After all, "Justice is Blind" right?
By now your undoubtedly wondering what any particular group of people did to be treated in such a harsh manner, why would the courts unfairly base sentencing on a persons heritage, and what can be done to prevent this miscarriage of justice against these poor unfortunate individuals.
Well dear reader do I have a surprise for you.
First, the group in question is Canada's aboriginal people, and secondly rather than sentencing this group more harshly than other Canadians, the high courts instructions were in a nutshell to "take it easy on them as they have been thru a lot"!
The country's top court ruled on the Gladue principle, a directive originally from Parliament which requests that judges recognize that a history of colonization, residential schools and cultural repression has affected generations of indigenous men and women, resulting in a severe over-representation of aboriginal people in Canada's prisons. In plain English, our jails have a lot more aboriginals than non-aboriginals but it's really not their fault, the real culprit is the treatment they received over the last two hundred years or so, and in some cases more the way their grandparents were treated than anything they may have experienced personally. I think I got that right.....
In a ruling handed down in late March, the Supreme Court stated that not evaluating the historical context of aboriginal offenders would represent a breach of sentencing guidelines."Systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness" the ruling states. "Failing to take these circumstances into account would violate the fundamental principle of sentencing — that the sentence must be proportionate to the gravity of the offense and the degree of responsibility of the offender." Again, in plain English..... It's really not their fault that they commit crimes, they were treated badly by society.
So what does actually mean when it comes to sentencing?
Well apparently it is not supposed to mean a "get out of jail free card" for Aboriginal offenders or avoidance of minimum sentencing guidelines. In fact the supreme court clearly states that in their decision and while specifically addressing aboriginals they clearly state that "there in nothing in the Gladue decison which would indicate that background and systemic factors should not also be taken into account for other, non‑Aboriginal offenders." Once more in plain English, the Gladue principle should apply to all.
718.2(e) of the Criminal Code, to consider the unique circumstances of Aboriginal offenders". This is the part that bothers me, let's face it in Canada's history the aboriginals are not the only group that at some point got the short end of the stick. During WW2 Japanese Canadians had their property confiscated and were interned for the duration of the war. Prior to that at the turn of the century the Chinese received a pretty rough ride from Canada's government, including a "head tax" to even enter the country. Yet somehow or other both these groups are not specifically named in the Gladue decision or the courts ruling. One would have thought that they too should receive special treatment due to the hardships they suffered. In fact maybe we should include women, the Irish, Newfies, and any other group who we now feel may have have received less than satisfactory treatment over the last few centuries. Now I believe the real difference lies in the fact that most other groups of a particular heritage or gender have come to realize that the sins of the past, are just that "of the past". Sure some of them have requested redress for treatment imposed by the government, and in some cases rightfully so, but we don't see them filling up our jails.
My point here is that while I feel bad for any group that may have been treated harshly by society or government at one time this simply does not justify giving them any form of preferential treatment under the law. Even worse is the fact that they are being specifically identified within the law. How can a justice system or government claim fair and equal treatment for all when by their very own actions they place on group of individuals above others simply based on their heritage. At the end of the day this is just unfair to all Canadians and clearly illustrates that in Canada "Lady justice is not Blind", apparently her eyesight is fine if you are of aboriginal decent.
Here is a more detailed excerpt from the ruling, written by Justice Louis LeBel for the majority:
When sentencing an Aboriginal offender, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. These matters provide the necessary context for understanding and evaluating the case‑specific information presented by counsel. However, these matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders. Furthermore, there is nothing in the Gladue decision which would indicate that background and systemic factors should not also be taken into account for other, non‑Aboriginal offenders. The parity principle which is contained in s. 718.2(b) means that any disparity between sanctions for different offenders needs to be justified. To the extent that the application of the Gladue principles lead to different sanctions for Aboriginal offenders, those sanctions will be justified based on their unique circumstances — circumstances which are rationally related to the sentencing process. Counsel has a duty to bring individualized information before the court in every case, unless the offender expressly waives his right to have it considered. A Gladue report, which contains case‑specific information, is tailored to the specific circumstances of the Aboriginal offender. A Gladue report is an indispensable sentencing tool to be provided at a sentencing hearing for an Aboriginal offender and it is also indispensable to a judge in fulfilling his duties under s. 718.2(e) of the Criminal Code.