at para. 52. 678 Ibid. at para. 86. 679 Ibid. at para. 87. 680 Ibid. at para. 102. 676  135 mother trying to accomplish a very difficult task, without adequate skills, training or support.”681 This background Reinhard J. establishes helpfully sets out the events leading to the offence, including Pawis’ personal history and her recognition of her own caregiving limitations in her attempts to navigate pregnancy and motherhood decisions without support. Within Reinhardt J.’s sensitive exploration of how Pawis’ experiences of victimization within colonization, the judge also allows entry points for recognition of her agency. For example, Reinhardt J.’s comments “[t]o her credit, she asked the Native Child and Family Services Worker…to intervene and remove the child from her care…prior to assaulting her child,”682 adding that she “knew she was a danger to her totally dependent and helpless son, but could not find the resources either in herself, or in the community, to protect him.”683 These same issues become aggravating because due to the facts, Reinhardt J. must consider s. 718.2(a)(ii.1) (evidence that the offender abused someone under 18 years old in the offence)684 and s.718.2(a)(iii) (evidence of abuse of trust or authority over the victim in commission of the offence)685 of the Code. Reinhardt J. finds these factors aggravating because Pawis committed “a serious breach of trust” against her “totally dependent and helpless son.”686 The judge notes “[t]hese factors suggest that the appropriate result should be a sentence of incarceration.”687 However, consistent with the tenor of judicial sensitivity running through the judgment, Reinhardt J. concludes “after considerable deliberation”688 that Pawis’ history of victimization against the backdrop of colonization sufficiently mitigates to outweigh what would otherwise  681  Ibid. at para. 103. Ibid. at para. 104. 683 Ibid. at para. 98. 684 Criminal Code, supra note 14 at s. 718.2(a)(ii.1). 685 Ibid. at s.718.2(a)(iii). 686 Pawis, supra note 610 at para. 98. 687 Ibid. at para. 99. 688 Ibid. at para. 100. 682  136 require a sentence of incarceration, permitting a conditional sentence.689 Reinhardt J. references Pawis’ lack of family support to assist her parenting, and the long-term impacts of her emotionally isolated and impoverished upbringing, products of her mother’s frequent absence and her grandmother’s abuse.690 Reinhardt J. finds that Pawis’ family circumstances “cannot be solely blamed on her.”691 The judge notes that Pawis has been “distraught throughout this [criminal justice] process, and we have had to adjourn the hearing on more than one occasion because she was unable to proceed without completely losing her composure.” 692 Pawis represents a judgment that not only complies with the judicial duty toward Aboriginal offenders, but also thoughtfully integrates understandings of how victimization constrains Aboriginal women’s options and foments vulnerability to criminalization within the broader context of colonization. I return to this decision in Chapter 4, where I discuss how prison is constructed in the judgment vis-à-vis rehabilitation, given the psychologist’s thoughtful recommendation that Pawis’ treatment needs are better served in the community and Reinhardt J.’s nuanced adoption of this view. 3.4 Decontextualizing the Gladue analysis: Problems in judicial reasoning about the individually and collectively victimizing colonization Turning to focus more directly on judicial consideration of the unique systemic and background factors that inform the Gladue analysis, the cases I discuss in this section engage with judicial discourses about Gladue factors and victimization. I begin with R. v. Whitford693 because the presentation of mitigating and aggravating factors in the judgment both implicate 689  Reinhardt J. lists other mitigating factors: “[h]er attempt to have the child removed from her care, her immediate confession, her guilty plea, her stringent reporting conditions, the lack of alcohol or intoxicants as a precipitating factor, her receptivity to counselling and remedial programs offered by the aboriginal community in Toronto.” [Pawis, supra note 610 at para. 107.] 690 Pawis, supra note 610 at para. 101. 691 Ibid. 692 Ibid. at para. 106. 693 R. v. Whitford, 2008 BCSC 1378. [Whitford]  137 issues related to the offender’s experiences of victimization. In this way, it appears that victimization effectively both mitigates and aggravates on sentencing. The Gladue analysis is referenced, but it is unclear whether or to what extent this analysis actually guided the determination of sentence. In R. v. Niganobe,694 the judge makes a comment that seems to neutralize that offender’s Gladue factors, to an extent, by abstracting her experience in a universalized reference – although ultimately, there is clear judicial recognition that systemic factors have constrained her life choices. In my review of the cases in my study, I noticed repeated instances exemplifying the trend highlighted by Ipeelee that post-Gladue cases have wrongly and inappropriately required Aboriginal offenders to demonstrate a causal link showing their background and systemic factors contributed to their coming before the courts. I move to R. v. Johnson695 to introduce this causality problem. As I discussed in Chapter 1, this artificial requirement is inimical to the goals and spirit of Gladue. Ipeelee clarified how courts must avoid this problem by identifying that it places an unreasonable evidentiary burden on Aboriginal offenders whose experiences of colonization are so entwined that it is impossible to disentangle these effects and to distill them into a causal explanation of criminalization.696 Within the cases I discuss in this section, I present the characterizations of Gladue factors that do appear in these cases to emphasize how these histories should, per Ipeelee, have simply been used to “provide the necessary context to enable a judge to determine an appropriate sentence.”697 Equally, within the individualized sentencing  694  R. v. Niganobe, 2008 CanLII 54322 (ON SC). [Niganobe] R. v. Johnson, 2011 YKTC 11. [Johnson] 696 See Ipeelee, supra note 16 at paras. 80-3. 697 Ibid. at para. 83. 695  138 process, these histories must be connected to the larger context and not overly particularized, as Gladue factors “need not be tied in some way to the particular offender and offence.”698 In Johnson, the judge reflects on how variability in information about background and systemic factors received by the courts affects the ability of judges to engage in the Gladue analysis, but this framework is problematic against the Ipeelee clarification that judges should not require a causal connection between Gladue factors and the offence in question. However, Johnson also represents judicial engagement with gendered issues in a way that impacts sentencing. Returning to the problem of courts erroneously requiring causal connections between Gladue factors and the offence, R. v. Jankovic699 illustrations one manifestation of this where the judge attributes the offender’s disadvantages (including experiences of victimization) to her nonAboriginal father, and expressly not to her Aboriginal mother. I discuss why this is inappropriate. In R. v. Bluebell,700 the judge squarely succumbs to the same causality problem rejected by Ipeelee by finding the offender failed to provide evidence of a connection between her Gladue factors and her offence. R. v. Collins701 presents the same problem, but here arising from the judge denying the relevance of systemic factors and instead relating the offender’s criminalization to her individual agency. This formulation is both misaligned with the Ipeelee clarification and also does not comport with the idea of agency within externally constrained choices from the victimization-criminalization continuum. I also use Collins to demonstrate how the Gladue analysis should involve contextualization and a shift in conceptual focus (to more restorative-oriented sanctions, where appropriate).  698  Ibid. R. v. Jankovic, 2004 ABPC 162. [Jankovic] 700 R. v. Bluebell, 2011 SKQB 203. [Bluebell] 701 R. v. Collins, 2009 CarswellOnt 9678 (Ont. Sup. Ct. Jus.) (WLeC). [Collins] 699  139 Overall, the cases I discuss in this section implicate problems in the Gladue analysis, which involves considerations of victimization through the overlap between Gladue factors and experiences of victimization. It should be noted that the problems I discuss have been elucidated by Ipeelee, which was decided after the below decisions transpired (so the judges whose reasoning I will discuss did not have the benefit of having consulted Ipeelee). I focus most directly on the Gladue analysis in this section because in the broader picture, when judges sentence Aboriginal women, the most sensitive Gladue analyses should be deepened by reference to ideas emergent from the victimization-criminalization continuum. The victimization-criminalization continuum and Gladue analysis have different focuses: gendered responses to and vulnerabilities from victimization and colonization and overincarceration, respectively. However, when sentencing Aboriginal women, both analyses with their respective focuses should be integrated such that the overall analysis is deepened. As such, broadly speaking, the cases I discuss in this section fail to achieve this depth – but in the final section of this chapter, I will turn to two cases that do achieve this balance. 3.4.1 Lisa Whitford In R. v. Whitford,702 the victimization-criminalization continuum that emerges suggests that experiences of victimization can act to both mitigate and aggravate on sentencing. Parrett J. sentences Lisa Whitford to six years imprisonment for manslaughter after she pled guilty to this included offence to her original charge of second-degree murder. Whitford had what she termed a “difficult relationship”703 with the deceased, who was violent toward her. Whitford and the deceased abused alcohol and crack cocaine together. She shot him after he approached her  702 703  Whitford, supra note 693. Ibid. at para. 10.  140 “cursing and swearing,”704 while she was pregnant. Parrett J. describes that she “is of aboriginal descent, and her mother is a member of the Nak’azdli Band,”705 with a background that is “horrendous,” “one of the bleakest cases I have ever encountered.”706 Drawing from the PSR, Parrett J. details that Whitford lived with her mother through an “unstable and abusive childhood” 707 in which she was extensively sexually abused by a boyfriend of her mother. Whitford turned to drugs and alcohol, ran away to live on the streets, and had several intimate relationships that were characterized by violence and drinking.708 She “became so distressed” upon learning the father of her three children would share custody after “severing the relationship”709 with him that she dove deeper into substance abuse. Whitford received a federal penitentiary term after an attempted robbery, which later became a “revolving door” of incarceration after repeated parole violations710 related to her substance abuse issues.711 Parrett J. recognizes that the sexual and physical violence Whitford suffered was continuous,712 stating that “[t]his is a woman who has made 41 emergency visits to the Prince George Regional Hospital over the years. On no less than five separate occasions, her jaw was broken during altercations with the men she was involved with.”713 Interestingly, both the mitigating and aggravating factors are similar, and both reflect the violence Whitford has endured throughout her life: Parrett J. finds “little in the way of mitigating factors, save and except for the accused’s troubled background and the abuse she has suffered  704  Ibid. Ibid. at para. 13. 706 Ibid. at para. 21. 707 Ibid. 708 Ibid. 709 Ibid. 710 Ibid. 711 Ibid. at para. 19. 712 Ibid. at para. 18. 713 Ibid. at para. 30. 705  141 over that time,”714 and “little in the way of aggravating factors, save and except for the sheer and total absence of any social value arising from the accused’s lifestyle and actions.”715 It appears that Whitford’s experiences of victimization effectively operate both to mitigate and aggravate sentencing. That is, her aggravating “lifestyle and actions” are inevitably connected to her victimization. Parrett J. clearly recognizes this connection when commenting that her spiral back into substance abuse and criminality from a clean period was triggered after having to share custody with an abusive ex-partner she had cut from her life and that her “revolving door”716 parole violations were a product of her substance abuse problems. These issues speak to the “tangle of barriers”717 that DeHart explains frustrate women’s ability to healthily and legally navigate their lives. Because experiences of victimization root the aggravating factor of the “sheer and total absence of any social value arising from the accused’s lifestyle and actions,”718 and this same victimization also grounds the mitigating factors of her “troubled background and abuse,”719 a complex portrait of the victimization-criminalization continuum emerges from the judgment. Nonetheless, Parrett J. does articulate that “[t]here is no doubt, in my view, that this is the history of a person with severe substance abuse problems who lacks education, conflict resolution skills, coping skills, and has continuously suffered both sexual and physical abuse.”720 Parrett J. does cite s. 718.2(e) of the Code and highlights aspects of Gladue.721 However, these principles are merely stated without explanation about how this analysis actually impacts the sentence determinations. Parrett J. merely appends the comment “[a]fter a careful  714  Ibid. at para. 33. Ibid. at para. 34. 716 Ibid. at para. 21. 717 DeHart, supra note 267 at 1378. 718 Whitford, supra note 693 at para. 34. 719 Ibid. at para. 33. 720 Ibid. at para. 16. 721 See Ibid. at paras. 35-8. 715  142 consideration of all the circumstances and the principles to be applied”722 to denote consideration of Gladue, without explaining what this consideration involved more concretely. Gladue describes that s. 718.2(e) requires a different “method of analysis,”723 and Ipeelee maintains that this constitutes a distinct “methodology.”724 Parrett J. does provide this methodology, denoting that [s]ection 718.2(e) directs sentencing judges to sentence aboriginal offenders individually but also differently because the circumstances of aboriginal people are unique. In sentencing an aboriginal offender, the judge must consider: (a) the unique, systemic, or background factors which have played a part in bringing the particular aboriginal offender before the courts; and (b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection.725 However, despite mentioning having considered this analysis, Parrett J. does not disclose what, if any, impact it has on the actual determination of sentence. Instead, Parrett J. determines Whitford must be separated from society for there to be any prospect of rehabilitation,726 and accepts the Crown’s range of sentence from five to eight years imprisonment – ultimately settling toward the middle of that range at six years. It seems that the PSR should have provided ample assistance in the performance and representation of the Gladue analysis in the judgment, because the judge describes it as “detailed and helpful.”727 Perhaps a more explicit discussion of the Gladue analysis was omitted in favour of the idea of rehabilitation through imprisonment, as Parrett J. notes that in her 19 months of pretrial custody, Whitford “appears to have made progress” by “at least for now on an institutional basis,” having “withdrawn from drugs and alcohol abuse,” and that the Ministry supports her  722  Ibid. at para. 40. Gladue, supra note 15 at para. 33. 724 Ipeelee, supra note 16 at para. 72. 725 Whitford, supra note 693 at para. 37. 726 Ibid. at para. 40. 727 Ibid. at para. 20. 723  143 having her young child with her in custody.728 I will discuss the issue of judges using or characterizing prison terms as sources of healing in Chapter 4. For now, it is important to note that the Gladue analysis has either been obviated by the portrayal of prison as treatment, or the Gladue analysis has been undergone but is not made transparent in the judgment. This creates a disjuncture between Parrett J.’s comments about Whitford’s experiences of victimization and her Gladue factors, as her victimization is discussed729 but not (at least not expressly) integrated into the Gladue analysis. 3.4.2 Jeanette Niganobe In R. v. Niganobe730 Gladue factors also seem to be framed in an almost neutralizing way, similar to how Whitford’s experiences of victimization were effectively both mitigating and aggravating. Jeanette Niganobe is sentenced to five years imprisonment for impaired driving causing death after she drove through a red light into an intersection and collided with a police car. Whalen J. found “little of a mitigating nature,”731 which seems to relate to the circumstances of the offence. Whalen J. goes into great depth detailing Niganobe’s personal history. The judge describes that she “is a full member of the Mississauga First Nation,”732 with family who are residential school survivors. Niganobe’s mother routinely physically abused her and disbelieved her when she disclosed she had been sexually assaulted. Whalen J. describes that in Niganobe’s youth, “brimming with anger, rebelling and acting out,”733 and “turning to alcohol,” she ran  728  Ibid. at para. 40. It is also important to recognize that the text of judgments do not and cannot fully represent the victimization histories experienced by the Aboriginal women in my thesis. Professor Michael Jackson has told me that he represented Whitford to get the Correctional Service of Canada to permit Whitford to have her daughter Jordyn with her in prison. Professor Jackson disclosed that Whitford’s history of abuse is much worse than even the judgment describes. [Personal correspondence from Michael Jackson (24 November 2012), email.] 730 Niganobe, supra note 694. 731 Ibid. at para. 64. 732 Ibid. at para. 33. 733 Ibid. at para. 34. 729  144 away and was taken into foster care.734 She came into repeated conflict with the law, including serving time in prison while still in her adolescence. Niganobe became involved in two intimate relationships involving much substance abuse – both resulting in separation after her partners abused her. She has two children from these relationships. Adverting to the intergenerational effects of colonization, Whalen J. states that “[h]er ties to family, culture and community have been fractured, and she has had little or no sense of being wanted or belonging,” 735 characterizing Niganobe as caught in a “cycle of dysfunction” within her family and community.736 Whalen J. describes this extensive background replete with violence and substance abuse as “a classic example of the problems discussed by the Supreme Court of Canada in Gladue.”737 When considering “the effect of the offender’s aboriginal origins on the sentence I otherwise think would be fit,” the judge finds “no question that Niganobe’s path in life has been affected by” Gladue factors.738 Whalen J. describes that Niganobe herself is a product of the cycle of poverty, lack of opportunity (including education and employment), racism, substance abuse, breakdown of family and community, absence of nurture and disconnectedness characteristic of many of our aboriginal communities because of the generations before her who have suffered residential schools and other racist or paternalistic policies that have created and maintained social cauldrons of dysfunction and despair. I do not doubt that these factors have had great adverse effect in the formation of her character, views and propensities. Those same antecedents, however, have made her resistant to many of the ordinary social and regulatory norms that must be respected and maintained for social co-existence, peace and progress in any society, no matter the race, colour or cultural origin.739  734  Ibid. at para. 38. Ibid. at para. 46. 736 Ibid. at para. 47. 737 Ibid. 738 Ibid. at para. 74. 739 Ibid [emphasis added]. 735