Two kinds of justice is no justice at all

By NEIL SEEMAN
Thursday, December 6, 2001 – Print Edition, Page A25
The Globe and Mail

Here's a tale of two crimes. On Sept. 16, 1995, Jamie Tanis Gladue, an aboriginal woman, fatally stabbed her husband as he slept. On Jan. 28, 2000, Dan Hatchen and Ken Munson, two Saskatoon police officers, handcuffed an intoxicated aboriginal man and drove him to a field outside the city. The two were fired and convicted of unlawful confinement.

Ms. Gladue was sentenced to three years for manslaughter -- only six months of which were served behind bars. The Supreme Court of Canada justified the light sentence by denouncing judges across Canada for their "overreliance on incarceration" for aboriginal offenders.

A new Toronto court has just been created in honour of Ms. Gladue. The "Gladue Court" will deal exclusively with hearings of native offenders; the court workers will all be aboriginal. Offenders may be referred to alternatives to incarceration. These might include "sentencing circles," "shaming" rituals, and "sweetgrass ceremonies" -- where native criminals can confess their crimes to their friends instead of a judge. A committee of judges, academics, and activists designed the new court to determine sentences in a manner faithful to the Gladue case.

Meanwhile, Mr. Hatchen and Mr. Munson could face up to 10 years in prison. This week, a Saskatoon judge denied the two men the opportunity to be sentenced by a Gladue-style sentencing circle.

How do Canadian courts justify the double standard? In the Gladue decision, the Supreme Court admonished the trial judge for failing to give due respect to Ms. Gladue's "Indianness." It pointed out that a male treaty Indian is 25 times as likely to be incarcerated in a provincial jail as a non-native -- and that aboriginals, while only 3 per cent of Canada's population, make up almost 15 per cent of federal prisoners. Put it down to "systemic" racism. Native incarceration rates were "so stark and appalling that the magnitude of the problem can be neither understood nor interpreted away."

That is a curious statement for the Supreme Court, whose job it is to understand and interpret. Using the Court's logic, all men suffer from systemic sexism (since they represent 98 per cent of the criminal population but only 49 per cent of the general population). Should there be a separate court for men? Drug-users and alcoholics are "overrepresented" in prisons, too. Almost everyone in jail today -- black, white, or aboriginal -- is poor and poorly educated. Why not special courts for them?

All these groups are "overrepresented" in the prison population because they commit more crimes than other discrete groups. In 1991, the Aboriginal Justice Inquiry (ACI) of Manitoba reported that reserves were experiencing as much as six times the rate of offences against the person (rape, common assault, and murder) as were non-reserve areas. A 1995 study by the Canadian Centre for Justice Statistics found natives were nearly five times as likely as non-natives to commit a crime in Calgary; 10.5 times as likely to do so in Saskatoon; and 12 times as likely in Regina.

One might argue that alternative measures to prison could alleviate this situation. But several measures already treat aboriginal offenders differently: Provincial criminal courts routinely offer diversion -- or free passes -- to natives who commit petty crimes. More serious crimes (such as wife-beating) may be dealt with through "shaming."

Lowering the price of crime for aboriginals may increase the odds they will commit more crimes. Meanwhile, imposing different punishments and procedures for different ethnic groups lowers everyone's respect for the administration of justice. We all pay that price.
Neil Seeman is a lawyer at the National Citizen's Coalition.

Copyright © 2001 Globe Interactive, a division of Bell Globemedia Publishing Inc.