Offended by Offence

This year marks the ten year anniversary of the creation of a “Gladue Court” – the consequence of the Supreme Court of Canada ruling  that identified “aboriginal over-incaceration as a full-fledged crisis that must be attacked at all levels…”   (www.theglobeandmail.com/news/national/courts-falling-short-on-effort-to-keep-natives-out-of-jail/article1412973/).  As a result of this ruling, judges were urged to be sensitive to the circumstances of aboriginal people when sentencing – in  other words, to be more lenient in sentencing so as to reduce the number of Natives being incarcerated.  As Mr. Justice Melvyn Green puts it: “We had to get the numbers down because they were ridiculous”.  

Green also notes, however, that the creation of Gladue courts have not changed this “ridiculous” circumstance.  While aboriginal people make  up only four per cent of the population, they accounted for 24 per cent of those in custody in 2006-7.  The reason given for this by Jonathan Rudin of Toronto’s Aboriginal Legal Services is that ”racism is real, and one of the places it exists is in jail…Aboriginal people have less access to parole and rehabilitation programs”.   It is noted that this problem has not been addressed because prosecutors resist alternatives to sentencing that do not involve jail and defence attorneys do not stress how systemic discrimination has impacted the lives of their clients.  Professor Jane McMillan, an aboriginal legal professor at St. Francis Xavier University, maintains that judges have yet to understand how aboriginal incarceration has been influenced by aboriginal marginalization and the denigration of native culture that has occurred over hundreds of years. 

There are two problems with these assertions, however.  The first is that it is understandable why the justice system would be resistant to the idea of culturally differentiated sentencing, because it flies in the face of one of the fundamental principles of legal systems in liberal democracies – equality under the law.  As we pointed out in Disrobing the Aboriginal Industry (quoting the work of Julian Roberts and Carol LaPrairie), two of the fundamental principles that have developed in modern legal systems are ”proportionality”  and “equity” – that “the severity of punishments should be directly proportional to the seriousness of the crimes for which they are imposed” and “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”.  These two principles are violated by “culturally sensitive” sentencing and therefore, in the view of Roberts and LaPrairie, constitute a “retrograde rather than a progressive step” (Roberts and LaPrairie, cited on p. 139). 

Secondly, the focus on the percentage of Natives being incarcerated relative to their population ignores the question of the number of criminal acts being committed.  When one considers that the police are reluctant to even enter a reserve without permission, and that there have been few arrests in areas like Caledonia despite widespread lawlessness, it is highly likely that far more aboriginal people are committing crimes than non-aboriginal people and, if anything, are underrepresented in Canadian prisons when one considers the number of illegal activities that are being engaged in.  Although advocacy research like that conducted for the Royal Commission on Aboriginal Peoples maintains that the “rule of law” is a principle in traditional “aboriginal governance”, this is not supported with convincing evidence.  On the contrary, the principle operating in aboriginal cultures is kinship reciprocity, which actually conflicts with the idea of equality under the law (since response to social breaches is determined by one’s status within the community).

The large number of aboriginal people being incarcerated reflects the higher than average rates of lawbreaking that occurs in native communities – actions that often involve the acceptance of violence as a means to an end.  Attempting to reduce aboriginal incarceration rates without dealing with this cultural problem will have disastrous results for vulnerable members of the native population (often women and children).  This reality, however, will be ignored by those who are more interested in appeasing native leaders than in identifying, and actually addressing, the root causes of aboriginal problems.