Senate committee told proposed amendment to Criminal Code will face court challenge

By Kenneth Jackson
APTN National News
OTTAWA – On the eve of when a Senate committee is to be begin debating the Victims’ Bill of Rights it was told a proposed amendment of the Criminal Code that applies to Gladue principles will face a court challenge if not reversed.

Liberal Sen. Serge Joyal said he doesn’t see any way around a court challenge to the proposed amendment of section 718.2 [e] of the Criminal Code that is strengthened by multiple Supreme Court of Canada decisions.

“This amendment, of course, would dilute that conclusion of the Supreme Court,” said Joyal at the Senate’s legal and constitutional affairs committee Wednesday. “In my opinion since the conclusion of the Supreme Court is rooted in the constitutional rights of the Aboriginal people it seems to me (this amendment) will be open to challenge under constitutional ground.”

He asked representatives from the Canadian Bar Association if they agreed.

“We feel that is a very valid comment,” said Kathryn Pentz, chair of the Nova Scotia branch of the CBA’s national criminal justice section.

The Criminal Code section currently says that judges should use “all available sanctions, other than imprisonment, that are reasonable in the circumstances and should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.”

What is concerning to many is the wording in the proposed amendment “consistent with the harm done to victims or to the community” that will be added to section 718.2 [e] to the dismay of criminal lawyers across the country who have spoken out against amending the section.


Pentz said the CBA’s concern is the amendment will distort the sentencing principles of the section that are meant to direct a judge to consider an Aboriginal person’s unique past that may have led them to the court, including the effects of colonization, such as residential schools.

The CBA is supporting the bill and provided recommendations to the Senate, including removing the changes to section 718.2 [e].

Nana Yanful, of the Canadian Council of Criminal Defence Lawyers, told the committee the changes to the section dismiss its purpose, which is for the courts to exercise restraint in sentencing when dealing with an Aboriginal person.

“It makes it redundant and places a greater emphasis on incarceration,” said Yanful. 

After the meeting, Yanful told APTN it’s the placement of the proposed amendment that concerns her the most.

“If it says protecting society first before talking about taking into account an offender’s Aboriginality … I think it furthers a negative stereotype of Aboriginal people,” she said. “If it continues there will definitely be a court challenge.”

The committee will begin a clause-by-clause review of the bill Thursday. The bill includes dozens of Criminal Code amendments that will be in force 90 days if the bill receives royal assent.

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