JFK Court Report: Recent Cases from Ontario

“There can only be hope”: sentencing aboriginal offenders with compassion and context

R. v. Armitage, 2015 ONCJ 64

Justice Nakatsuru of the Ontario Court of Justice issued a remarkable decision in February regarding the sentencing of an aboriginal offender, Jesse Armitage.

Mr. Armitage was sentenced for several property crimes and breaches of court orders. He would go into open shops or restaurants and steal whatever he could find of value in a backroom or staff change room. He often committed these offences while on probation or bail for previous offences.

The sentencing decision is remarkable for its plain language. Justice Nakatsuru issued reasons that the average person could understand, rather than using complicated words and legal jargon, making them inaccessible to the person they most affect or the general public. The judgment does not just speak about Mr. Armitage, it expressly speaks to him. The court recognized that aboriginal people not only have a right to be heard, they also have a right to understand the decisions made about them, and to be shown that their voices have been heard, saying: “I am writing for Jesse Armitage”.

The decision recognizes the importance of the Gladue principles that apply in the sentencing of aboriginal offenders, and specifically discusses aspects of aboriginal history and contemporary social problems in Canada relevant to Jesse Armitage in detail. Justice Nakatsuru recognizes the legacy of residential schools and the intergenerational impacts from substance abuse, dependence on social assistance, involvement of child welfare authorities, and the separation from home communities and cultural practices. The court recognizes the particular effect of these issues on Mr. Armitage, and sees these as well as his mental health challenges as relevant to his criminal acts. The court recognizes the difficulty of sentencing in this context, and acknowledges that any judge can only ever see part of the picture of what brought an offender before the court. He expresses both his empathy and his frustration as a judge, in trying to craft a sentence that will help Mr. Armitage break out of a pattern of criminal behaviour. In his reasons, Justice Nakatsuru is clear that judges must try to see and understand what lies beneath the surface for each offender:

If I could describe Mr. Armitage as a tree, his roots remain hidden beneath the ground.  I can see what he is now.  I can see the trunk.  I can see the leaves.  But much of what he is and what has brought him before me, I cannot see.  They are still buried.  But I am sure that some of those roots involve his Aboriginal heritage and ancestry.  They help define who he is.  They have been a factor in his offending.  They must be taken into account in his sentencing.

These reasons do not describe sentencing as a an order from on high, but rather as a journey taken by the offender, judge, prosecutor and defence lawyer to arrive at the best result for the offender and the community. As the judge points out, sentences do not have to be “hard” to achieve justice, and too often aboriginal people in particular have “only felt the steel” when something gentler might have better furthered the goals of sentencing.

This decision should be of interest to aboriginal and non-aboriginal people, lawyers and non-lawyers alike. It is a demonstration of what criminal sentencing can be when participants in the justice system work together to account for and acknowledge the history and circumstances of aboriginal people in Canada, with an eye to helping the unique individual before them find a better path forward. It is a decision not of condemnation, excuse or despair, but of hope and commitment to individual humanity and its potential for rehabilitation.