The headline on the National Post on June 20 read, “Ontario case could set special rules for sentencing black offenders, similar to Gladue for Indigenous people.” The story explained how “Eleven prominent human rights, legal and ethnic organizations have been granted special status in the government’s appeal of a ‘lenient’ sentence of a black man in Toronto last year.”
Basically, the court is looking at setting up a sentencing regime for black offenders similar to the Gladue principles for Indigenous offenders, which were laid out by the Supreme Court of Canada in 1999.
Those principles call upon the sentencing judge to look at the background of an Indigenous offender, looking at things like residential schools, where they grew up, etc., and use these as mitigating factors, essentially reducing their sentence.
I’ve seen these principles be used at times when I spent 2004-2008 covering the courts in North Battleford and Battleford. For the past 20 months, I’ve been covering docket court in Estevan for the Estevan Mercury, and I have not seen them implemented once here.
Why? Gladue is meant, in large part, to address the overrepresentation of Indigenous offenders in the justice system. In North Battleford, I would estimate at least 80 per cent of the people I saw before the courts were identifiable as Indigenous. That was roughly three times, proportionally, what their share of the local population was. For whatever reason you wish to attribute, there was no question of overrepresentation. But generally, people don’t appear before the courts, and get convicted, if they didn’t do something to deserve it.
In Estevan, I have seen next to zero people before the courts that I could readily identify as Indigenous. That’s likely because there aren’t any nearby reserves, and Estevan’s percentage of Indigenous people is very low. Thus, I cannot recall hearing Gladue come up at all in docket court in Estevan.
The final report of the recent National Inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG) has several specific “calls for justice,” i.e. what other commissions have called recommendations, when it comes to sentencing in the criminal courts. Essentially, they want to reduce sentencing for Indigenous women, girls and 2SLGBTQQIA people when they are the offenders, but increase sentences for offenders when those same Indigenous women, girls and 2SLGBTQQIA people are the victims.
Several recommendations focus on the impact of mandatory minimum sentences as it relates to the sentencing and over-incarceration of Indigenous women, girls, and 2SLGBTQQIA people and to take appropriate action to address their over-incarceration, community-based Indigenous-specific options for sentencing, Gladue reports and the impacts of Gladue principles.
And then there’s this one:
“5.18 We call upon the federal government to consider violence against Indigenous women, girls, and 2SLGBTQQIA people as an aggravating factor at sentencing, and to amend the Criminal Code accordingly, with the passage and enactment of Bill S-215.”
It looks like the federal Liberal government is considering implementing these recommendations. Point 5.18 is a different principle than Gladue. Gladue considers the background of the offender, while this MMIWG recommendation considers the background of the victim.
What does all this mean? It could mean, in the coming years, that we have competing sentencing principles which could compound, conflict, or cancel each other out.
First of all, we must realize that despite all the options of conditional sentence orders, suspended sentences with probation, jail and penitentiary time, and rarely used sentencing circles (I’ve been to just one), the reality is that for serious offences, there is truly only one calculation: how much time an offender serves behind bars.
So let’s look at this: if the hypothetical base case is a white man assaults a white woman, and gets a sentence of two years, then an Indigenous man assaulting a white woman should get a sentence of less than two years, if he had Gladue factors (like parents who went to residential schools). But if an Indigenous man assaults an Indigenous woman, he should get a reduced sentence for his Gladue factors, but an increased sentence for assaulting an Indigenous woman. Do these factors cancel out, resulting in a two-year sentence?
But what happens if a black man assaults a white woman? Or an Indigenous woman? How does that change?
If these suggested sentencing changes are implemented, concerning black offenders and female Indigenous victims, surely the next issue to tackle will be gender. And this is where many of these arguments collapse.
If the judge is to consider Indigenous and black overrepresentation before the courts, surely those same arguments should apply to males before the courts. The vast, vast majority of people standing before a judge in any court in Canada is male, despite making up only half the population. Should they get special consideration, too? (When I say special consideration, that generally means a reduction in sentencing. Consider it a discount, like 20 per cent off at the store.)
In that case, a white woman assaulting an Indigenous woman should, by this principle, get a harsher sentence than a white man assaulting an Indigenous woman.
If that sounds ridiculous, it’s because it is. The justice system is slowly being altered such that individual identity and responsibility is being subverted to group identity – group identity of the offender, and group identity of the victim.
This is the worst form of identity politics, and we are slowly but surely engraining it into our most fundamental laws.
Somewhere along the line we need to return to the idea that individuals commit crimes, against individual victims. But with our current Supreme Court and government, that will never happen.
Brian Zinchuk is editor of Pipeline News. He can be reached at brian.zinchuk@sasktel.net.
