Eyes Wide Shut: The Alberta Court of Appeal’s Decision in R. v. Arcand and Aboriginal Offenders

Abstract

R. v. Arcand was no ordinary sentence appeal.  It was a reconsideration of four previous Alberta Court of Appeal sexual assault decisions.  It was an opportunity to discuss the significance of starting point sentences - essentially appellate court mandated starting points to be followed by lower court judges when issuing sentences for specific sub-categories of offences.  The decision also purports to provide a clear-eyed assessment of the problems with sentencing in Canada since the passage of Bill C-41 in 1996 and a way out of the morass of unprincipled sentencing decisions by lower judges that have eroded Canadians’ faith in the justice system itself.  However, there is something missing in the decision.  The force of the reasoning advanced in Arcand is strongly diminished by the Court of Appeal’s failure to advert to the Supreme Court of Canada's decision in R. v. Gladue and to the realities of Aboriginal overrepresentation in Canadian and, more specifically, Alberta correctional facilities.  Recognition of Gladue should lead to a reconsideration of the conclusions in Arcand on the issues of proportionality, Aboriginal concepts of sentencing, circumstances of the Aboriginal offender, general deterrence, and the way sentences reflect harm to victims.