RE-EVALUATING MORAL CULPABILITY IN THE WAKE Of GLADUE.

• Author: Lee, Sujung
• Position: Canada

INTRODUCTION 110 I PRINCIPLES OF SENTENCING AND RETRIBUTIVE PUNISHMENT 111 II SYSTEMIC AND BACKGROUND FACTORS IN GLADUE 114 III TENSION BETWEEN GLADUE FACTORS AND INDIVIDUAL AUTONOMY 120 A. Hamilton and Brissett and Francis 121 B. Gabriel, Jackson, and Morris 123 C. Lessons in Extending Gladue to Other Racialized Offenders 126 IV MORAL AGENCY IN THE FACE OF STATE-COMPLICIT OPPRESSION 129 A. Attribution of Responsibility for Social Oppression 131 B. Apportioning Responsibility in Terms of Diminished Moral Culpability 134 V CONCLUSION 136 INTRODUCTION

In R v Gladue, the Supreme Court of Canada interpreted s. 718.2(e) of the Criminal Code as mandating sentencing judges to consider the effects of systemic and background factors related to Canada's history of colonization when sentencing Indigenous offenders. (1) These factors have come to be called the 'Gladue factors.' Gladue represents the law's explicit recognition that an individual's social conditions, which are structured forces outside of his or her control, are relevant to the assessment of a proportionate sentence. It is unclear, however, exactly how Gladue factors translate to specific sentences. In this article, I argue that this lack of clarity arises from a tension between respect for individual autonomy--a key premise underlying our idea of criminal responsibility--and the appreciation of the social context in which one exercises that autonomy. This tension, in turn, has made courts reticent to extend the Gladue framework to non-Indigenous offenders. I ultimately attempt to provide a clearer conceptual framework for reconciling ideas of systemic and background forces with criminal responsibility, in the hope of showing that the Court's underlying reasoning in Gladue logically supports a re-evaluation of moral culpability for all systemicalfy oppressed offenders. My argument comprises four parts.

In Part I, I review the traditional principles of sentencing in Canadian criminal law. I discuss how the primacy of the proportionality principle, as codified in s. 718.1 of the Criminal Code, represents the justice system's preference for retributive theories of punishment over utilitarian theories. Gladue challenges the traditional principles of sentencing by calling into question an individualist conception of moral agency and the legitimacy of a political structure on which theories of retributive justice depend.

In Part II, I discuss the Court's reasons in Gladue and R v Ipeelee. (2) While these cases concede that systemic and background factors are relevant to fashioning a proportionate sentence, they fail to provide clear direction to judges on how these factors relate to either one's degree of responsibility or the seriousness of an offence.

In Part III, I discuss decisions subsequent to Gladue which have attempted to extend Gladue principles to non-Indigenous racialized offenders. I highlight the manner in which these decisions reveal the tension between the criminal justice system's desire to account for systemic and background factors and its desire to respect individual autonomy. Decisions that reject the application of Gladue to non-Indigenous offenders, like R v Hamilton and R v Brissett and Francis, are primarily concerned with the argument that the recognition of systemic issues will absolve the offender of all responsibility. (3) I argue that these decisions operate on impoverished views of moral agency and systemic injustice. In contrast, Justice Nakatsuru's Ontario Superior Court decisions, R v Jackson and R v Morris, provide a more nuanced understanding of these concepts by framing systemic issues as external constraints on one's choices, and by shifting the burden of responsibility for societal ills from the individual to the state. (4) In so doing, I reject the argument that the Gladue framework should be considered uniquely applicable to Indigenous offenders.

In Part IV, I build on Nakatsuru J's analyses by suggesting that in order to integrate systemic and background factors into ideas of criminal responsibility, the criminal justice system's individualist conception of moral agency must adapt to the realities of social oppression. Not only must courts recognize that oppressive conditions compromise our autonomous faculties, but they must also recognize that in some cases, the state is complicit in bringing about these conditions. While the fact of oppression does not absolve individuals of responsibility for their choices, it should call into question the state's ability to hold them accountable for those choices. In line with the arguments advanced by defence counsel and interveners in Morris, which is currently on appeal before the Ontario Court of Appeal, I suggest that where oppressive factors have demonstrably contributed to the commission of an offence, courts should explicitly recognize that these factors do in fact diminish the offender's criminal culpability.

I PRINCIPLES OF SENTENCING AND RETRIBUTIVE PUNISHMENT

In Canadian criminal law, the purpose and principles of sentencing are codified in s. 718 of the Criminal Code. Section 718.1 sets out the "fundamental principle" of sentencing: "A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender." (5) This principle is also known as the proportionality principle. While the sentencing judge must weigh the various principles and objectives of sentencing, all other principles are secondary to the principle of proportionality. (6) Indeed, one of the only grounds for appellate intervention with a trial judge's sentence is if the sentence is demonstrably unfit for the individual, thereby breaching the proportionality principle. The Supreme Court has repeatedly emphasized that "[s]entencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction." (7)

While principles of deterrence, denunciation and rehabilitation are influenced by different philosophies of punishment, the primacy of the proportionality principle signals the law's ultimate deference to retributive theories of punishment (also known as 'just desert' theory). Retributive theories argue that the state is justified in punishing a criminal offender because the offender deserves it. (8) That is, the offender's action inherently merits denunciation. Such an argument stands in contrast to utilitarian theories of punishment, which argue that punishment is justifiable only if it furthers a public good, such as social cohesion. (9) Whether or not the offender inherently deserves to be punished is beside the point. Unlike utilitarian views, the proportionality principle rationalizes an offender's sentence by reference to the particular individual, rather than some external good--the sentence is connected to the offender by virtue of his or her choice to commit a certain act. As such, the proportionality principle ensures that sentencing remains a "highly individualized process." (10) Because no two offences or offenders will be the same, proportionality will always depend upon the particular facts of a case.

In R v CAM, the Supreme Court, after reviewing the Canadian Sentencing Commission's 1987 report on sentencing reform, elevated the concept of retribution to a unifying principle that runs through the entire law of punishment. Justice Wilson held:

In my view, retribution is integrally woven into the existing principles of sentencing in Canadian law through the fundamental requirement that a sentence imposed be "just and appropriate" under the circumstances. Indeed, it is my profound belief that retribution represents an important unifying principle of our penal law by offering an essential conceptual link between the attribution of criminal liability and the imposition of criminal sanctions. With regard to the attribution of criminal liability, I have repeatedly held that it is a principle of "fundamental justice" under s. 7 of the Charter that criminal liability may only be imposed if an accused possesses a minimum "culpable mental state" in respect of the ingredients of the alleged offence. It is this mental state which gives rise to the "moral blameworthiness" which justifies the state in imposing the stigma and punishment associated with a criminal sentence." Wilson J further commented in Reference re s 94(2) of the Motor Vehicle Act (British Columbia) that Canada's prioritization of retributive theories of justice aligns with public morality:

It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a "fit" sentence proportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender "deserved" the punishment he received and feel a confidence in the fairness and rationality of the system. (12) However, retributive theories of punishment depend on several key assumptions that merit further examination. First, they assume that we live in "a background system of reciprocal political obligations", wherein citizens of the state have, at some imaginary point in time, voluntarily entered into "a certain system of rules and methods of enforcement which can and must then fairly be administered by means of imposition of the agreed sanction." (13) The state is therefore justified in punishing an offender because "a voluntary offence is taken to show that the offender in a sense chose or willed her own punishment, or at least consented to it, within a fair system of rules." (14)

The second, and more fundamental, assumption is that individuals are autonomous beings who are capable of being held morally responsible for breaching our obligations. This assumption is most effectively understood in terms of the philosophy of Immanuel Kant, a foundational figure in Western moral thought. In The Groundwork of the Metaphysics of...