Globe and Mail

Racial background key part of argument at sentencing hearing

Monday, January 11, 1999
Special to The Globe and Mail

Vancouver -- After a night of heavy drinking late in January, 1997, Deanna Emard killed her husband.

They had just returned home from a party when Wilfred Shorsen, 39, began fighting with her. The 27-year-old Métis woman gave in to her rage and dealt one fatal knife wound to his upper left chest.

Throughout her trial there was no argument of self-defence, and the jury found her guilty of manslaughter last Dec. 16.

However, on an issue that raises questions about fairness and equality before the law, Ms. Emard's lawyer will argue at a sentencing hearing today that she should receive a lighter sentence because of her "Indianness."

Using a recent amendment to the Criminal Code of Canada that asks judges to pay "particular attention to the circumstances of aboriginal offenders," defence counsel Peter Wilson will argue that Ms. Emard's poverty and her family history of ill health and tragedy are factors that justify a sentence other than imprisonment.

Ms. Emard's case is one of about 75 across Canada to use the amendment since it became law in September of 1996. In a decision expected later this year, the Supreme Court of Canada is to determine whether the amendment should be interpreted broadly enough to allow for aboriginal offenders to be treated differently.

Nevertheless, some people already have expressed concern about the effects of the amendment on the constitutional principles of fairness and equality before the law.

"You can't right historic wrongs by creating new injustices," said Mike Scott, native affairs critic for the Reform Party. "When you move away from the principle that we're all entitled to the same treatment in the eyes of the law, you're going down a slippery slope."

Most Canadians would be very nervous about this amendment and would not support it, he said.

In Ms. Emard's case, Crown prosecutor Robert Ruttan will argue that consideration of the amendment must take a back seat to the need to deter others from similar crimes.

"There may well be alternatives to jail," he said. "But there is nothing about her particular circumstances as an aboriginal that indicates she should not be treated the same as any other person who used a knife to settle a family dispute."

However, others see the amendment as providing a chance to come to terms with what they believe are the real circumstances of aboriginal people in Canada.

Jack Woodward, an aboriginal-law professor at the University of Victoria, said the legislation is clearly not intended to be an "aboriginal discount."

It is Parliament's recognition that in aboriginal communities, part of the role of the prison system is taken over by the community, he said.

"This is a real accomplishment of the Canadian legal system," he said. "Now we have a slightly more enlightened system."

One of the reasons why Parliament passed the amendment was to act on the alarming increase in the number of natives in prison.

In a 1996 report, aboriginal people were reported to represent 11 times the non-aboriginal population in provincial jails on a per capita basis, and five times that of others in federal penitentiaries.

Those numbers tell a sad story, lawyer Hugh Braker said. "The criminal justice system really fails when it comes to aboriginal people, but that doesn't mean it has to be more lenient."

Mr. Braker said the amendment is not going to mean aboriginal offenders get off easier than non-aboriginal people. What it will mean, he said, is that a judge can make a decision to better reflect the reality facing aboriginal people.

For example, if an aboriginal convicted of a sex offence had been abused previously, a judge could order victim counselling in a probation order.

Gil McKinnon, defence counsel for Jamie Gladue, whose case was heard by the Supreme Court of Canada last month, said that kind of consideration usually happens anyway in sentencing hearings.

The amendment compels a judge to consider the factors of "Indianness" in weighing a sentence, he said.

"The courts may be less inclined in some cases to impose a jail sentence, or one that is not as lengthy as it might otherwise have been, on the condition that the offender does not impose a risk to the public."

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