Mixed Messaging? Intimate Partner Violence Sentencing Amendments to the Criminal Code

SUMMARY

This comment discusses recent amendments to the Criminal Code¹ that added new intimate partner violence sentencing provisions, which came into force through An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts.² The Department of Justice described the purpose of the amendments as being “to toughen the criminal law response to domestic assault.”³ However, recent jurisprudence illustrates how these new measures appear to conflict with existing sentencing principles, particularly with respect to joint submissions and Indigenous offenders.

I. THE SENTENCING AMENDMENTS

Bill C-75 directs courts to “give primary consideration to the objectives of denunciation and deterrence” when sentencing offences involving “the abuse of a person who is vulnerable because of personal circumstances.”⁴ Additionally, the new provisions identify female Indigenous victims as being vulnerable people for the purposes of these sentencing objectives.⁵ By highlighting Indigenous women as being particularly vulnerable, Parliament likely intended to draw judicial attention to the disproportionately high levels of victimization experienced by Indigenous women, particularly in situations involving abuse by an intimate partner.⁶

Bringing increased judicial attention to the prevalent victimization of Indigenous women by intimate partners is certainly a laudable goal. Indeed, in its recently released final report, the National Inquiry into Missing and Murdered Indigenous Women and Girls found that Indigenous women who were murdered by their intimate partners were often subjected to “a pattern of ongoing and escalating violence and abuse” prior to their deaths.⁷ The commissioners pointed to issues of transparency in the Criminal Code’s sentencing principles and inconsistencies with principles and values of Indigenous Peoples, noting that “[t]hese factors contribute to Indigenous Peoples’ distrust of the justice system.”⁸

However, these newly added provisions may provide little more than lip service in terms of effecting substantive change. At the time of writing, judges have had more than one year to begin implementing these new sentencing objectives.⁹ So far, however, there seems to be an uneasy interaction between new and existing sentencing objectives, including the restrictions on judicial discretion when joint submissions are proposed and the treatment of Indigenous offenders. If left unaddressed, these conflicts could lead to further distrust of the criminal justice system among Indigenous Peoples.

II. R v AKLOK: THE DIFFICULTY WITH THE “SO UNHINGED” TEST FOR JOINT SUBMISSIONS

R v Aklok¹⁰ was one of the first decisions to grapple with the new sentencing provisions for intimate partner violence against Indigenous women. The decision reveals how Bill C-75’s increased toughness toward sentencing offenders convicted of intimate partner offences can be undermined by an element of the existing sentencing regime: prioritization of the certainty of joint submissions over judicial discretion.¹¹

In Aklok, a joint submission served as a barrier that prevented the trial judge from imposing a sentence that corresponded with the new provisions. Justice Bychok of the Nunavut Court of Justice was presented with a joint submission requesting a global sentence of forty-five days of incarceration followed by nine months of probation for two incidents of intimate partner assault and a breach of a no-contact condition in conjunction with the second assault.¹² Bychok J. considered the terms of the proposed joint submission “unduly lenient”¹³ in the circumstances. He criticized the Crown for failing to support Parliament’s direction to consider the victim’s vulnerability and for failing to recognize “the primacy of the objectives of denunciation and deterrence” when sentencing “perpetrators of intimate partner violence.”¹⁴

Bychok J. expressed further difficulty reconciling his ultimate responsibility for sentencing the offender before him with his limited discretion for rejecting joint submissions from counsel.¹⁵ Driving this dissonance was the Supreme Court of Canada’s decision in R v Anthony-Cook.¹⁶ That case set out that the threshold for departing from a joint submission is where “the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest.”¹⁷ The Supreme Court of Canada further clarified that rejection of a joint submission “denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances…to believe that the proper functioning of the justice system had broken down.”¹⁸ Bychok J. observed that appellate courts’ interpretations of Anthony-Cook have been largely centred on the “‘so unhinged’ test,”¹⁹ and he viewed this test as “an impossible standard to apply.”²⁰ Ultimately, Bychok J. was compelled to follow appellate direction and impose the joint submission.²¹

In Aklok, it was clear that the limitations on judicial discretion over joint submission sentences prevented the meaningful realization of the sentencing objectives addressing the abuse of Indigenous women.²² Perhaps, in order for these provisions to impact the sentences for offenders convicted of intimate partner violence, “fuller judicial sentencing discretion” for offences against Indigenous women is required.²³

III. R c LP: BALANCING SENTENCING GOALS

R c LP²⁴ highlights yet another source of tension between the existing sentencing regime and the new sentencing objectives for intimate partner violence against Indigenous women. In this case, both the offender and the victim were Indigenous, which led to the objectives of the two systems becoming strained as they pushed the case in opposing directions. On one hand, courts must consider the objectives set out in s. 718.2(e),²⁵ as described in R v Gladue²⁶ and R v Ipeelee²⁷ and recognize that they were implemented to address the systemic factors leading to the overrepresentation of Indigenous offenders in Canada’s prison systems.²⁸ On the other hand, meeting the objectives set out in s. 718.04²⁹ supports Parliament’s aim to be tougher on intimate partner violence committed against Indigenous women.

To deal with this discordance in LP, a majority of the Court of Appeal of Québec thoroughly reviewed these sentencing principles and objectives as they relate to both the offender and the victim.³⁰ The Court remarked on the difficult nature of the balancing that must be performed in circumstances where “Gladue factors affecting the offender have to be weighed against the necessity to give appropriate consideration to the historical and systemic circumstances of Indigenous women victims of sexual violence in the domestic context.”³¹ The Court’s analysis of this particular dilemma is remarkably thorough in describing the analytical tightrope that judges must walk when imposing sentences for intimate partner violence involving both Indigenous offenders and Indigenous victims. Balancing the competing objectives of ss. 718.2(e) and 718.04³² is an area of continuing tension that should be closely monitored moving forward.

IV. CONCLUSION

Following the implementation of these sentencing amendments, judges have struggled to reconcile the existing framework with the tougher new approach to sentencing intimate partner violence against Indigenous women. It remains to be seen if further judicial interpretation will find a way to meaningfully balance the competing objectives that must be considered when sentencing perpetrators of intimate partner violence.

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^* JD Candidate (Saskatchewan).

¹ RSC 1985, c C-46.

² SC 2019, c 25 [Bill C-75].

³ Department of Justice Canada, Legislative Background: An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, as enacted (Bill C-75 in the 42^nd Parliament) (Ottawa: DOJC, August 2019) at 19, online (pdf): <www.justice.gc.ca/eng/rp-pr/csj-sjc/jsp-sjp/c75/c75.pdf> [perma.cc/D4FU-TPRQ].

⁴ Criminal Code, supra note 1, s 718.04, as amended by Bill C-75, supra note 2, s 292.1.

⁵ Criminal Code, supra note 1, ss 718.04, 718.201, as amended by Bill C-75, supra note 2, ss 292.1, 293.1.

⁶ See e.g. National Inquiry into Missing and Murdered Indigenous Women and Girls, Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls, vol 1a (Ottawa: NIMMIWG, 2019) at 628, 690, 719, online (pdf): <www.mmiwg-ffada.ca/wp-content/uploads/2019/06/Final_Report_Vol_1a-1.pdf> [perma.cc/4HSM-DVMD].

⁷ Ibid at 719.

⁸ Ibid.

⁹ The sentencing amendments came into force September 19, 2019: see Bill C-75, supra note 2, s 406.

¹⁰ 2020 NUCJ 37 [Aklok].

¹¹ Ibid at paras 80–84.

¹² Ibid at paras 5–7, 21.

¹³ Ibid at para 44.

¹⁴ Ibid at para 63.

¹⁵ Ibid at paras 33, 84.

¹⁶ 2016 SCC 43, [2016] 2 SCR 204 [Anthony-Cook].

¹⁷ Ibid at para 32.

¹⁸ Ibid at para 34.

¹⁹ Aklok, supra note 10 at para 85. See ibid at paras 85–91. The Court of Appeal for Saskatchewan recently adopted the “so unhinged” test for rejecting a joint submission: R v Pasiechnik, 2020 SKCA 31 at para 27, quoting Anthony-Cook, supra note 16 at para 34.

²⁰ Aklok, supra note 10 at para 86.

²¹ Ibid at para 94.

²² Ibid at paras 92–94.

²³ Ibid at para 92.

²⁴ 2020 QCCA 1239, 393 CCC (3d) 1 [LP].

²⁵ Criminal Code, supra note 1.

²⁶ [1999] 1 SCR 688, 1999 CanLII 679 [Gladue cited to SCR].

²⁷ 2012 SCC 13, [2012] 1 SCR 433 [Ipeelee].

²⁸ Gladue, supra note 26 at paras 49–51, 87; Ipeelee, supra note 27 at para 75.

²⁹ Criminal Code, supra note 1.

³⁰ See LP, supra note 24 at paras 66–92.

³¹ Ibid at para 123.

³² Criminal Code, supra note 1.