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Saturday, April 24, 1999

Use restraint in jailing natives, judges told
Supreme Court says imprisonment used too often, especially for aboriginals

Janice Tibbetts
Southam News

OTTAWA - Judges should use restraint in jailing aboriginals because there are already far too many in prison, the Supreme Court said yesterday in a ruling that upholds a new and contentious federal law.

The court, in a unanimous decision, also concluded that Canada jails too many offenders in general and judges should do their part to reduce an incarceration rate that is one of the highest in the Western world.

"If overreliance upon incarceration is a problem with the general population, it is of much greater concern in the sentencing of aboriginal Canadians," said the ruling, written by Justice Frank Iacobucci and retiring Justice Peter Cory.

The court, finding that aboriginals have been treated both harshly and unfairly by the justice system, effectively issued a directive for judges to heed a 1996 provision of the Criminal Code urging them to find alternatives to jail for all offenders when it is reasonable to do so, paying "particular attention to the circumstances of aboriginals."

The law was passed after years of study on why aboriginals make up almost 15% of federal prisoners but only three per cent of the Canadian population.

"The unbalanced ratio of imprisonment for aboriginal offenders flows from a number of sources, including poverty, substance abuse, lack of education, and the lack of employment opportunities for aboriginal people.

"It also arises from a bias against aboriginal people and from an unfortunate institutional approach that is more inclined to refuse bail and to impose more and longer prison terms for aboriginal offenders," said the court.

Judges should consider community-based punishment, which could include traditional aboriginal methods such as sentencing circles and victim restitution, the ruling said.

The court warned, however, that the special allowance doesn't mean aboriginals will automatically receive a lighter prison term than non-aboriginals convicted of the same crime. As well, in cases involving serious crimes, sentences would likely be similar regardless of race.

The decision was a victory in principle for Jamie Gladue, a poor, uneducated, young Cree woman with a drinking problem from Nanaimo, B.C., who was sentenced to three years for manslaughter after she knifed her cheating husband to death in September 1995 after catching him with her sister.

Gladue, now 22, considered herself a classic candidate to qualify for a lesser sentence because she's aboriginal. She took her case to the Supreme Court after twice losing in the lower courts in a bid for a suspended or conditional sentence that would have allowed her to serve time at home.

The Supreme Court refused to reduce her sentence because it found, even with her background taken into account, it was a fitting jail term because she was an aggressor in a very serious offence.

But her lawyer, Gil MacKinnon, said it's still a victory in the bigger picture because the court confirmed aboriginals should be given special consideration because of their disadvantaged circumstances.

"The court has said quite clearly that we have to find another way to deal with aboriginals," he said, predicting the ruling will lead to more conditional sentences.

Others, however, argue that Parliament imposed, and the court upheld, a two-tier justice regime based on race that is bound to pit aboriginals against non-aboriginals.

"I think the way to characterize it is (that) it's segregationist," said Mike Scott, aboriginal affairs critic for the Reform party, which was enraged earlier this year at another B.C. case in which the province's Supreme Court handed a conditional sentence to Deanna Emard, a Metis who stabbed her common-law husband to death.

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