Alberta’s top court has cut the prison term of an Indigenous man who choked a woman nearly to death in front of two of her young children to four years from nine, ruling that even in crimes of serious violence, federal law requires judges to consider Indigenous ancestry when handing down a sentence.
While that principle is not new, the sentencing of Indigenous offenders has been inconsistent, the Alberta Court of Appeal said, with some judges minimizing the importance of Indigenous-related hardships.
The court said judges should try to walk in the shoes of Indigenous offenders before they sentence them.
“Sentencing judges must try to understand what influenced an Indigenous offender to act in the way he did,” Justice Jolaine Antonio and Justice Bernette Ho wrote. (A third judge, Justice Frederica Schutz, heard the case but did not participate in the ruling because she is on leave for health reasons unrelated to her judicial role, a court spokeswoman said.)
“This analysis involves empathy, imagination, and introspection, among other things. It imposes on the sentencing judge the difficult task of imagining a different life, and honestly asking how a person – not the world’s strongest or most resilient person – might be affected by such an experience.”
The result of that reasoning process for judges may be to reduce the offender’s responsibility for the crime.
“Constrained circumstances of Aboriginal offenders may diminish their moral culpability,” the court said, citing a 2012 Supreme Court ruling.
Rockie Ryan Rabbit’s grandparents, parents and mother’s siblings went to residential schools, and the family had a history of substance misuse, violence and mental illness. In the year prior to his unprovoked attack on a stranger that nearly killed her, one of his brothers and two cousins took their own lives and a third cousin was murdered in custody.
Under a 1996 federal law, jail is to be a last resort for all people who commit crimes, “with particular attention to the circumstances of aboriginal offenders.” In 1999, in a case called Gladue, the Supreme Court of Canada interpreted that law to mean that an offender’s background of disadvantage linked to Indigenous ancestry, such as a family history of residential schools, may reduce their moral culpability for their offence, and justify a lighter, or non-custodial, sentence.
The question for the justice system in Rockie Rabbit’s case was how to find a sentence proportionate to both the seriousness of his crime and to the challenges of his upbringing and personal circumstances as an Indigenous man.
In the summer of 2021, Mr. Rabbit decided his young daughter should live with him at the Montana First Nation in Ponoka County, an hour’s drive south of Edmonton. The child’s mother felt the reserve was unsafe and the move did not happen. On July 14, 2021, while high on methamphetamine, Mr. Rabbit knocked a stranger to the ground in front of a daycare centre in Edmonton and attacked her for four minutes, punching her in the face and choking her into unconsciousness, until police intervened.
During the attack, Mr. Rabbit shouted, “Did you kill my daughter?” Two of the victim’s children cried hysterically as they watched the attack through a daycare window. The woman recovered without permanent brain damage.
Mr. Rabbit, who was about 30 at the time of the attack, pleaded guilty to attempted choking and aggravated assault, and expressed remorse. The defence asked Provincial Court Justice C.J. Sharpe for a three-year sentence, and the prosecution sought six years. Justice Sharpe went much further, saying “Gladue factors” – that is, difficulties related to the offender’s Indigenous background – “cannot justify a sentence that ignores the seriousness of the offences and the harm done to the victim.”
But the Alberta Court of Appeal said Justice Sharpe’s approach ignored the central tenet of Canadian sentencing: a punishment must be proportionate to the offence and the offender.
The Alberta Ministry of Justice and the Solicitor General said it is reviewing the decision to determine what steps to take, if any.
Michael Marchen, a lawyer who represented Mr. Rabbit, summed up the message as one in which consideration of an offender’s Indigenous circumstances is “a necessary part of making a sentence proportional.”
Jonathan Rudin, program director at Aboriginal Legal Services, which was not involved in the case, said some judges are under the misimpression that offenders receive a “discount” on their sentence because of their Indigeneity.
The court stressed, he said, that a fair sentence “Is one that takes into account all the circumstances of a person’s life, and that includes their circumstances as an Indigenous person.”