Globe and Mail

Aboriginals deserve equal, not special, treatment

Overplaying the race card in sentencing is in no one's interest

Thursday, April 29, 1999
The Globe and Mail

Like all clichés, "let the punishment fit the crime" puts a superficial gloss on a complex idea. Judges don't merely flip through a criminal checklist to hit on the relevant punishment because, as a society, we determined long ago that the goal of sentencing was achieving a balance among denouncing the crime, considering the circumstances and deterring the offender from breaking the law in the future. So, finding the right "fit" between punishment and crime means trading off society's need for retribution against all the facts and its desire to rehabilitate criminals.

If it is true that justice must be tempered with mercy, it is also clear that justice is not static. Laws are interpreted by men and women in a specific time and place; evolving social mores come into play. Notions change about what constitutes mitigating factors and how best to rehabilitate felons.

Kingston Penitentiary, for example, was opened in 1835 as a humanitarian alternative to hanging, flogging or being tossed in the local lockup. Reformers thought isolating prisoners from their community and subjecting them to hard work and lonely contemplation would turn them into better, if not model, citizens. More than a century later, with an incarceration rate that is drawing the disapproving notice of international human-rights organizations, we see the limitations of that thinking.

Canadians should be distressed about the pace with which we are sending people to jail. This is especially true for aboriginals. In 1997, they accounted for about 3 per cent of the national population and 12 per cent of federal inmates. The disparities are worse in the provincial system, especially in the Prairies, where aboriginals represented 55 per cent of prison admissions in Manitoba in 1995-96 and 72 per cent in Saskatchewan.

Locking people up is expensive and, given our recidivism rates, it isn't guaranteed to work. So what's the alternative? Parliament, in its wisdom, has embraced restorative justice, a philosophy that says that, instead of imprisoning convicts, the courts, as often as possible, should direct guilty parties to take responsibility for their actions by offering restitution to their victims and reintegrating themselves as lawful members of their communities.

Since there are disproportionate numbers of aboriginals in prison -- not by reference to the number of crimes they commit, but in relation to the general population -- even more energetic attempts should be made to direct them away from prison and into community programs, or so the thinking goes. That is the reasoning behind the sweeping amendments to sentencing provisions in the Criminal Code, especially Section 718.2(e), which says that, "All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders."

These amendments came into force in 1996, one year after Jamie Tanis Gladue, a 19-year-old native woman, fatally stabbed her husband in a drunken, jealous rage. At trial, she pleaded guilty to manslaughter and was sentenced to three years imprisonment. After serving six months, she was released on controlled day parole. She appealed to the Supreme Court of Canada on the grounds that the trial judge had not given enough consideration to her aboriginal circumstances.

In handing down its decision on the Gladue case last Friday, the Supreme Court made an impassioned argument in favour of restorative justice, ruled that the trial judge was in error by not taking the accused's aboriginal background into account, then dismissed the appeal on the grounds that the sentence was "in the interests of both the appellant and society." In other words, the sentence, lenient as it was, fit the crime and the accused. But the question remains: If this defendant received three years for manslaughter, what will be deemed an appropriate sentence in future, where a judge does take nativeness into special account? Is the Criminal Code sanctioning a race-based justice system in which aboriginals are granted a stay-out-of-jail card?

Directing convicts away from prison and into community-based programs sounds noble and innovative, but will it work? Specific community-based justice programs to help aboriginals reintegrate into society are not only poorly funded, most of them haven't gone beyond the pilot-project stage. The Supreme Court dismissed this issue by arguing that the absence of such programs does not prevent a trial judge from applying the principles of restorative justice in sentencing.

We have been down this slope before. In many provinces in the 1960s and 1970s, governments decided to deinstitutionalize the mentally ill because it was inhumane to keep them locked up, but they failed to put in effective alternative support systems. The result is that many emotionally disturbed and impoverished people are wandering the streets by day and bedding down in temporary shelters by night. Natives living off-reserve are already overrepresented among the chronically unemployed, the homeless and the addicted. How will this change for the better if convicted aboriginals are directed away from prisons and into unprepared communities?

On a philosophical level, treating one group differently in the guise of treating them equally is risky. We have faced this in court-ordered affirmative action remedies, in rulings that being battered provides a legitimate basis for pleading self-defence to murder, and that unwanted sexual touching, as determined by the complainant, is grounds for laying sexual assault charges. All of these precedents were based on compelling circumstances, all were taken to remedy the "unique" situation of a disadvantaged group, and all have subsequently been stretched in their interpretation by enterprising lawyers and empathetic, or perhaps partisan, judges. Will the same distortion happen with regard to aboriginals and their over-representation in the prison system?

If we truly want the punishment to fit the crime, we must adhere to the principle that everybody is equal before the law -- as individuals, not as members of "unique" groups. Judges should take account of all relevant and mitigating circumstances in handing down sentences and, in some cases, that may well include aboriginal status, but nativeness by and of itself should not be so decisive a factor that we lose a coherent standard of justice.

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