Sentencing for the Protection of Indigenous Women and Girls - Tom Swanson

It is now widely known that our country has a long and woeful history of discrimination and systemic injustice perpetrated against its Indigenous population, such that it has led to a disproportionate over-representation of Indigenous people in the criminal justice system. This is particularly true for the prairie provinces. Despite Canada’s “seeming inability, or neglect, to meaningfully repair the damage with a sense of urgency,” courts in Canada have taken some steps in an attempt to make criminal proceedings more considerate of the circumstances facing many Indigenous offenders. One such attempt is the adoption of sentencing principles that are in accordance with the Supreme Court of Canada’s [“the Court”] decision in R v Gladue [“Gladue”], which aim to craft comparatively lighter sentences or to find a community or healing-based alternatives for Indigenous persons convicted of a crime where appropriate. As will be seen, the Gladue principles have their limits when faced with particularly heinous offences or with offenders who the courts deem to be incorrigible.

There also exists the concurrent issue of the staggering violence suffered by Indigenous women and girls, most often at the hands of a romantic partner or family member. In a similar vein to incarceration, Indigenous women are grossly overrepresented as victims of abuse and homicide when compared to national averages for non-Indigenous women. For this reason, the Government of Canada launched the National Inquiry Into Murdered and Missing Indigenous Women and Girls [“the NIMMIWG”] which shed light on the root cause of this violence and brought forth over two hundred calls to action to combat this grim and tragic tendency. In 2019, the same year that the final version of the NIMMIWG’s report was published, the Criminal Code [“the Code”] saw several amendments which incorporated the report’s findings, including amendments to sections 718.04 and 718.201. These sections of the Code work together to use sentencing objectives of denunciation and deterrence for offences that involve abuse of vulnerable persons and to provide additional consideration when the victim of abuse is an Aboriginal woman.

With this context in mind, what will follow is a summary of the details and reasoning of a recent case from the Manitoba Court of Queen’s Bench I”the MBQB”), R v Wood [“Wood”]. In Wood, a man was charged with murder and convicted of manslaughter after monstrously beating his wife to death while heavily under the influence of alcohol. Wood represents a situation in which Gladue principles intersected with sections 718.04 and 718.210’s new sentencing objectives brought about for the protection of vulnerable persons, particularly Indigenous women and girls.

A Grisly Murder Fueled by Intoxication

Both Mr. Wood and his wife were Indigenous persons who lived in the isolated and under-serviced community of St. Theresa Point First Nation. They met in 2004 and were married in 2010. Mr. Wood began to abuse Mrs. Wood in 2012 and would continue to do so for the remainder of their relationship. Mr. Wood faced four separate convictions for brutally assaulting his wife between 2012 and 2016. Each of these assaults involved the use of extreme force that resulted in serious harm. These assaults included such force as stomping on Mrs. Wood’s head and striking her while she was seven months pregnant. All of the assaults followed a similar pattern: Mr. Wood was always heavily intoxicated, and he was always in breach of bail or probation orders to keep away from his wife. These probation orders were aimed at trying to reduce the chance that he would continue to assault his wife, obviously to little effect.

Despite court orders to stay out of St. Theresa Point and to keep away from his wife, Mr. Wood travelled to his home community on January 27, 2018, to see his wife and to party with some of his relatives. While partying, Mr. Wood and the others all became very intoxicated from consuming cannabis, snorting crushed Percocets, and drinking a very potent homebrew alcoholic drink dubbed “super juice”. As the evening progressed, Mr. Wood got into an argument with his wife and, following the established pattern, this led to extreme physical violence. By 11:00 pm that evening, Mrs. Wood was dead. The autopsy report described the extensive damage that was done, stating “Mrs. Wood suffered many injuries to her head, torso, extremities, and organs. Numerous bones were broken including her jaw, left clavicle or collarbone, left wrist and all 24 ribs”. At trial, Mr. Wood was found not guilty of murder but guilty of manslaughter, party because his state of intoxication made it difficult to prove that he had a murderous intent in his assault.

Gladue Considerations

Before moving on to his analysis, Justice Chris Martin, writing for the Manitoba Court of Queen’s Bench (“the MBQB”), first gave an exposition on Mr. Wood’s background and upbringing. While in Wood these factors do not excuse the monstrosity of his abuse, they do provide some insight into how tragic life can lead to violent tendencies. As described by Martin J, “[p]overty, unemployment, lack of education and substance abuse were negative influences in Mr. Wood’s upbringing. He suffered verbal and physical abuse and witnessed domestic abuse; his father assaulted his mother numerous times. Not surprisingly, Mr. Wood started abusing alcohol and soft drugs around age 11.” To add to this, the community of St. Theresa Point itself is one that often deals with similar tragedies due to its isolation, overcrowding, and lack of services. These points were brought up to illustrate that Mr. Wood’s behaviour was a product of his environment.

The pre-sentencing report for Mr. Wood concluded by saying that he is at a high risk of reoffending but, interestingly, went further by saying that he is a suitable candidate for community supervision. Martin J of the MBQB firmly disagreed with the latter statement for a few reasons. Firstly, Mr. Wood was considered to be at a very high risk of continuing to harm others in his community due to his repeated offences and inability to meaningfully change his violent ways. Secondly, Mr. Wood’s moral blameworthiness was still considered very high due to the vast number of times he put his wife in danger. “Rehabilitation is a possibility, but nothing more…it is not realistic to believe his chances of moving past drunken violence can be ranked any better. Unfortunately, it appears his character is heavily ingrained.”

Sentencing Considerations

The analysis in Wood began with a listing of all the aggravating factors that would lead to heavier penalties for the crime. The factors included the sheer brutality of the beating, the vulnerability of Mrs. as a woman of smaller stature, Mr. Wood’s criminal record for domestic assault and breaching court orders, and the fact that he never should have been in St. Theresa Point or with his wife in any capacity in the first place. Martin J went on to explain that, according to section 718.04, denunciation is an important element of sentencing to condemn spousal violence, “particularly the threat to Indigenous women…and more so for those who cannot escape their situation”. Similarly, Martin J hoped that sentencing could act as a general deterrence to other potential offenders and act as a signal to these men that they must respect “the sacred place of Indigenous women as those who give life, who heal, who are truth tellers and who traditionally have defended their communities and lands”.

Regarding precedents, Martin J in Wood noted that a 15-year sentence for spousal manslaughter is on the higher end of the spectrum, but that sometimes a specific case will have reason to go beyond existing precedent. In Wood, the sentencing of the accused to 15 years of imprisonment was not a just sanction because “such a sentence would not adequately account for Mr. Wood’s dangerousness and, more critically, would not place enough emphasis on the vulnerability of Indigenous women as a factor.” Accordingly, Mr. Wood was sentenced to 18 years’ incarceration for manslaughter, and no alternative sentencing could be reached because “while restorative sentences are important in many situations of Indigenous victim and abuser, that is far less so in cases of murder and manslaughter.”

Final Thoughts

I believe that the MBQB’s 18-year sentence in Wood, despite being heavier than any preceding decision for manslaughter, is correct in light of all of the evidence and circumstances. Even though Wood still resulted in another Indigenous man in prison, it is hard to imagine any other outcome that could be considered when considering most individuals’ conception of crime and punishment. Mr. Wood’s crime was incredibly brutal, and he had already severely abused his partner time and time again by this time he had been charged for manslaughter. His actions rendered their four children forever without a mother and essentially caused the loss of a father. Even the court orders intended to make him stay away from Mrs. Wood and his community were of no use. Considering this recidivist tendency, could alternative sentencing have brought about meaningful rehabilitation in Wood? Mr. Wood’s many failed attempts to seek help for his problems seem to suggest that he could not have been rehabilitated.

Assuming that the sentence was fair, it still begs the question of exactly how much denunciation and deterrence can lead to the goal of reducing violence towards Indigenous women and girls. Generally speaking, how many offenders are truly deterred from crime just because of the possibility of harsher sentencing? Going further, for people who have experienced abuse for most of their lives and have issues of alcoholism and heavy drug use, is a harsh prison sentence really what they might be considering before/while they assault their partner? I ask these questions because it represents a difficult crossroads. Spousal abuse, especially in consideration of the NIMMIWG report, is absolutely a crime that must be denounced, and, in theory, deterrence should help lower the amount of abuse that happens. At the same time, it is unclear that harsher penalties actually will decrease abuse towards Indigenous women and girls.

As noted, cases such as Wood involve people experiencing inter-generational abuse, poverty, and tragedy. While the idea of sentencing for the protection of Indigenous women and girls has an important goal in mind, right now it seems to be more of a symbolic measure. We will have to see if it really decreases the prevalence of domestic abuse in Canada. What is ultimately more important is a widespread societal change that can improve the quality of life for people living with the effects of colonialism. This is something that our country has so far been ineffective in achieving, but I hope for a future where we can say that Canada truly represents a society of equity, even if it may still be many generations away.