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Problems with indeterminate sentencing

Thursday, March 04, 2021 @ 12:54 PM | By Nathan Baker

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Nathan Baker
Judges face tough choices in their careers. Determining the guilt or innocence of a party is one of the hardest things to consider. The power of the state being wielded against an accused party is significant. The stakes are always high. This is one of the reasons that the onus on the state is so significant. Proof of guilt on beyond any reasonable doubt protects innocent parties from being punished.

The second president of the United States, John Adams, summed it up well when he said that protecting the innocent was even more important than the punishment of the guilty because a person should never be in a position where they are thinking “whether I do good or whether I do evil is immaterial, for innocence itself is no protection.”

Juries face this same dilemma where they are empanelled to do the work of determining guilt. For a judge though, whether determining fact or relying on a jury’s finding of guilt, the next difficult task is to craft an appropriate sentence.

A judge must never shy away from the issue of sentencing. If the state has met its high onus, then the judge must pass a fit and fair sentence. While restraint and rehabilitation should always be on the mind of the sentencing judge, proportionality relating to the offence, the offender and the harm done to the community must not be lost.

In the case of R. v. Blackplume [2021] A.J. No. 11, the Alberta Court of Appeal dealt with a case involving the application of an indeterminate sentence. Typically, indeterminate sentences are reserved for the most heinous of crimes like murder. However, in certain circumstances where the Crown can prove a pattern of conduct of great significance, then an indeterminate sentence may nonetheless be appropriate, even though the facts of the singular offence currently before the court would not otherwise warrant such grim sanction. An indeterminate sentence is not necessarily a life sentence, as an offender who rehabilitates can seek review and eventual release.

At sentencing, the court accepted that the Crown has met the criteria to show that Lucy Blackplume was a dangerous offender and that an indeterminate sentence was warranted. However, the court determined that an indeterminate sentence would amount to a life sentence in this matter due to the lack of supports in the federal penitentiary system to support the unique circumstances of Blackplume. The court found this to amount to cruel and unusual punishment and declined to impose an indeterminate sentence.

The Court of Appeal found that this was an error. It reminded itself that while indeterminate sentences are severe, they exist to deal with “those who cannot be controlled in the community in a manner that adequately protects the public from murder or a serious personal injury offence.”

The Court of Appeal found that a “constitutional exception” for a particular case is not a remedy which is appropriate in dealing with either mandatory minimum sentences, or like matters such as dangerous offender designations. Every offender is unique. While the original sentencing court found that by reason of “indigeneity, severe cognitive limitations, substance addiction, antisocial personality disorder, and untreatable psychopathy” Blackplume was especially unique, the Court of Appeal disagreed and found that none of the factors supported a failure to impose the required indeterminate sentence in this case.

Where the Crown makes out the basis for a particular sentence, a court should generally impose it. In this case, the requirements for an indeterminate sentence were met. No lesser measure could adequately protect the public. While a court should have every lesser appropriate sentence in mind when determining a fit and just punishment, it must not shirk its responsibilities either. It is natural to feel for the person on whom sentence is to be passed. Judges are human and will inevitably be swayed by the person who is in front of them.

A judge’s duty is difficult but all the more important in these tough cases. Certainly, in this case, the lack of programming for particular classes of people was highlighted and should be further considered. The special issues facing Indigenous peoples, transgendered people, people with mental health issues and people with trauma in their past are all challenging, but essential considerations in sentencing.

The presence of all of these factors in Blackplume’s context are exponentially more difficult to approach. The solution here is not to avoid the appropriate sentence but to begin discussing better ways to treat people in custody to ensure better outcomes so that indeterminate sentences do not become life sentences when they need not be.

Nathan Baker is a criminal defence lawyer in Peterborough, Ont., and is a sole practitioner at Nathan Baker Law. He takes special interest in impaired driving cases, especially those involving drug impaired driving and impaired boating. E-mail him at
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