A Different Approach: Rethinking Probation
Shaunna Kelly
The enactment of 718.2(e) of the Criminal Code mandated a different approach to sentencing for Indigenous accused persons engaged in the criminal legal processes. Since then, the Supreme Court of Canada has encouraged the use of restorative approaches to sentencing, stating most recently in R. v. Parranto,[1]
Indeed, this Court has held that the 1996 sentencing reforms were intended to both ensure courts consider restorative justice principles and to address the problem of over‑incarceration in Canada.[2]
However, with limited sentencing options built into the Criminal Code, there is often a shortage of creative solutions presented to the Court which encourage genuine restorative processes, particularly where diversion is inappropriate. As a default, many justice participants rely heavily on probationary terms to encourage rehabilitation. Unfortunately, this well-meaning use of probation terms likely contributes to the over-incarceration of Indigenous people. This article will explore various considerations relating to reporting probation terms.
The Supreme Court of Canada has explained “restorative justice” as the restoration of the parties affected by the commission of an offence, including the victim, the community, and the offender. Restorative justice is not the same as rehabilitation: rehabilitation focuses on reforming the offender’s underlying criminal antecedents, whereas restorative justice processes seek to remedy the adverse effects of crime in a manner that addresses the needs of all the parties involved. Rehabilitation is a component of restorative justice, but not its only component. True restorative justice approaches will also include reparations to the victim and community, promotion of a sense of responsibility and acknowledgement of the harm done. [3]
There is a duty to consider the unique background factors of the Indigenous offender when determining the appropriate sentence. The unique circumstances of the individual, by necessity, include the effects of colonialism on the accused person’s lived experiences. It also relates to all aspects of the criminal legal system, including probation and parole. Therefore, an effective application of 718.2(e) would lean heavily on innovative sentencing practices available through community-based sanctions. Given that many traditional Indigenous sentencing conceptions hold restorative justice as the primary objective, alternatives focusing on community-based sanctions must be explored.[4]
The Indigenous population across Canada comprises various groups of people: Metis, Inuit, and First Nation people. There are 13 distinct groups of First Nations and 207 reserves in Ontario alone. Each of the distinct groups of First Nation people has unique languages, customs, and traditions. Indigenous peoples are vastly different and are often erroneously thought to be uniform in their views on justice. This often leads to chronic misunderstanding and paternalistic approaches when attempting to determine what is right for Indigenous communities. This is best illustrated in the enactment of laws of general applicability meant to circumvent the over-representation of Indigenous people in the Canadian criminal legal system. The reality is that accessibility to programming specifically crafted for the community and identity varies from place to place in both availability and scale. Thus, restorative justice must incorporate those communities' views and available resources.
When addressing the over-representation of Indigenous people in the criminal legal system, it has been said by various academics and leaders that “substantive equality calls for a different approach.”[5] This is a concept that is widely accepted and noted in Canadian political discourse and debate. A different approach to sentencing Indigenous people would include empowering and trusting community-based organizations to assist with rehabilitating the accused person and working with the accused person to obtain accountability for those harmed through their actions.
A different approach to sentencing Indigenous people would include empowering and trusting community-based organizations to assist with rehabilitating the accused person and working with the accused person to obtain accountability for those harmed through their actions.
Indigenous peoples are unique compared to their non-Indigenous counterparts within the criminal legal system. This uniqueness should be celebrated, but it also mandates a different approach that necessarily emphasizes the need for creative alternatives to traditionally accepted sentencing approaches. Unfortunately, one of the ways this commonly manifests itself is through lengthy “reporting” probation orders.
Respectfully, a lengthy term of probation that requires reporting efforts to rehabilitate is not always the best practice to follow. A three-year term of probation will often guarantee that the accused person is kept within the criminal legal system for an extended period; one only needs to look at concepts of systemic discrimination and how they translate to the over-representation of Indigenous people to see how this plays out in practice. Allowing for such lengthy and potentially unnecessary terms of probation in support of rehabilitative efforts should be avoided.
In 2020, the Supreme Court of Canada released R. v. Zora,[6] which discussed the appropriateness of terms and conditions. Although the discussion, in that case, focused on the issue of bail, similar concerns can be related to the use of probationary terms. The Court noted that the ongoing use of conditions effectively set the accused person up to fail by regularly imposing terms that were “unnecessary, unreasonable, unduly restrictive, too numerous…”.[7] This overuse of terms and conditions offends the principle of restraint. Looking back at R. v. Gladue, it is clear that Parliament created a duty “to undertake the process of sentencing aboriginal offenders differently, in order to endeavour to achieve a truly fit and proper sentencing…”,[8] and the Supreme Court, as recently as the decision in R. v. Sharma, has stated that, “[t]he exercise of this duty pursuant to s.718.2(e) is to be undertaken in a manner consonant with principles of restraint, proportionality and individualization in sentencing.”[9]
The reality is that onerous conditions disproportionately impact vulnerable and marginalized populations.[10] The overuse of conditions oftentimes disregards specific issues, such as undiagnosed ADHD or FASD or suffering from concurrent addictions and mental health-related issues. This is particularly true when, due to funding limitations, a full assessment of the individual’s needs by a health care professional is unavailable, which is typically the case. The absence of proper assessments and resources to present to the Court has a negative effect on the overall sentence, as the absence of that information may instead support increased use of terms and conditions. If the purpose of the terms imposed is based on the need to provide oversight and accountability to the legal system, then the order is not truly encouraging rehabilitation. It may encourage the exact opposite. When too many onerous and demanding conditions are asked of the accused person, and they feel they are unable to follow through on all of them at once, they may give up entirely, unable to break those terms down to smaller goals to be accomplished individually. That is not truly rehabilitation.
Lengthy probationary terms should only be considered when the protection of the public is given primacy over rehabilitation. One such example is the need to protect the victim. It is not uncommon that a three-year term of probation prohibits the accused person from contact with a particular person or business. That term, however, does not require reporting probation to accompany it.
But suppose the goal of the probation order is, indeed, the rehabilitation of the accused person; before imposing a reporting condition, the parties may first want to consider what other community-based resources are available before turning to probation as an overarching part of their plan. It may be that there are no community-based programs or supports. In that case, a reporting probation would be able to connect the accused person in an otherwise deficient plan, but where there are real and substantive resources in place, one must ask how probation can truly contribute to that plan beyond mere oversight of Indigenous organizations and the community. It is problematic to insist that a colonialist construct oversee the actions and support of Indigenous organizations.
It is important to trust available resources and the community to assist through the process. Anecdotally, it appears that persons before the Court are no less likely to engage in cultural programming if they are forced to report it to probation. The impact of the individual’s previous experience with probation, their relationship with a particular probation officer and the cultural competency of that officer are all relevant considerations when determining whether probation is going to be an effective tool in sentencing. It is quite unfortunate that the courts have no oversight into the role of the probation office. It is hard to predict whether the probation officer assigned to a particular case will have the necessary compassion and cultural competency to truly understand the complex relationship that an Indigenous person may have with the Canadian legal system. The probation officer is an employee embedded within the colonialist system, in which systemic discrimination and racism continue to run rampant. And this is the context in which the Court must be presented with submissions to properly contextualize whether a reporting probation is needed in the unique and specific case that is being presented to them. It is recommended by the author that where there are sufficient and realized community supports with tangible plans and an articulated path to move forward, deference should be given to those restorative justice processes, and proper submissions should align with this. It is pertinent for counsel to present a case to the Court that can provide some assurance of accountability and that explains how that can be achieved without the use of a reporting term on a probation order, where appropriate.
It is common practice for community service providers to take the position that they should not be placed in a supervisory position that would require them to breach the accused person for failure to complete rehabilitative programs. This is partly due to the realism of rehabilitation: no path will be perfect, and there will be missteps and failures along the path to healing. Successes are not necessarily measured by the completion of a program, but rather by the engagement and the relationships that are formed to assist in reducing the underlying causes of the offending behaviour.
One may also want to consider using the term “Sign all releases as required by Probation Officer”. As mentioned above, demanding oversight of community-based programs is problematic. It forces the community-based service provider to report back. It places the program managers in an awkward position, particularly if the probation office is demanding real and tangible “results” that may differ from what success looks like in the eyes of the service provider. Forcing this type of reporting back to probation may be fundamentally destructive to the purpose of the order. With the looming threat of criminal prosecution for failure to succeed in rehabilitative programming, the requirement to report may produce the opposite result; any little bump or hurdle faced by the individual may cause them to avoid continued attempts to engage for fear that a charge will be laid. The power imbalance in that circumstance puts that person in a deficit right from the initial release stage.
Thus, a focus on rehabilitation should not result in a condition requiring that probation be deemed “reporting” probation. In some cases, mandatory reporting of the rehabilitative terms does nothing to support the rehabilitative component other than to give the courts piece of mind that the work is being completed. When there are inherent barriers erected through lived experience and interactions with the legal system, it is more possible that the reporting condition will, in fact, contribute to further charging of the accused person rather than encouraging the individual to follow through with the discharge planning. There are other ways to satisfy the Court that the individual’s rehabilitative needs are being met, but the Court must be informed of those alternatives and, thus, it is important that structured and descriptive submissions are made not only on the existence of resources in the community, but how they operate in relation to the plan that is presented.
In R. v. Bissonnette, the Court noted the following about rehabilitation:[11]
Lastly, the objective of rehabilitation is designed to reform offenders with a view to their reintegration into society so that they can become law‑abiding citizens. This penological objective presupposes that offenders are capable of gaining control over their lives and improving themselves, which ultimately leads to a better protection of society. M. Manning and P. Sankoff note that rehabilitation “is probably the most economical in the long run and the most humanitarian objective of punishment” (Manning, Mewett & Sankoff: Criminal Law (5th ed. 2015), at ¶1.155). Along the same lines, I would reiterate my comment in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, that “[r]ehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world” (para. 4).
Thus, where there is strong community support expressed through character references, Gladue reports, or court support workers and a release plan, the need to assign a probation officer to oversee the rehabilitative attempts should be less necessary.
In conclusion, there are instances where unnecessary and often counterproductive lengthy terms of probation are imposed in an attempt to focus on rehabilitation. Section 718.2(e) not only justifies the need for a different approach for Indigenous people, but also demands it. That different approach is found in the empowerment and trust of community-based organizations.
[1] [2021] S.C.J. No. 46, 2021 SCC 46 at para. 45 (S.C.C.).
[2] See also, R. v. Gladue, [1999] 1 S.C.R. 688, [1999] S.C.J. No. 19 at para. 57 (S.C.C.) and R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5 at paras. 16-20 (S.C.C.).
[3] R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5 at para. 8 (S.C.C.).
[4] R v. Wells, [2000] 1 S.C.R. 207, 2000 SCC 10 at para. 38 (S.C.C.).
[5] The Honourable John McKay, Chair, Indigenous People in the Federal Correctional System: Report of the Standing Committee on Public Safety and National Security(House of Commons, June 2018, 1st Sess., 42nd Parl.) at footnote 88: SECU, Savannah Gentile (Director, Advocacy and Legal Issues, Canadian Association of Elizabeth Fry Societies) (November 23, 2017), online: https://www.ourcommons.ca/DocumentViewer/en/42-1/SECU/meeting-86/evidence.
[6] [2020] S.C.J. No. 14, 2000 SCC 14 (S.C.C.).
[7] R. v. Zora, [2020] S.C.J. No. 14, 2000 SCC 14 at para. 26 (S.C.C.).
[8] R. v. Gladue, [1999] 1 S.C.R. 688, [1999] S.C.J. No. 19 at para. 33 (S.C.C.).
[9] R. v. Sharma, [2022] S.C.J. No. 39, 2022 SCC 39 at para. 247 (S.C.C.).
[10] R. v. Zora, [2020] S.C.J. No. 14, 2000 SCC 14 at para. 79 (S.C.C.).
[11] [2022] S.C.J. No. 23, 2022 SCC 23 at para. 48 (S.C.C.).
