R. v. Gladue

R. v. Gladue
Collection
Supreme Court Judgments
Date
1999-04-23
Report
[1999] 1 SCR 688
Case number
26300
Judges
Lamer, Antonio; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Cory, Peter deCarteret; Iacobucci, Frank; Bastarache, Michel; Binnie, William Ian Corneil
On appeal from
British Columbia
Subjects
Criminal law
Notes
SCC Case Information: 26300
Decision Content
R. v. Gladue, [1999] 1 S.C.R. 688
Jamie Tanis Gladue Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General of Canada, the Attorney
General for Alberta and Aboriginal Legal
Services of Toronto Inc. Interveners
Indexed as: R. v. Gladue
File No.: 26300.
1998: December 10; 1999: April 23.
Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, Iacobucci, Bastarache and Binnie JJ.
on appeal from the court of appeal for british columbia
Criminal law ‑‑ Sentencing ‑‑ Aboriginal offenders ‑‑ Accused sentenced to three years’ imprisonment after pleading guilty to manslaughter ‑‑ No special consideration given by sentencing judge to accused’s aboriginal background ‑‑ Principles governing application of s. 718.2 (e) of Criminal Code ‑‑ Class of aboriginal people coming within scope of provision ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 718.2 (e).
The accused, an aboriginal woman, pled guilty to manslaughter for the killing of her common law husband and was sentenced to three years’ imprisonment. On the night of the incident, the accused was celebrating her 19th birthday and drank beer with some friends and family members, including the victim. She suspected the victim was having an affair with her older sister and, when her sister left the party, followed by the victim, the accused told her friend, “He’s going to get it. He’s really going to get it this time”. She later found the victim and her sister coming down the stairs together in her sister’s home. She believed that they had been engaged in sexual activity. When the accused and the victim returned to their townhouse, they started to quarrel. During the argument, the accused confronted the victim with his infidelity and he told her that she was fat and ugly and not as good as the others. A few minutes later, the victim fled their home. The accused ran toward him with a large knife and stabbed him in the chest. When returning to her home, she was heard saying “I got you, you fucking bastard”. There was also evidence indicating that she had stabbed the victim on the arm before he left the townhouse. At the time of the stabbing, the accused had a blood‑alcohol content of between 155 and 165 milligrams of alcohol in 100 millilitres of blood.
At the sentencing hearing, the judge took into account several mitigating factors. The accused was a young mother and, apart from an impaired driving conviction, she had no criminal record. Her family was supportive and, while on bail, she had attended alcohol abuse counselling and upgraded her education. The accused was provoked by the victim’s insulting behaviour and remarks. At the time of the offence, the accused had a hyperthyroid condition which caused her to overreact to emotional situations. She showed some signs of remorse and entered a plea of guilty. The sentencing judge also identified several aggravating circumstances. The accused stabbed the deceased twice, the second time after he had fled in an attempt to escape. From the remarks she made before and after the stabbing it was clear that the accused intended to harm the victim. Further, she was not afraid of the victim; she was the aggressor. The judge considered that the principles of denunciation and general deterrence must play a role in the present circumstances even though specific deterrence was not required. He also indicated that the sentence should take into account the need to rehabilitate the accused. The judge decided that a suspended sentence or a conditional sentence of imprisonment was not appropriate in this case. He noted that there were no special circumstances arising from the aboriginal status of the accused and the victim that he should take into consideration. Both were living in an urban area off‑reserve and not “within the aboriginal community as such”. The sentencing judge concluded that the offence was a very serious one, for which the appropriate sentence was three years’ imprisonment. The majority of the Court of Appeal dismissed the accused’s appeal of her sentence.
Held: The appeal should be dismissed.
The considerations which should be taken into account by a judge sentencing an aboriginal offender have been summarized at para. 93 of the reasons for judgment. The following is a reflection of that summary.
Part XXIII of the Criminal Code codifies the fundamental purpose and principles of sentencing and the factors that should be considered by a judge in striving to determine a sentence that is fit for the offender and the offence. In that Part, s. 718.2(e) mandatorily requires sentencing judges to consider all available sanctions other than imprisonment and to pay particular attention to the circumstances of aboriginal offenders. The provision is not simply a codification of existing jurisprudence. It is remedial in nature and is designed to ameliorate the serious problem of overrepresentation of aboriginal people in prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing. There is a judicial duty to give the provision’s remedial purpose real force. Section 718.2 (e) must be read in the context of the rest of the factors referred to in that section and in light of all of Part XXIII. In determining a fit sentence, all principles and factors set out in that Part must be taken into consideration. Attention should be paid to the fact that Part XXIII, through certain provisions, has placed a new emphasis upon decreasing the use of incarceration.
Sentencing is an individual process and in each case the consideration must continue to be what is a fit sentence for this accused for this offence in this community. The effect of s. 718.2(e), however, is to alter the method of analysis which sentencing judges must use in determining a fit sentence for aboriginal offenders. Section 718.2(e) directs judges to undertake the sentencing of such 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 may 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. In order to undertake these considerations the sentencing judge will require information pertaining to the accused. Judges may take judicial notice of the broad systemic and background factors affecting aboriginal people, and of the priority given in aboriginal cultures to a restorative approach to sentencing. In the usual course of events, additional case‑specific information will come from counsel and from a pre‑sentence report which takes into account the systemic or background factors and the appropriate sentencing procedures and sanctions, which in turn may come from representations of the relevant aboriginal community. The offender may waive the gathering of that information. The absence of alternative sentencing programs specific to an aboriginal community does not eliminate the ability of a sentencing judge to impose a sanction that takes into account principles of restorative justice and the needs of the parties involved.
If there is no alternative to incarceration the length of the term must be carefully considered. The jail term for an aboriginal offender may in some circumstances be less than the term imposed on a non‑aboriginal offender for the same offence. However, s. 718.2(e) is not to be taken as a means of automatically reducing the prison sentence of aboriginal offenders; nor should it be assumed that an offender is receiving a more lenient sentence simply because incarceration is not imposed. It is also unreasonable to assume that aboriginal peoples do not believe in the importance of traditional sentencing goals such as deterrence, denunciation, and separation, where warranted. In this context, generally, the more serious and violent the crime, the more likely it will be as a practical matter that the terms of imprisonment will be the same for similar offences and offenders, whether the offender is aboriginal or non‑aboriginal.
Section 718.2(e) applies to all aboriginal persons wherever they reside, whether on‑ or off‑reserve, in a large city or a rural area. In defining the relevant aboriginal community for the purpose of achieving an effective sentence, the term “community” must be defined broadly so as to include any network of support and interaction that might be available, including one in an urban centre. At the same time, the residence of the aboriginal offender in an urban centre that lacks any network of support does not relieve the sentencing judge of the obligation to try to find an alternative to imprisonment.
In this case, the sentencing judge may have erred in limiting the application of s. 718.2(e) to the circumstances of aboriginal offenders living in rural areas or on‑reserve. Moreover, he does not appear to have considered the systemic or background factors which may have influenced the accused to engage in criminal conduct, or the possibly distinct conception of sentencing held by the accused, by the victim’s family, and by their community. The majority of the Court of Appeal, in dismissing the accused’s appeal, also does not appear to have considered many of the relevant factors. Although in most cases such errors would be sufficient to justify sending the matter back for a new sentencing hearing, in these circumstances it would not be in the interests of justice to order a new hearing in order to canvass the accused’s circumstances as an aboriginal offender. Both the sentencing judge and all members of the Court of Appeal acknowledged that the offence was a particularly serious one. For that offence by this offender a sentence of three years’ imprisonment was not unreasonable. More importantly, the accused was granted, subject to certain conditions, day parole after she had served six months in a correctional centre and, about a year ago, was granted full parole with the same conditions. The results of the sentence with incarceration for six months and the subsequent controlled release were in the interests of both the accused and society.
Cases Cited
Referred to: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; R. v. Chartrand, [1994] 2 S.C.R. 864; R. v. McDonald (1997), 113 C.C.C. (3d) 418; R. v. J. (C.) (1997), 119 C.C.C. (3d) 444; R. v. Wells (1998), 125 C.C.C. (3d) 129; R. v. Hunter (1998), 125 C.C.C. (3d) 121; R. v. Young (1998), 131 Man. R. (2d) 61; R. v. Fireman (1971), 4 C.C.C. (2d) 82; R. v. Williams, [1998] 1 S.C.R. 1128; R. v. M. (C.A.), [1996] 1 S.C.R. 500.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 15 , 25 .
Constitution Act, 1982, s. 35 .
Criminal Code, R.S.C., 1985, c. C‑46 , Part XXIII [repl. 1995, c. 22, s. 6], ss. 718 , 718.1 , 718.2 [am. 1997, c. 23, s. 17], 742.1 [am. 1997, c. 18, s. 107].
Interpretation Act, R.S.C., 1985, c. I‑21, s. 12 .
Authors Cited
Canada. Canadian Sentencing Commission. Sentencing Reform: A Canadian Approach. Ottawa: The Commission, February 1987.
Canada. Debates of the Senate, vol. 135, No. 99, 1st Sess., 35th Parl., June 21, 1995, p. 1871.
Canada. Federal/Provincial/Territorial Ministers Responsible for Justice. Corrections Population Growth: First Report on Progress. Fredericton: Federal/Provincial/Territorial Ministers Responsible for Justice, February 1997.
Canada. House of Commons Debates, vol. IV, 1st Sess., 35th Parl., September 20, 1994, pp. 5871, 5873.
Canada. House of Commons Debates, vol. V, 1st Sess., 35th Parl., September 22, 1994, p. 6028.
Canada. House of Commons. Standing Committee on Justice and Legal Affairs. Minutes of Proceedings and Evidence, Issue No. 62, November 17, 1994, p. 62:15.
Canada. House of Commons. Standing Committee on Justice and Solicitor General. Report of the Standing Committee on Justice and Solicitor General on its Review of Sentencing, Conditional Release and Related Aspects of Corrections. Taking Responsibility, August 1988.
Canada. Law Reform Commission of Canada. Working Paper 11. Imprisonment and Release. Ottawa: The Commission, 1975.
Canada. Royal Commission on Aboriginal Peoples. Report of the Royal Commission on Aboriginal Peoples, vol. 4, Perspectives and Realities. Ottawa: The Commission, 1996.
Canada. Royal Commission on Aboriginal Peoples. Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada. Ottawa: The Commission, 1996.
Canada. Solicitor General. Consolidated Report. Towards a Just, Peaceful and Safe Society: The Corrections and Conditional Release Act ‑‑ Five Years Later. Ottawa: Solicitor General, 1998.
Canada. Statistics Canada. Canadian Centre for Justice Statistics. Adult Correctional Services in Canada, 1995‑96. Ottawa: The Centre, March 1997.
Canada. Statistics Canada. Infomat: A Weekly Review, February 27, 1998. “Prison population and costs”, p. 5.
Canadian Corrections Association. Indians and the Law. Ottawa: Queen’s Printer, 1967.
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Driedger on the Construction of Statutes, 3rd ed. by Ruth Sullivan. Toronto: Butterworths, 1994.
Jackson, Michael. “In Search of the Pathways to Justice: Alternative Dispute Resolution in Aboriginal Communities”, [1992] U.B.C. L. Rev. (Special Edition) 147.
Jackson, Michael. “Locking Up Natives in Canada” (1988‑89), 23 U.B.C. L. Rev. 215.
Kwochka, Daniel. “Aboriginal Injustice: Making Room for a Restorative Paradigm” (1996), 60 Sask. L. Rev. 153.
Manitoba. Public Inquiry into the Administration of Justice and Aboriginal People. Report of the Aboriginal Justice Inquiry of Manitoba, vol. 1, The Justice System and Aboriginal People. Winnipeg: Public Inquiry into the Administration of Justice and Aboriginal People, 1991.
Quigley, Tim. “Some Issues in Sentencing of Aboriginal Offenders”. In Continuing Poundmaker and Riel’s Quest: Presentations Made at a Conference on Aboriginal Peoples and Justice. Compiled by Richard Gosse, James Youngblood Henderson and Roger Carter. Saskatoon: Purich Publishing, 1994.
Schmeiser, Douglas A. The Native Offender and the Law, prepared for the Law Reform Commission of Canada. Ottawa: The Commission, 1974.
United States. Department of Justice. Office of Justice Programs. Bureau of Justice Statistics. Bulletin. Prison and Jail Inmates at Midyear 1998, by Darrell K. Gilliard, March 1999.
United States. The Sentencing Project. Americans Behind Bars: U.S. and International Use of Incarceration, 1995, by Marc Mauer. Washington: The Sentencing Project, June 1997.
APPEAL from a judgment of the British Columbia Court of Appeal (1997), 98 B.C.A.C. 120, 161 W.A.C. 120, 119 C.C.C. (3d) 481, 11 C.R. (5th) 108, [1997] B.C.J. No. 2333 (QL), affirming a judgment of Hutchinson J. sentencing the accused to three years’ imprisonment. Appeal dismissed.
Gil D. McKinnon, Q.C., and Michael D. Smith, for the appellant.
Wendy L. Rubin, for the respondent.
Kimberly Prost and Nancy L. Irving, for the intervener the Attorney General of Canada.
Goran Tomljanovic, for the intervener the Attorney General for Alberta.
Kent Roach and Kimberly R. Murray, for the intervener Aboriginal Legal Services of Toronto Inc.
The judgment of the Court was delivered by
//Cory and Iacobucci JJ.//
1 Cory and Iacobucci JJ.-- On September 3, 1996, the new Part XXIII of the Criminal Code, R.S.C., 1985, c. C-46 , pertaining to sentencing came into force. These provisions codify for the first time the fundamental purpose and principles of sentencing. This appeal is particularly concerned with the new s. 718.2 (e). It provides that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. This appeal must consider how this provision should be interpreted and applied.
I. Factual Background
2 The appellant, one of nine children, was born in McLennan, Alberta in 1976. Her mother, Marie Gladue, who was a Cree, left the family home in 1987 and died in a car accident in 1990. After 1987, the appellant and her siblings were raised by their father, Lloyd Chalifoux, a Metis. The appellant and the victim Reuben Beaver started to live together in 1993, when the appellant was 17 years old. Thereafter they had a daughter, Tanita. In August 1995, they moved to Nanaimo. Together with the appellant’s father and two of her siblings, Tara and Bianca Chalifoux, they lived in a townhouse complex. By September 1995, the appellant and Beaver were engaged to be married, and the appellant was five months pregnant with their second child, a boy, whom the appellant subsequently named Reuben Ambrose Beaver in honour of his father.
3 In the early evening of September 16, 1995, the appellant was celebrating her 19th birthday. She and Reuben Beaver, who was then 20, were drinking beer with some friends and family members in the townhouse complex. The appellant suspected that Beaver was having an affair with her older sister, Tara. During the course of the evening she voiced those suspicions to her friends. The appellant was obviously angry with Beaver. She said, “the next time he fools around on me, I’ll kill him”. The appellant told one of her friends that she wanted to test Beaver, and asked her friend to “hit on Reuben to see if he would go with her”, but the friend refused.
4 The appellant’s sister Tara left the party, followed by Beaver. After he had left, the appellant told her friend, “He’s going to get it. He’s really going to get it this time.” The appellant, on several occasions, tried to find Beaver and her sister. She eventually located them coming down the stairs together in her sister’s suite. The appellant suspected that they had been engaged in sexual activity and confronted her sister, saying, “You’re going to get it. How could you do this to me?”
5 The appellant and Beaver returned separately to their townhouse and they started to quarrel. During the argument, the appellant confronted him with his infidelity and he told her that she was fat and ugly and not as good as the others. A neighbour, Mr. Gretchin, who lived next door was awakened by some banging and shouting and a female voice saying “I’m sick and tired of you fooling around with other women.” The disturbance was becoming very loud and he decided to ask his neighbours to calm down. He heard the front door of the appellant’s residence slam. As he opened his own front door, he saw the appellant come running out of her suite. He also saw Reuben Beaver banging with both hands at Tara Chalifoux’s door down the hall saying, “Let me in. Let me in.”
6 Mr. Gretchin saw the appellant run toward Beaver with a large knife in her hand and, as she approached him, she told him that he had better run. Mr. Gretchin heard Beaver shriek in pain and saw him collapse in a pool of blood. The appellant had stabbed Beaver once in the left chest, and the knife had penetrated his heart. As the appellant went by on her return to her apartment, Mr. Gretchin heard her say, “I got you, you fucking bastard.” The appellant was described as jumping up and down as if she had tagged someone. Mr. Gretchin said she did not appear to realize what she had done. At the time of the stabbing, the appellant had a blood‑alcohol content of between 155 and 165 milligrams of alcohol in 100 millilitres of blood.
7 On June 3, 1996, the appellant was charged with second degree murder. On February 11, 1997, following a preliminary hearing and after a jury had been selected, the appellant entered a plea of guilty to manslaughter.
8 There was evidence which indicated that the appellant had stabbed Beaver before he fled from the apartment. A paring knife found on the living room floor of their apartment had a small amount of Beaver’s blood on it, and a small stab wound was located on Beaver’s right upper arm.
9 There was also evidence that Beaver had subjected the appellant to some physical abuse in June 1994, while the appellant was pregnant with their daughter Tanita. Beaver was convicted of assault, and was given a 15‑day intermittent sentence with one year’s probation. The neighbour, Mr. Gretchin, told police that the noises emanating from the appellant’s and Beaver’s apartment suggested a fight, stating: “It sounded like someone got hit and furniture was sliding, like someone pushed around” and “The fight lasted five to ten minutes, it was like a wrestling match.” Bruises later observed on the appellant’s arm and in the collarbone area were consistent with her having been in a physical altercation on the night of the stabbing. However, the trial judge found that the facts as presented before him did not warrant a finding that the appellant was a “battered or fearful wife”.
10 The appellant’s sentencing took place 17 months after the stabbing. Pending her trial, she was released on bail and lived with her father. She took counselling for alcohol and drug abuse at Tillicum Haus Native Friendship Centre in Nanaimo, and completed Grade 10 and was about to start Grade 11. After the stabbing, the appellant was diagnosed as suffering from a hyperthyroid condition, which was said to produce an exaggerated reaction to any emotional situation. The appellant underwent radiation therapy to destroy some of her thyroid glands, and at the time of sentencing she was taking thyroid supplements which regulated her condition. During the time she was on bail, the appellant pled guilty to having breached her bail on one occasion by consuming alcohol.
11 At the sentencing hearing, when asked if she had anything to say, the appellant stated that she was sorry about what happened, that she did not intend to do it, and that she was sorry to Beaver’s family.
12 In his submissions on sentence at trial, the appellant’s counsel did not raise the fact that the appellant was an aboriginal offender but, when asked by the trial judge whether in fact the appellant was an aboriginal person, replied that she was Cree. When asked by the trial judge whether the town of McLennan, Alberta, where the appellant grew up, was an aboriginal community, defence counsel responded: “it’s just a regular community”. No other submissions were made at the sentencing hearing on the issue of the appellant’s aboriginal heritage. Defence counsel requested a suspended sentence or a conditional sentence of imprisonment. Crown counsel argued in favour of a sentence of between three and five years’ imprisonment.
13 The appellant was sentenced to three years’ imprisonment and to a ten-year weapons prohibition. Her appeal of the sentence to the British Columbia Court of Appeal was dismissed.
II. Relevant Statutory Provisions
14 It may be helpful at this stage to set out ss. 718 , 718.1 and 718.2 of the Criminal Code as well as s. 12 of the Interpretation Act, R.S.C., 1985, c. I‑21 .
Criminal Code
Purpose and Principles of Sentencing
718. [Purpose] The fundamental purpose of sentencing is 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 that have one or more of the following objectives:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
718.1 [Fundamental principle] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
718.2 [Other sentencing principles] A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation or any other similar factor,
(ii) evidence that the offender, in committing the offence, abused the offender’s spouse or child,
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, or
(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization
shall be deemed to be aggravating circumstances;
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
Interpretation Act
12. Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.
III. Judicial History
A. Supreme Court of British Columbia
15 In his reasons, the trial judge took into account several mitigating factors. The appellant was only 20 years old at the time of sentence, and apart from an impaired driving conviction, she had no criminal record. She had two children and was expecting a third although he considered her pregnancy a neutral factor. Her family was supportive and she was attending alcohol abuse counselling and upgrading her education. The appellant was provoked by the deceased’s insulting behaviour and remarks. At the time of the offence, the appellant had a hyperthyroid condition which caused her to overreact to emotional situations. The appellant showed some signs of remorse and entered a plea of guilty.
16 On the other hand, the trial judge identified several aggravating circumstances. The appellant stabbed the deceased twice, the second time after he had fled in an attempt to escape. Also, the offence was of particular gravity. From the remarks she made before and after the stabbing it was very clear that the appellant intended to harm the deceased. Further, the appellant was not afraid of the deceased; indeed, she was the aggressor.
17 The trial judge considered that specific deterrence was not required in the circumstances of this case. However, in his opinion the principles of denunciation and general deterrence must play a role. He was of the view that the sentence should also take into account the need to rehabilitate the appellant and give her some insight both into her conduct and the effect of her propensity to drink. The trial judge decided that in this case it was not appropriate to suspend the passing of sentence or to impose a conditional sentence.
18 The trial judge noted that both the appellant and the deceased were aboriginal, but stated that they were living in an urban area off-reserve and not “within the aboriginal community as such”. He found that there were not any special circumstances arising from their aboriginal status that he should take into consideration. He stated that the offence was a very serious one, for which the appropriate sentence was three years’ imprisonment with a ten-year weapons prohibition.
B. Court of Appeal for British Columbia (1997), 98 B.C.A.C. 120
19 The appellant appealed her sentence of three years’ imprisonment, but not the ten-year weapons prohibition. She appealed on four grounds, only one of which is directly relevant, namely whether the trial judge failed to give appropriate consideration to the appellant’s circumstances as an aboriginal offender. The appellant also sought to adduce fresh evidence at her appeal regarding her efforts since the killing to maintain links with her aboriginal heritage. The fresh evidence showed that the appellant had applied to become a full status Cree, and that she had obtained that status for her daughter Tanita. She had also maintained contact with Beaver’s mother, who is a status Cree, and who was in turn assisting the appellant with the status applications.
20 The Court of Appeal unanimously concluded that the trial judge had erred in concluding that s. 718.2 (e) did not apply because the appellant was not living on a reserve. However, Esson J.A. (Prowse J.A. concurring) found no error in the trial judge’s conclusion that, in this case, there was no basis for giving special consideration to the appellant’s aboriginal background. Esson J.A. noted that the appellant’s actions involved deliberation, motivation, and “an element of viciousness and persistence in the attack”, and that the killing constituted a “near murder” (p. 138). He found that, on the facts presented in this case, it could not be said that the sentence, if a fit one for a non‑aboriginal person, would not also be fit for an aboriginal person. Esson J.A. concluded therefore that the trial judge did not err in not giving effect to the principle set out in s. 718.2 (e) of the Criminal Code and dismissed the appeal. Although it is not entirely clear from the reasons of Esson J.A., he appears also to have dismissed the appellant’s application to adduce fresh evidence regarding her efforts to maintain links with her aboriginal heritage.
21 Rowles J.A. (dissenting) reviewed many reports and parliamentary debates and determined that the mischief that s. 718.2 (e) was designed to remedy was the excessive use of incarceration generally, and the disproportionately high number of aboriginal people who are imprisoned, in particular. She stated that s. 718.2 (e) invites recognition and amelioration of the impact which systemic discrimination in the criminal justice system has upon aboriginal people. She referred to the importance of acknowledging and implementing the different conceptions of criminal justice and of appropriate criminal sanctions held by many aboriginal peoples, including, in particular, the conception of criminal justice as involving a strong restorative element.
22 In this case, Rowles J.A. agreed that the crime committed by the appellant was serious. The circumstances surrounding the offence were tragic for everyone, including the appellant’s children. Yet, the circumstances of the offence included provocation, superimposed on an undiagnosed medical problem affecting the appellant’s emotional stability. The offender was young and emotionally immature. She had an alcohol problem but no history of other criminal conduct or acts of violence. The success the appellant enjoyed while on bail awaiting trial showed that she was likely to be a good candidate for further rehabilitation. Rowles J.A. also referred favourably to the fresh evidence which showed that the appellant was taking steps to maintain links with her aboriginal heritage.
23 Rowles J.A. concluded that a sentence of three years’ imprisonment was excessive. The principles of general deterrence and denunciation had to be reflected in the sentence, but the sentence could have been designed to advance the appellant’s rehabilitation through a period of supervised probation. Rowles J.A. would have allowed the appeal and reduced the sentence to two years less a day to be followed by a three-year period of probation.
IV. Issue
24 The issue in this appeal is the proper interpretation and application to be given to s. 718.2 (e) of the Criminal Code . The provision reads as follows:
718.2 A court that imposes a sentence shall also take into consideration the following principles:
. . .
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
The question to be resolved is whether the majority of the British Columbia Court of Appeal erred in finding that, in the circumstances of this case, the trial judge correctly applied s. 718.2 (e) in imposing a sentence of three years’ imprisonment. To answer this question, it will be necessary to determine the legislative purpose of s. 718.2 (e), and, in particular, the words “with particular attention to the circumstances of aboriginal offenders”. The appeal requires this Court to begin the process of articulating the rules and principles that should govern the practical application of s. 718.2 (e) of the Criminal Code by a trial judge.
V. Analysis
A. Introduction
25 As this Court has frequently stated, the proper construction of a statutory provision flows from reading the words of the provision in their grammatical and ordinary sense and in their entire context, harmoniously with the scheme of the statute as a whole, the purpose of the statute, and the intention of Parliament. The purpose of the statute and the intention of Parliament, in particular, are to be determined on the basis of intrinsic and admissible extrinsic sources regarding the Act’s legislative history and the context of its enactment: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at paras. 20‑23; R. v. Chartrand, [1994] 2 S.C.R. 864, at p. 875; E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87; Driedger on the Construction of Statutes (3rd ed. 1994), by R. Sullivan, at p. 131.
26 Also of importance in interpreting federal legislation is s. 12 of the federal Interpretation Act , which provides:
12. Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.
27 Section 718.2(e) has already received judicial consideration in several provincial appellate court decisions: see, e.g., R. v. McDonald (1997), 113 C.C.C. (3d) 418 (Sask. C.A.); R. v. J. (C.) (1997), 119 C.C.C. (3d) 444 (Nfld. C.A.); R. v. Wells (1998), 125 C.C.C. (3d) 129 (Alta. C.A.); R. v. Hunter (1998), 125 C.C.C. (3d) 121 (Alta. C.A.); R. v. Young (1998), 131 Man. R. (2d) 61 (C.A.). This is the first occasion on which this Court has had the opportunity to construe and apply the provision.
28 With this introduction, we now wish to discuss the wording of s. 718.2 (e) and the scheme of Part XXIII of the Criminal Code , as well as the legislative history and the context behind s. 718.2 (e), with the aim of determining and describing the circumstances of aboriginal offenders. This discussion is followed by a framework for the sentencing judge to use in sentencing an aboriginal offender. The reasons then deal with the specific facts and sentence in this case.
B. The Wording of Section 718.2 (e) and the Scheme of Part XXIII
29 The interpretation of s. 718.2 (e) must begin by considering its words in context. Although this appeal is ultimately concerned only with the meaning of the phrase “with particular attention to the circumstances of aboriginal offenders”, that phrase takes on meaning from the other words of s. 718.2 (e), from the purpose and principles of sentencing set out in ss. 718 ‑718.2, and from the overall scheme of Part XXIII.
30 The respondent observed that some caution is in order in construing s. 718.2 (e), insofar as it would be inappropriate to prejudge the many other important issues which may be raised by the reforms but which are not specifically at issue here. However, it would be equally inappropriate to construe s. 718.2 (e) in a vacuum, without considering the surrounding text which gives the provision its depth of meaning. To the extent that the broader scheme of Part XXIII informs the proper construction to be given to s. 718.2 (e), it will be necessary to draw at least some general conclusions about the new sentencing regime.
31 A core issue in this appeal is whether s. 718.2 (e) should be understood as being remedial in nature, or whether s. 718.2 (e), along with the other provisions of ss. 718 through 718.2, are simply a codification of existing sentencing principles. The respondent, although acknowledging that s. 718.2 (e) was likely designed to encourage sentencing judges to experiment to some degree with alternatives to incarceration and to be sensitive to principles of restorative justice, at the same time favours the view that ss. 718 ‑718.2 are largely a restatement of existing law. Alternatively, the appellant argues strongly that s. 718.2 (e)’s specific reference to aboriginal offenders can have no purpose unless it effects a change in the law. The appellant advances the view that s. 718.2 (e) is in fact an “affirmative action” provision justified under s. 15(2) of the Canadian Charter of Rights and Freedoms .
32 Section 12 of the Interpretation Act deems the purpose of the enactment of the new Part XXIII of the Criminal Code to be remedial in nature, and requires that all of the provisions of Part XXIII, including s. 718.2(e), be given a fair, large and liberal construction and interpretation in order to attain that remedial objective. However, the existence of s. 12 does not answer the essential question of what the remedial purpose of s. 718.2 (e) is. One view is that the remedial purpose of ss. 718 , 718.1 and 718.2 taken together was precisely to codify the purpose and existing principles of sentencing to provide more systematic guidance to sentencing judges in individual cases. Codification, under this view, is remedial in and of itself because it simplifies and adds structure to trial level sentencing decisions: see, e.g., McDonald, supra, at pp. 460‑64, per Sherstobitoff J.A.
33 In our view, s. 718.2(e) is more than simply a re‑affirmation of existing sentencing principles. The remedial component of the provision consists not only in the fact that it codifies a principle of sentencing, but, far more importantly, in its direction to 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. It should be said that the words of s. 718.2(e) do not alter the fundamental duty of the sentencing judge to impose a sentence that is fit for the offence and the offender. For example, as we will discuss below, it will generally be the case as a practical matter that particularly violent and serious offences will result in imprisonment for aboriginal offenders as often as for non-aboriginal offenders. What s. 718.2(e) does alter is the method of analysis which each sentencing judge must use in determining the nature of a fit sentence for an aboriginal offender. In our view, the scheme of Part XXIII of the Criminal Code , the context underlying the enactment of s. 718.2 (e), and the legislative history of the provision all support an interpretation of s. 718.2 (e) as having this important remedial purpose.
34 In his submissions before this Court, counsel for the appellant expressed the fear that s. 718.2(e) might come to be interpreted and applied in a manner which would have no real effect upon the day‑to‑day practice of sentencing aboriginal offenders in Canada. In light of the tragic history of the treatment of aboriginal peoples within the Canadian criminal justice system, w