Thursday, January 21, 1999

'Get out of Jail Free' card for natives?

MICHELE MANDEL
Toronto Sun

In Canada, there is not justice for all. For if you're native, you have a better chance of getting away with murder.

Earlier this week in B.C. Supreme Court, a Metis woman who killed her husband with a butcher knife during a drunken brawl was spared a jail term. Instead, the aboriginal woman convicted of manslaughter was sentenced to two years less a day -- of community service.

And why such a shockingly lenient sentence? The judge cited the killer's aboriginal heritage, relying on a new section of the Criminal Code which advises courts to go easier on native defendants when considering jail terms.

Formally, it's known as section 718.2(e) of the Criminal Code. To its critics, it's more aptly known as the "Get Out of Jail Free" card for aboriginals.

Sentencing guidelines introduced in recent years allow judges to take into account whether an offender -- not limited to aboriginal offenders -- suffered from such things as substance abuse, racism or poverty: "All available sanctions other than imprisonment, that are reasonable in the circumstance, should be considered for all offenders, with particular attention to aboriginal offenders.

In the B.C. case, Deanna Emard's lawyer asked the judge to consider that section on the grounds that she suffered from the systemic problems that plague Canada's natives.

And so the court heard about her impoverished background, the alcoholism and drug abuse that have affected her family, the sister who died of a drug overdose, the uncle who died after a drinking binge, the drinking both she and her common-law husband had been doing prior to the stabbing.

Yet surely there are many poor people, many from troubled backgrounds, who never commit a crime. How can that be allowed to discount the role of individual responsibility?

"It's not a question of mitigation," insists Jonathan Rudin, program director at the Aboriginal Legal Services of Ontario which has championed the section in a recent case before the Supreme Court of Canada. "It's not a case where a judge should say if you were a non-aboriginal person I'd give you a year in jail but because you are, I'm not sending you to jail. That's not the issue. The issue is what sentence makes the most sense for this individual taking into account the purpose of sentencing is both deterring people and also rehabilitating people. Let's look at that and then let's look at you."

He says aboriginals have a high rate of recidivism and incarceration simply doesn't work as a deterrent. "So let's look at what other sentencing options might there be ... It's not about saying, 'You're an aboriginal person therefore that gives you a Get out of Jail Free' card."

Still, as reasonable as that may seem when applied to non-violent crimes, its application in more serious cases is what especially ruffles our sense of fairness and equity. As the victim's family in the Emard case, themselves native, said after the shocking sentence: "Alcohol is not an excuse and neither is being native. There should be justice for everyone. Not one system for Indian and Metis people and one for white people."

Several year ago, criminal lawyer David Gorrell watched in horror as his client was held in custody while the man's co-accused, an aboriginal accused of the same crime with the same criminal history, was freed under Ontario's "aboriginal diversion program."

Justice, Gorrell complains, has become so politicized that offenders now are treated differently according to their "grouping" -- so we have a different standard of justice for abused women, a different standard for aboriginals.

"Over the last 20 years, the doctrine of individual responsibility has taken something of a shellacking, and now in many cases it's less important what you did as what (disadvantaged) grouping you belong to. And I for one think that's a retrograde step. It flies in the face of 1,000 years of criminal jurisprudence."

Closer to home, it makes you wonder whether this new section will be used in the cases of two aboriginals currently accused of high-profile crimes.

Francis Carl Roy, a native Canadian from Manitoulin Island, goes to trial next month for the first-degree murder of Alison Parrott. Barbara Cece, an aboriginal from northern Manitoba, is one of two women facing second-degree murder charges in the death of Toronto Const. Bill Hancox.

If convicted, will their aboriginal background be used to reduce their sentences?

Will their ethnicity win them earlier "Get out of Jail Free" cards, too?

And are we truly prepared to have a justice system that is no longer colour-blind?

Copyright© 1999, Canoe Limited Partnership.