Last month, the B.C. Court of Appeal significantly reduced the sentence for a man who stalked, threatened and abused his ex-partner. David Murtagh pleaded guilty to 17 offences, which included slashing his partner’s car when it was parked at a women’s shelter and following her to that shelter, where he threatened her if she did not stay with him. The following month, police were called to the complainant’s home, where she told police Mr. Murtagh had choked her to the point she could not breathe. She was visibly bruised.
Mr. Murtagh had 118 prior convictions for a variety of offences, including property and violent crimes, driving offences, breaching court orders and one drug offence. The Crown and defence made a joint submission for three years imprisonment, which the trial judge, rather unusually, rejected. Judge Lorianna Bennett considered mitigating factors, including Mr. Murtagh’s Indigenous background and his early guilty pleas, but she was skeptical of his prospects for rehabilitation considering his lengthy criminal past. She also wrote that allowing him to serve his sentences concurrently, as proposed by the joint submission, would be disproportionate to the gravity of his crimes and would not adequately denounce or deter his actions.
Judge Bennett cited the Supreme Court case of R v. Anthony-Cook, which held that trial judges should not depart from joint submissions unless the sentence is so “unhinged from the circumstances of the offence” that it would lead reasonable people to believe the justice system is broken, in explaining her decision to reject the joint submission. She sentenced Mr. Murtagh to five years instead, but that sentence didn’t hold: the appeal judge threw out her sentence and accepted the initial joint submission. So in the end, a man with an extraordinarily long criminal record, who stalked and abused his partner in front of her daughter, will be free in less than two years.
There is hardly more than a single line in that decision, however, that acknowledges the particular vulnerability of Mr. Murtagh’s victim. In the 1999 case of R v. Gladue, the Supreme Court ruled that judges must consider an Indigenous offender’s background (and the associated impacts of intergenerational trauma, systemic discrimination, the residential school system and so on) in sentencing, which is codified in Section 718.2(e) of the Criminal Code. But it would take 30 years, plus a recommendation from the public inquiry into missing and murdered Indigenous women, for the law to officially take into account the particular vulnerability of Indigenous victims.
In 2019, sentencing provisions in the Criminal Code were amended (Sections 718.04 and 718.201) to require courts to consider the vulnerability of Indigenous women who are abused by their partners. That change finally addressed a long-standing and paradoxical inequity in Canadian law: that the perpetrators of violence against Indigenous women were being afforded a leniency that, generally speaking, those convicted of violence against non-Indigenous women were not. A Statistics Canada report of homicides between 2009 and 2021 found that 86 per cent of those accused of killing an Indigenous woman were themselves Indigenous, and that manslaughter charges were nearly twice as likely to be laid when the victim was Indigenous, compared to when she was not.
But there are impediments to seeing these new Criminal Code provisions meaningfully considered in sentencing. One is what happened in the case of Mr. Murtagh: the standard that trial judges shall accept joint submissions unless they are extraordinarily “unhinged” and throw the entire justice system into disrepute. That essentially eliminates the discretion of trial judges to, among other things, give “primary consideration to the objectives of denunciation and deterrence” in sentencing when an offence is committed against a vulnerable person. Another impediment is one of seemingly competing priorities that, in practice, seem to cancel each other out: the mitigating factor of an offender’s Indigenous background, and the aggregating factor of an Indigenous victim’s background.
Reasonable people may disagree, based on a cursory review of relevant recent cases, about whether the Crown attorneys and trial judges have adequately considered these new provisions in their submissions and sentences in the five years since their adoption. In a judgment rendered by a B.C. Supreme Court justice in May, an Indigenous man who killed his Indigenous partner and who remains at a “high risk” of intimate partner violence was sentenced to just five years after pleading guilty to manslaughter. In June, the Nova Scotia appeals court ruled that the lower court judge failed to “apply Gladue principles in a meaningful way” in the case of an Indigenous man who brutally abused his Indigenous partner and shortened the sentence. An Indigenous man whose partner had to have her teeth extracted and jaw wired shut after an attack was spared jail time by a provincial court in B.C. in 2022. It could be credibly argued that the men in these cases are owed special consideration based on Canada’s history of systemic injustice. But it sure seems as though Indigenous women are the ones paying the ultimate price for this particular effort to right historical wrongs.