National Post

Page URL:

Friday, May 28, 1999

Natives face two-tiered justice sytem, court told

Tim Naumetz
Southam News

OTTAWA - Canada has effectively established a two-tier justice system with different punitive standards for natives, the Supreme Court of Canada was told.

Kent Roach, head of the University of Saskatchewan College of Law, made the statement as he argued for wider use of conditional sentencing for natives convicted even of violent crimes.

Mr. Roach, appearing for the Aboriginal Legal Services of Toronto, told the Supreme Court that native Canadians should automatically receive home or community sentences instead of jail when their crimes qualify for the lighter treatment under federal law.

That kind of "restorative" justice would be more beneficial to natives than the "retributive" justice under which the rest of society is generally governed, Mr. Roach said.

Aboriginals are over-represented in Canada's prisons in proportion to their population, he said, and deserve special attention because of their depressed social and economic conditions.

Asked by Justice Claire L'Heureux-Dube whether he could envisage circumstances in which a native Canadian should be refused a conditional sentence if the offence qualifies for it, Mr. Roach said only when the convicted person would be a danger to the community.

When Justice L'Heureux-Dube asked Mr. Roach whether that policy would lead to a two-tier system of justice, he replied: "I would say we're there."

He was referring to a separate controversial section of the Criminal Code, apart from conditional sentencing, which allows judges to set different penalties for aboriginal offenders because they are aboriginal.

Parliament intended that law to take into account the oppressive conditions in which many aboriginals live, and the debilitating effect of their history on their personal lives. The law also recognizes that incarceration has failed to halt the cycle of crime and poverty for aboriginals.

Mr. Roach was intervening in an appeal by a native man from Alberta, James Warren Wells, who was convicted of sexual assault after he had intercourse with an 18-year-old female who was either unconscious or asleep. The incident occurred during a house party after heavy drinking.

Wells was sentenced to 20 months prison and was refused a conditional sentence by the Alberta Court of Appeal, even though he had acknowledged his alcohol dependency and, supported by his community, had promised to take counselling and traditional native healing sessions.

Of six cases on conditional sentencing the Supreme Court heard this week, with the aim of laying down guides for trial judges on the new law, Wells was the only offender refused a conditional sentence. The courts in Alberta have taken a conservative approach to conditional sentencing, to the point of criticizing judges in other parts of the country for being too lax with the provision.

Like the other prosecutors who appeared at the hearings, Goran Tomljanovic, an Alberta Crown prosecutor, argued against conditional sentencing for offenders such as Wells. Mr. Tomljanovic argued the justice system must demonstrate such crimes are unacceptable.

Chuck Cadman, a Reform MP, commenting on the week of Supreme Court hearings, also argued against special consideration for natives.

"The Criminal Code has to apply across the board to everybody, equally," said Mr. Cadman.

Judges may give conditional sentences if the offence has no minimum sentence, if a jail term for the crime and its circumstances would otherwise be less than two years, or if the perpetrator of the crime is not considered a danger to the community.

The Supreme Court reserved judgment in all six cases.

(Each link opens a new window)

  • Final Report of the Commission on Aboriginal Peoples

  • Gathering Strength: Canada's Aboriginal Action Plan
    The Department of Indian and Northern Affairs' response to the Royal Commission's report.
  • Assembly of First Nations

  • First Nations Information Project
    A great list of native links.

  • Copyright Southam Inc.