Updated: Sep 17, 2019
Last month, Justice Paul Burstein released his decision which he presided over a few months earlier, R v Luke, 2019 ONCJ 514 (“Luke”). Luke is a criminal case that involves the story of a young Indigenous woman, aged 22 years, Morgan Luke. On July 25, 2019, the National Post reported on Morgan’s story.
Generally, the Post reported that Justice Burstein struck down mandatory minimum sentencing for first-time impaired driving in Morgan’s case, largely focusing on Morgan’s Indigenous background.
While we can all agree the drunk driving is bad, where my reading of Morgan’s story and the perspective of others may differ is how Justice Burstein treated her case. I agree with Justice Burstein’s reasons and I hope to highlight some important considerations for others.
As noted in the Post while quoting Morgan’s lawyer, Sara Samet, sentencing is a very individualized process. That is, sentencing must fit the individual and the offence, including the context in which both exist. Sentencing does not exist in a silo, separated from societal and historical contexts.
With every sentencing, there are different considerations. Such considerations include assessing mitigating and aggravating factors; ensuring that the sentence contributes to the respect for the law and to a just, peaceful and safe society; and imposing sentences that fit the following objective(s):
denounce the unlawful conduct and harm to the victim;
deter (discourage) the offender and others from committing such crimes;
separate offenders from society when necessary;
assist in rehabilitating the offender;
provide reparations for harm done to the victim and the community; or
promote a sense of responsibility in offenders and acknowledgment of the harm done (source).
For all Indigenous persons, the sentencing judge must consider the circumstances of the Indigenous person (source), and in this instance, Morgan’s circumstances.
What is not talked about in the media and by others is Morgan’s circumstances, including surrounding the offence and the responsibility she has taken to date.
Morgan was charged after being arrested for impaired driving. She pled guilty and she did not try to minimize her reasons for drinking and driving. From my perspective and reading of her case, she acknowledged that the drinking was an issue (para 14). Since the offence, there is no dispute that she has taken steps to help with her drinking. Luckily, Morgan did not injure anyone else in her drinking and driving. In her childhood, she was also abused and exploited, experiencing other traumatic instances.
In his sentencing, Justice Burstein gave Morgan a conditional discharge with two years’ probation. This means that, pending Morgan’s behaviour for two years and compliance with the probation order (which includes going to school, completing volunteer hours, finding employment or living at a certain address, among other things), she will not have a conviction that shows on her criminal record for the remainder of her life. Remember, she is only 22 years old and this was her first offence. Had Justice Burstein applied the mandatory minimum, Morgan would have a criminal record for the rest of her life, pending the marginal chance she would or could access a record suspension (colloquial speaking, a pardon). A conditional discharge is removed from a person’s criminal record after a certain number of years and not immediately (source).
Following the charge, Morgan was/is working on refraining from drinking and would like to become a youth worker, helping her community which, as Justice Burstein noted, would be hard to do with a criminal record in the long run.
Our justice system is not a system that automatically locks people away because we, as individuals, think they are bad; it is a process in which the judge, and other players in the system, must consider the context of the person and the offence.
For context, I highlight the case of Marco Muzzo, who was sentenced to 10 years in prison on four counts of impaired driving causing deaths of four individuals and impaired driving causing bodily harm to two others. This individual had several other driving infractions similarly related to the offences causing deaths and injuries of the family/individuals in the other vehicle. He also came from a good family, went to college, worked for his family business, did not have a history of any medical or mental health issues. You can read more here on this case. Further, though a different proceeding all together, during a hearing to obtain parole, Mr. Muzzo continues ignore his drinking by failing to disclose withdrawn charges that involved alcohol to the parole board (source). While different circumstances, this is an example of a contrasting decision in which sentencing is also an individualized process and though a different proceeding, this is also an example where someone does not take responsibility for their drinking.
Again, in sentencing, the judge must consider the individual’s context in light of the offence.
In the end, I struggle with the discussion of this case after seeing comments from both legal and non-legal professionals. I struggle because the focus of the reporting highlighted Morgan’s Indigenous identity, which is important to her sentencing decision, but that the focus should not end there. One of the key reasons that Justice Burstein made this decision to strike down mandatory minimums was because Ontario, and other jurisdictions, decided to not allow offenders the option of “curative treatment discharge” (para 62). This meant that, in general, other jurisdictions in which a first-time young offender, Indigenous or not, had the option to receive a discharge. For Morgan, this was not an option available to her.
Without focusing on the fact that Morgan is a young Indigenous woman, we can all agree that sentencing someone to a lifetime effect of a criminal record, with only a marginal chance of obtaining a record suspension, neither contributes to a just, peaceful and safe society, nor falls under any of the appropriate objectives of sentencing as outlined above.
Justice Burstein made the right decision and I commend Morgan for making the right decisions to remedy her wrongs on her own accord--it is not easy thing to do, especially as a young Indigenous woman.