To Right Historical Wrongs: Race, Gender, and Sentencing in Canada

Author: Carmela Murdocca
Publisher: Vancouver, BC: UBC Press, 2013. 257p.
Reviewer: David Milward | March 2014

Canada in 1996 passed into law a new provision in the federal Criminal Code, section 718.2(e), which reads: "all available sanctions or options other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders." Controversy has constantly surrounded this provision, both before it was officially passed by Parliament, and ever since then.

Many Canadians find it difficult to accept that an Aboriginal offender can be sentenced more leniently for the same crime as a non-Aboriginal offender. After all, the Aboriginal offender made the same moral choice to commit the same crime as the non-Aboriginal offender. Such an idea is offensive to many Canadians’ ideas of fairness and justice. The perception is therefore one of an unwarranted racial discount in sentencing for Aboriginal offenders. That perception, while understandable, fundamentally misunderstands what the provision is about. What is easily forgotten is that the provision mandates the search for reasonable alternatives to incarceration for all offenders. The provision is also recognition that Aboriginal offenders are very frequently products of a unique set of debilitating social circumstances that are not faced by other offenders, and that such circumstances are an ongoing cause of Aboriginal over-incarceration. The provision is also a call to Canadian judges to remedy Aboriginal over-incarceration through the sentencing process — to the extent that they can.

There are naturally of course questions about whether or not the social devastation faced by Aboriginal peoples can be addressed to any meaningful extent through the sentencing process. To Right Historical Wrongs by Carmela Murdocca, a sociology professor at York University, is an ambitious attempt to dive headlong into those questions.

There are two main theoretical frameworks that Murdocca relies on for her foray. One is the well known theory known as intersectionality, which strives to peel away the multiple layers of oppression that are sustained by race, gender, history, and economic disparity (among others). The other is Foucault’s concepts of biopower and biopolitics, which involve a study of how states exercise control not only over social relationships, but over human beings as biological entities.

Murdocca fuses the two together into a penetrating methodology for deconstruction, for which there are two primary targets. One target is the judicial interpretative framework of s. 718.2(e) as it concerns Aboriginal peoples specifically — finding expression through the Supreme Court of Canada decisions of R. v. Gladue and R. v. Ipeelee. The other target is the Ontario Court of Appeal decision of R. v. Hamilton, which extends sentencing analysis that parallels Gladue to other disadvantaged minorities such as Black Canadians who face social disadvantages that strongly resemble those faced by Aboriginal peoples.

The end result is a rather interesting as well as scathing critique. Section 718.2(e) and the interpretive frameworks surrounding it may speak to ameliorating the social disadvantages of certain minorities. However, the whole regime views the myriad factors at play through the lens of cultural difference between an oppressed minority and the privileged Canadian majority. The legal arguments, the factual conclusions, the sentencing outcomes, the entire exercise of sentencing, all reflect the dialogue of cultural difference.

Certainly cultural difference is part of the picture. But Murdocca’s viewpoint is that the regime is content to stop there, and thus comes nowhere close to getting the full picture. The full picture is a complex panacea of injustices, social inequities, patterns of discrimination, and racism, all of which were present in the historical past and have evolved and persisted over time into the present day. If the regime will not even look for the full picture, how can it provide reparative justice that will penetrate and remedy the social complexities behind racial inequality and over-incarceration? Section 718.2(e) is therefore a kind of containment governance. It may be shrouded with seemingly noble intentions, but it is ultimately a hollow gesture that comfortably preserves the status quo while dodging the tough and painful dialogue that true reparative justice demands. And because everything is readily ascribed to cultural difference, the Canadian state is conveniently and implicitly relieved of any ongoing responsibility to provide reparative justice.

I must say that the author is extremely meticulous in explaining and supporting her thesis. She picks apart reported court decisions and the legal arguments appearing in appellate factums with an extremely fine-toothed comb. She thereby exposes many of the finer points at play with a level of skill that would make some legal scholars envious.

Murdocca provides insights that even self-proclaimed experts on s. 718.2(e) may be surprised to learn. I am a little embarrassed to admit that includes myself. For example, I have long known that Aboriginal women and their particular organizations have voiced concerns over the potential of Aboriginal justice initiatives to endanger the safety of women and children in the communities. It was a treat to learn that Aboriginal women’s’ organizations expressed those concerns, even to the point of outright opposition, when s. 718.2(e) was still a work in progress. It was perhaps unfortunate that those voices got drowned out in the hail of praise that lauded the passing of the provision as a step towards progress. As another example, it was quite a revelation for me to learn that Marie Gladue’s story was not quite as depicted in the Supreme Court judgment, namely that she killed her common-law partner out of sexual jealousy. Murdocca’s study of the preliminary inquiry transcript reveals a quite different tale that got lost as the case made its way up the judicial ladder. What comes out instead was that Ms. Gladue had long experienced violent and sexual abuse from her partner, and her reaction to that abuse was helped along by a medical condition that made her more prone to acting out. The depth to which Murdocca explores her subject matters is alone worth the price of admission, and I recommend it to anyone studying or working in the field.

I do, however, have two significant concerns with the book as well. One is that the author is determined to sustain her thesis with such vigor that it, in my view, leads her into a trap of essentialism. Gladue mandates for each Aboriginal offender a report that sets out in detail the unique social circumstances faced by Aboriginal peoples, as well as their role in bringing an individual Aboriginal offender into the justice system.

There is a burgeoning amount of case law, much of it quite detailed and specific, on what is required for a Gladue report. And indeed much of that case law goes into how Gladue reports have content requirements that go well beyond what is included in a standard pre-sentence report. The Gladue reporting process can itself be very involved, as evidenced in locales where the practice is long established, such as in Toronto. Experienced Gladue report writers will go to great lengths to set out in exacting detail the history of how colonialism has affected the First Nation that the individual Aboriginal offender is from, how the Aboriginal offender has been specifically affected (even through multiple generations) by manifestations of colonialism such as the residential schools and the Sixties Scoop, and how the Aboriginal offender’s behavioral problems were moulded by those same factors.

Murdocca does mention this, but only either in passing or by giving it short shrift. For example, on p. 103 of her book she does explain briefly the Gladue report writing process, but then concludes: "Many of these sentencing reports show the ways in which colonialism has resulted in a range of ‘social disorders’ with no consideration of the broader context in which subjugation occurs." Certainly there are issues about the inconsistent or uneven quality of Gladue reports that have been provided to Canadian sentencing courts. And yet I saw no detailed explanation afterwards of how the reports she looked at did not provide consideration of the broader contexts.

The Gladue reporting process, when it is functioning properly, does try to go well beyond cultural differences between Aboriginal peoples and non-Aboriginal Canadians. It does try to pierce the complex social phenomena at work behind Aboriginal over-incarceration generally, as well as how those phenomena are affecting individual Aboriginal offenders when they come before sentencing courts. Whether the process, even when properly utilized goes far enough, whether it digs deep enough, and whether it can ever be a meaningful agent of fundamental social change, are certainly different questions that beg for more extensive scholarly treatment.

Murdocca is determined to depict the whole regime as a simple reduction to cultural difference. She thus, in my view, ends up giving insufficient attention to a counter-factual matter to which she needed to give much greater consideration. It leaves me concerned that the scholarly integrity of the work is undermined to a significant degree thereby.

My second criticism is that the book overall is long on the diagnostic, but rather short on suggesting a way forward. She does offer some concluding commentary towards the end about the need to explore a deeper reparative justice that goes beyond the limitations she identifies with s. 718.2(e). But the discussion is rather terse, vague, and undeveloped. The book ends up somewhat anti-climactic as it winds down. I can nonetheless recommend it as a worthwhile reading experience that provides interesting insights on deep seated problems that cry out for more attention.

Carmela Murdocca, Associate Professor, Department of Sociology, York University