This winter the Supreme Court (SCC) handed down a decision in the Carter case on the constitutionality of prohibiting assisted dying. This judgement is part of a series first started in PHS Community Services Society (safe drug injection sites) and continued in Bedford (sex work) on the expansion of the right to life, liberty and security of the person. When the Court of Appeal handed its decision upholding the assisted dying ban, I commented on this blog on how, even if the plaintiffs won at the Supreme Court (which they did, unsurprisingly for people who follow constitutional law and/or the issue), the result would be limited to being permitted to exercise a right instead of truly recognizing the equality of the group claiming this right. This post is in part of follow up on my initial thoughts and represents some of my reflections on the advancement of the right to life, liberty and security (section 7 of the Charter), and the fall of the right to equality/non-discrimination (section 15 of the Charter).
Sometime I am very proud of being Canadian, especially when we claim the moral high ground while blatantly disregarding basic international law norms. Do as I say, not as I do. For those who didn’t catch the sarcasm, this post does not talk about nationalistic pride. Instead it will explore briefly a major failure of our refugee and immigration system. This failure, I fear, is far from being the only one; it just so happens that we were made aware of it unlike most removed refugee claimants’ cases. The case I am referring to is the one of Adel Benhmuda and his family. Originally from Libya, he claimed refugee status in Canada in 2000, an application that was rejected by the Immigration and Refugee Board (IRB) in 2003. The government began removal procedure in 2008. Adel applied for a Pre-removal risk assessment, a procedure supposed to ensure that the removee will not be at risk of torture, cruel or unusual treatment, or death. The application was dismissed by an immigration officer and he was removed to Libya where he was detained upon arrival. He was subsequently tortured. He managed to smuggle his family out and claimed refugee status in Malta. Status was granted and Adel is now trying to come back to Canada.
Carter and the right to end one’s life
Last week the British Columbia Court of Appeal decided to allow the Attorney General’s appeal to the constitutional challenge of the assisted suicide prohibition: the Carter case. This case featured two persons named Gloria Taylor and Lee Carter. Both suffered from intractable and progressive diseases, and wished to have the option of physician assisted suicide when their life would become intolerable (they both passed away before the appeal was rendered). However, s 241(b) of the Criminal Code makes aiding or abetting a person to commit suicide a crime. Ms. Carter and Taylor challenged the constitutionality of the section alleging a violation of their right to life, liberty and security of the person, and of their right to equality. One of the major hurdles they faced was that a similar issue involving the same section of the Code was challenged on similar grounds and had been decided by the Supreme Court of Canada in the past. In Rodriguez, the plaintiff lost her appeal to the Supreme Court by a close 5 to 4 vote. Nevertheless, the trial judge, Justice Smith, found that she was not bound by the Supreme Court ruling because this case raised three new grounds: (1) the right to life was not at stake in Rodriguez; (2) two principle of fundamental justice did not exist at the time of Rodriguez, overbroadness and gross disproportionality; (3) the majority did not consider s 15 (equality) in its entirety in addition to the fact that recent Supreme Court decisions changed the applicable test. She found in the plaintiffs’ favour and declared the section unconstitutional with a grace period of one year for the government.
3. Reforming Aboriginal Sentencing
This section outlines possible course of actions to remedy the over incarceration of Aboriginal people through a reform of Aboriginal sentencing. In all circumstances, it is suggested that the government should at least enact an exception to mandatory minimum sentences for Aboriginal people if the circumstances warrants it in order to fully allow sentencing judge to implement s 718.2(2) of the Criminal Code. It is also suggested that a reform of Aboriginal sentencing should be accompanied with other socio-economic measures to properly deal with the over incarceration of Aboriginal people. More importantly, I acknowledge the fact that I am not Aboriginal and do not speak in Aboriginal people’s name. In the end effective and long-lasting solution will have to emanate and/or receive the accent of Aboriginal people in order to be legitimate and to further decolonisation goals.
2. Sentencing of Aboriginal Peoples
A. Sentencing Law in Canada
As succinctly demonstrated, Aboriginal over incarceration is a complex problem with various consequences on our society. Part of the problem and solution comes from the Canadian sentencing regime. Before exploring how the regime could be modify in hope of diminishing over incarceration, it is important to understand how it currently works. Sentencing is the last step of the criminal justice process and happens after a finding of guilt by a trial court or a plea of guilt. When the accused pleads guilty as the result of a plea bargain, there is often a joint submission by the defense and the Crown on the appropriate sentence. If not, there is a sentencing hearing where a judge determines the appropriate sentence after hearing both parties. Both parties can appeal the sentence to a court of appeal if the sentence was not predetermined by law, such as for murder where a sentence of life imprisonment is mandatory. Sentencing courts hold a lot of discretion when determining sentences, and are usually limited by only a maximum sentence and in certain cases a minimum sentence or a mandatory sentence. Judges are however not completely free to determine a sentence as they must follow broad sentencing principles as established first by common law and subsequently codified in the Criminal Code. The overarching principle of sentencing is proportionality, meaning that a “sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” Other principles include the consideration of aggravating and mitigating circumstances, sentences should be similar for similar crime in similar circumstances, and the least restrictive appropriate sentence should be impose. Sentences should also fulfil the following goal: denounce unlawful conduct; deter the offender and other persons from committing offences; separate offenders from society, where necessary; assist in rehabilitating offenders; provide reparations for harm done to victims or to the community; and promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
This is a three part series based on a paper I wrote not long ago. The style is more academic and the citation less user friendly, but I thought it was a nice follow up on last week post and it gives me a break during my vacation. Here is Part I:
Canada’s relationship with its Aboriginal population is bleak to say the least. Allies to the colonial powers at first, the Aboriginal Peoples of Canada quickly became outcasts as they were progressively pushed into reserves and their land “acquired” through a series of treaties. As they lost their military usefulness, the British government followed by the Canadian federal government started a policy of assimilation of Aboriginal peoples mainly through the Indian Act by effectively making them “wards of the crown”. The prohibition of Aboriginal ceremonies, diminished legal rights, and forcing children to attend residential schools were only a few of the “tools” of Canada’s assimilation policy. Since the 1970s, Aboriginal Peoples have started militating in order to obtain self-government, recognition of their ancestral and human rights, compensation for past wrongs and international recognition amongst other things. Nevertheless, Canada’s assimilationist policy had and continues to have an enduring effect on Aboriginal peoples who now have high level of poverty, alcoholism, unemployment, and low level of sanitation, education, housing, etc.