‘What Happened To Legal Equality?’


In attempting to cope with the high proportion of aboriginals in Canadian prisons, Parliament and our judicial leadership have unfortunately resorted to differential treatment based on race/heritage:

“Aboriginal-specific programs within correctional institutions should acknowledge THE UNIQUE EXPERIENCES AND NEEDS OF ABORIGINAL OFFENDERS. One of the most striking facts, is that aboriginal people are clearly over-represented in both provincial and federal correctional institutions…” {CAPS added} 


ERBLEqualityBeforeAndUnderLaw800x800And, of course, there’s also this:

“Criminal Code, Section 718.2:
“(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, WITH PARTICULAR ATTENTION TO THE CIRCUMSTANCES OF ABORIGINAL OFFENDERS” {CAPS added}

That discriminatory clause is what the Supreme Court based its ‘Gladue’ ruling on, and has produced the ‘Gladue’ courts {see below}.

However, it conflicts directly with Section 718.2(b), THREE LINES ABOVE IT in the Criminal Code text:

“(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”

We need to start living up to CANADIAN values, and the legal equality of all individual citizens as stated in Section 15(1) of the Charter:

“‘Equality before and under law, and equal protection and benefit of law’
(1) “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” 

gladueEDIT‘R. v. Gladue, [1999] 1 S.C.R. 688’

“The Supreme Court of Canada’s decision in ‘R. v. Gladue’ is a significant recognition of the position of Aboriginal offenders in the Canadian criminal justice system. It is well known to those working within the criminal justice system that Aboriginals are ‘overrepresented’ {as in ‘commit more crimes’}. The Supreme Court indicated in their decision that it “may reasonably be termed a crisis.”

“The essence of the decision was the Court’s interpretation of section 718.2(e) of the Criminal Code of Canada. The Court determined that

” “it is reasonable to assume that Parliament, in singling out [A]boriginal offenders for distinct sentencing treatment in s. 718.2(e), intended to attempt to redress” over-representation and over-incarceration of Aboriginal offenders.”

“Essentially, the decision requires sentencing judges to consider the unique systemic factors that may have brought a particular Aboriginal offender before the courts, and to consider all possible alternatives to imprisonment for Aboriginal offenders, even if those alternatives do not have a cultural component…

“While many pre-sentence reports incorporated Gladue factors, a problem surfaced where many Aboriginal offenders who have experienced racism, discrimination, poverty, family dysfunction and addictions were not comfortable discussing those issues with a stranger—especially where one is non-Aboriginal and working for the criminal justice system…

“For the most part, Gladue reports have been authored by an Aboriginal. An Aboriginal report writer has a better understanding of the unique circumstances faced by Aboriginal people and, more often than not, shares those experiences in common with the Aboriginal offender…”


supreme-court-of-canada“Judges enraged by inadequate access to ‘native sentencing services’ — despite an edict from the Supreme Court of Canada requiring it — have been reducing prison terms for serious aboriginal offenders in response, recent court decisions reveal.

“And as courts struggle to accommodate the requirement of taking ‘detailed aboriginal heritage’ into account, LOWER SENTENCES MAY BE FOLLOWED BY OUTRIGHT ACQUITTALS, legal service providers warn. {CAPS added}

“Two dramatic cases — of an aboriginal man who broke into the home of a 62-year-old woman, then robbed and raped her; and of an aboriginal woman caught smuggling heroin into Canada — led judges to issue scathing admonishments over the government’s poor attention to the mandated ‘sentencing principle’.

“With one calling it “a shameful wrong”, both judges ruled the problems warranted reduced sentences…”

{It’s sad that they don’t see the “shameful wrong” that results from unequal application of the law…}


alstlogo2From ‘Aboriginal Legal Services of Toronto’:

‘Gladue (Aboriginal Persons) Court’
“There are now three Gladue (aboriginal persons) Courts in Toronto…

“The courts derive their name from the 1999 decision of the Supreme Court of Canada — ‘R v. Gladue’ —
that set out the parameters of section 718.2(e) of the Criminal Code regarding the sentencing of offenders, and in particular, aboriginal offenders…

“The Court accepts guilty pleas, sentences offenders and does bail hearings…”


Gladue-Logo‘Gladue in Sentencing’ (University of Saskatchewan):

Lebel J. in ‘Ipeelee (SCC 2012)’:

[72] “… . The methodology set out by this {Supreme} Court in ‘Gladue’ is designed to focus on those unique circumstances of an Aboriginal offender which could reasonably and justifiably impact on the sentence imposed. Gladue directs sentencing judges to consider:

(1) the unique systemic and background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and
(2) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection.”

“… 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. 

“Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options for positive development. …. .

“Few mortals could withstand such a childhood and youth without becoming seriously troubled.”
{Then why wouldn’t these provisions apply to ALL ‘mortals’ in a similar situation?}

“What is important to recognize is that, for many if not most aboriginal offenders, the current concepts of sentencing are ‘inappropriate’ because they have frequently not responded to the needs, experiences, and perspectives of aboriginal people or aboriginal communities.”

“As the RCAP {written by aboriginals} indicates, at p. 309, the “crushing failure” of the Canadian criminal justice system vis-à-vis Aboriginal peoples is due to

“the fundamentally different world views of Aboriginal and ‘non-Aboriginal’ people with respect to such elemental issues as the substantive content of justice and the process of achieving justice”.

{And that, of course, is due to the developmental gap between the two. Any failure to understand a modern worldview requires education, and any accommodation should be transitional in nature…}

“The Gladue principles direct sentencing judges to abandon the presumption that all offenders and all communities share the same values when it comes to sentencing {but ONLY in the case of ‘aboriginals’!} and to recognize that, given these fundamentally-different world views, different or alternative sanctions may more effectively achieve the objectives of sentencing in a particular community.”

{Obviously, if this were the case, ALL Canadians would have to be profiled, to find out which ‘sentencing values’ are held by their community so that they could be sentenced accordingly. The absurd ‘logic’ underlying our Court’s attitude is here exposed for all to see…}
‘Aboriginal People are Unique’
“The overwhelming message emanating from the various reports and commissions on Aboriginal peoples’ involvement in the criminal justice system is that current levels of criminality are intimately tied to the ‘legacy of colonialism’ (see, e.g., ‘RCAP’, at p. 309). As Professor Carter puts it,

“poverty and other incidents of social marginalization may not be unique, but how people get there is. No one’s history in this country compares to Aboriginal peoples’…”

“The wonder is that we do such a poor job in trying to help them fulfill their needs (many of which we caused). Will we look back to this time, in the future, as yet another example of destructive colonization?
“Many lower courts continue of the view that an aboriginal accused has an onus to prove that they have suffered personal trauma by colonialism and related concerns.

“Is there an aboriginal person in Canada that has not been harmed by the policy of assimilation that gave rise to residential schools? Is it only those that attended residential schools who were harmed by them? What of the parents who lost their children when they were ‘kidnapped’ by government agents?

“What of the children of those that attended residential schools? What of the children of the children of those that attended residential schools?”
{And let’s not forget the children of the children of the children of those that attended residential schools…}
“This is the legacy of physical and sexual abuse in residential schools.” [Aboriginal Healing Foundation, 1999:A5]
{What about the legacy of physical and sexual abuse within the tribe or village???}

“The intent of the Gladue decision remains to gather social history evidence from the Aboriginal person and their families as a way to educate justice officials…”


CourtroomChairs‘A Court of Our Own’: More on the Gladue Courts

“What distinguishes the court is that most of those involved in the court have had some training on ‘the issues of relevance to Aboriginal people’ appearing before the court…

“In ‘Gladue’, the Supreme Court made it clear that s. 718.2(e) applies to all Aboriginal people in all courts all across the country…

“It is the role of the ‘Gladue Caseworker’ to write Gladue reports regarding Aboriginal people who have pled guilty (or been found guilty) of criminal offences. Gladue reports — which average 12 to 18 pages in length — focus in depth on the life circumstances of the Aboriginal offender. When necessary, the report links that life story to broader issues facing Aboriginal people — such as the ‘inter-generational trauma of residential schools’, or the ’60s Scoop’.

“These Gladue reports also provide detailed recommendations for the judge to consider in terms of sentencing. If, for example, it might be reasonable for the offender to take part in a drug or alcohol treatment program, the report would not only indicate this, but the writer would have assisted the person to fill out an application to an appropriate treatment centre, would have confirmed an acceptance date for the person and, where necessary, assisted in covering the cost of transporting the individual to the treatment

{Wouldn’t this also be helpful to ANY needy Canadian in the same situation?}

“In addition to participating in Gladue Courts, ALST’s Gladue Caseworkers write reports for Aboriginal offenders who find themselves in courts other than Gladue Courts… Funding for the program comes from the Ministry of the Attorney General and Legal Aid Ontario…”


legal_aid_logo‘Services for Aboriginal clients – Legal Aid Ontario’:

“Legal Aid Ontario has made services to Aboriginal clients A PRIORITY….

“If you are an Aboriginal person, it is important that you self-identify your Aboriginal ancestry to your lawyer or duty counsel. The ‘Criminal Code’, the ‘Youth Criminal Justice Act’ and the ‘Child and Family Service Act’ ALL have parts that consider the ‘unique legal status’ of Aboriginal people in Canada…

“Every criminal court in Canada is required to take Gladue factors and principles into consideration when sentencing an Aboriginal person. Courts in Ontario are also required to take a person’s Aboriginal background and the Gladue principles into account at bail hearings…” {CAPS added}

“Not only does the law make it mandatory to consider an Aboriginal person’s circumstances, defence counsel has a responsibility to bring those circumstances to the attention of the court whenever jail is a possibility.

“If defence counsel fails, the job falls to the Crown, and if both defence and Crown fail, then the judge must make his or her own inquiries of the person before the court…”


Gladue-Primer-388-lss‘Gladue Resources’:

2007_stirling-w-warrior-flag-kkkanada-signFB“According to Canadian law, judges must pay particular attention to the circumstances of aboriginal offenders in order to reduce the over-representation of aboriginals in the justice system. They must do so even if aboriginal offenders’ lawyers do not raise the issue of their clients’ race at trial. They must also make allowance for offenders’ status in regard to whether offenders live on or off a reserve.

“…If this information is new to you, don’t worry. The issue of unequal justice in favour of aboriginals seldom comes to the fore because, to be frank, most violent crime committed by aboriginals is committed against other aboriginals…

“That likely explains the justifiable public outrage over the past week at the ultra-light sentence given to Richard Smoke for a vicious beating he laid on a home builder during the violent {illegal} ‘occupation’ of a new residential subdivision near Caledonia, Ont., in the summer of 2007.

“Sam Gualtieri and three other construction workers were building four homes at the Stirling South subdivision, about a kilometre from the disputed Douglas Creek subdivision. One morning in mid-September, Mr. Gualtieri and his men arrived at one of their projects and saw silhouettes moving around inside.

“Mr. Gualtieri went in to investigate, only to find three aboriginals camped out inside. He confronted the trio. His men followed only moments later, yet by the time they entered the framed-in home, Smoke had already badly injured Mr. Gualtieri and was standing over his limp and battered form with the 2×4 he had swung, using both hands, at the contractor’s head and body. Smoke’s underage accomplices had fled.

“Several of Mr. Gualtieri’s bones had been broken, including some in his face and head. He sustained permanent brain damage and still has trouble reading, speaking and walking.

“For this vicious attack — which Ontario Superior Court Judge Alan Whitten described as “just a notch below culpable homicide” — Smoke was given a sentence of less than two years (not quite three years with time served).

“This special treatment isn’t unusual for aboriginal offenders. But the federal government shouldn’t let it stand, either. The federal Justice department must appeal Smoke’s sentence all the way to the Supreme Court in the hope that the current court will reverse, at least partially, the lunacy and inequity foisted on the country by its 1999 predecessor.

“The Gladue decision, which established the practice of preferential treatment for aboriginal offenders, came at the end of a period of particularly irrational sentimentality from the court in regard to aboriginal issues. Over six years, ending with Gladue, the court manufactured out of thin air several precedents that favour aboriginals. The justices decided that ‘First Nations’ oral histories should have the same force when determining land claims as land title records, written treaties and scholarly research. They also decided that aboriginals could hunt and fish with impunity, in or out of season, indifferent to most conservation regulations, because that was their traditional way of life.

“In one especially appalling decision — the 1999 ‘Marshall’ case from Nova Scotia — the court so badly misinterpreted the history of the early Maritime treaties that it was forced to issue a formal correction of its ruling, but decided to stick with its initial decision permitting aboriginals to fish commercially out of season even though it got the evidence upside down and backwards.

“Aboriginals do not need special treatment in court, nor has the special treatment they have received over the past 14 years done much to reduce the rates of aboriginal crime or violence. Moreover, while aboriginals may be over-represented in prison relative to their share of the population (21% of prisoners versus 4% of the population), they are not over-represented relative to their involvement in crimes. About one-in-five crimes in which the race of the suspect is identified is committed by an aboriginal, just as about one-in-five prisoners is aboriginal.

“The kind of preferential treatment Richard Smoke benefitted from only encourages would-be ‘First Nation’s offenders to commit crimes, because they know the consequences will likely be light. At the same time, it is an insult to people like Sam Gualtieri — victimized once by a man with a two-by-four, and again by the court system that denied him justice.”

–‘The two colours of Canadian justice’,
Lorne Gunter, National Post, January 4, 2012


Blair Gable / Reuters
Blair Gable / Reuters

From 2012:
“Manasie Ipeelee, a 39-year-old Inuk from Iqaluit, had an alcoholic mother who died when he was a child. Ipeelee himself was an alcoholic by the time he was 12.

“Before he turned 19, he already had 36 convictions. Several of them involved instances in which he had beaten other men into submission — and then continued stomping on their heads even after they had lost consciousness. In another case, he raped a homeless woman while punching her in the face.

“Frank Ladue, a 50-year-old member of the Ross River Dena Council, an hour’s flight northeast of Whitehorse, saw both his alcoholic parents die when he was a child. He…began drinking at nine, and then graduated to drugs. Beginning in the 1980s, he began sexually assaulting women — typically when they were drunk or unconscious.

“There is little hope of any kind of “rehabilitation” for either of these men. They are lifelong addicts who have sadism programmed into their tragically wounded souls. But oh how we try. In Ladue’s case, the Correctional Services of Canada even tried to send him to Linkage House in B.C., so he could receive “culturally specific” support from an Aboriginal Elder.

“If only taking the monster out of the man were that easy. The whole concept of “alternative sentencing” for aboriginals — encoded in Section 718.2(e) of the Criminal Code — is built on the idea that natives somehow can be deprogrammed from crime if they are permitted to reconnect with their communities in a positive way. And no doubt, that sort of special treatment may work for, say, young runaways from aboriginal reserves who fall prey to big-city gang life. But it is naïve to think that men such as Ladue and Ipeelee belong anywhere except prison.

“The specific question addressed by the Justices in their Friday judgment was whether aboriginal-sentencing principles apply specifically to men classified as “long-term offenders” — meaning they’ve shown a pattern of reckless and violent criminality — who, like both Ipeelee and Ladue, have been judged in breach of long-term supervision orders.
On an expansive {‘Gladue’} reading of Section 718.2(e) and associated case law, the Court majority said ‘yes’.

“But the more persuasive opinion is the dissent by Justice Marshall Rothstein.

“Cutting through the somewhat mushy, competing standards that govern criminal sentencing, Rothstein emphasizes that “protection of the public” must be “the paramount consideration in setting the timing and conditions for [a prisoner’s] release.” He also notes that by the time a convict has been slapped with a long-term supervision order, it’s already clear that “rehabilitation and reintegration” (the goals of alternative sentencing) “are not being achieved.” Even if all of a defendant’s problems can be traced to residential schools and drunken parents, that doesn’t mitigate the threat of continuous and brutal violence that he poses to the community.

“And more often than not, the community under threat from released aboriginal prisoners is, itself, aboriginal — which means that it is primarily aboriginal men whose heads are at risk of being stomped, and aboriginal women at risk of rape, once the prisoner is set loose.

“Aboriginal communities are not a separate category entitled to less protection because the offender is Aboriginal,” Justice Rothstein writes…

“Fine words — and they deserve to be read by legislators. When Section 718.2(e) of the Criminal Code came into being in 1996, it originally was interpreted narrowly. That changed with the Supreme Court’s 1999 decision in ‘R. v. Gladue’, in which the Justices appointed to themselves a broad ‘social-justice’ mandate. Now, every aboriginal defendant presents a “Gladue report” at his sentencing hearing. Aboriginal Justice Strategy programs have proliferated. ‘R. v. Ipeelee’ is part of this trend.

“Justice Rothstein has sensibly reminded us…that in the case of serial rapists and thugs, protecting real innocent lives is more important than abstract social justice principles; and that career sadists do not become reformable simply because they happen to be aboriginal.

“Stephen Harper’s government prides itself on getting tough on crime, yet has spent too much of its time pursuing the wrong targets — such as soft-drug users. If the Prime Minister wants to help protect citizens, and especially aboriginals, from truly violent criminals, reforming Section 718.2(e) of the Criminal Code…would be a sensible, and popular, path.”

–‘A Supreme Court dissenter gets it right on violent aboriginal criminals’,
Jonathan Kay, National Post, March 24, 2012

“What those fools just did was codify race based justice. It’s sickening blaming their ancestors’ treatment for the actions of natives who are becoming habitual criminals. It’s not my job to rehabilitate them, those judges should be fired. If I get raped by a white boy, he’ll go to jail; if a native rapes me, they get to ponder all the ills his past dead ancestors suffered.”
“One nation, one people, and one law for everyone is the only true fairness and justice.
… Everything else is just living somewhere in the past.”
“I couldn’t agree more. Although I’m sometimes sympathetic to their plight, no group of citizens are entitled to get out of jail free cards for any reason…”
“Consider the following scenarios:
–If a straight man beats up on a gay man, he gets a stiffer sentence for his “hate crime”, since merely beating up another straight, regardless of motive, is considered less reprehensible (i.e. more acceptable) than beating up a gay.
–A Native Indian who is convicted of any violent crime will get a lesser sentence than a non-Native, ostensibly because of his aggrieved and disadvantaged cultural background.

“But what if, say, a Native beats up on a homosexual? Is the increased penalty for the hate crime cancelled out by the reduced penalty for being a Native Indian?
Furthermore, if a non-Native beats up on a Native, he will likely receive a stiffer penalty because, again, beating up on minorities is a “hate crime”; but conversely, if a Native Indian beats up a non-Native, he will be eligible for a reduced sentence simply because he is a Native Indian…”
“Creating a different legal status, a lower level of expectations, for one cultural group, dooms them just as badly as the events of their childhood. It means they are never held to account. And it leaves their victims, who are often also Aboriginal, with fewer legal rights than other Canadians. That is sick. It’s twisted. It’s paternalistic, systemic racism.”
“Too sad and pathetic to be held responsible for their actions (this, in effect, is what the law states). I wonder how the proud and noble Indian leadership can look at themselves in the mirror and accept the paternalistic and patronizing treatment?
Just wondering, but did the Irish back in the day (with their stolen land, loss of language, suppression of their religion, forced migrations, slaughter, endemic alcohol abuse, abject poverty, and extreme discrimination) ever get the same legal breaks as the Indians do now?”
“From my experience living near a northern reserve, the situation seems hopeless. The amount of dysfunction in the community and families — crime, suicides, addiction, abuse, and Fetal Alcohol Spectrum Disorder — has reached a tipping point. You can throw a gazillion dollars at native communities for historical wrongs but without a plan to prevent yet another generation of broken kids, you might as well use the money to build a grand memorial in Ottawa. Research into better addiction treatment for natives and treatment of FASD would be a good start.
Justice Rothstein is correct — sending violent offenders back to their native communities creates more native victims. Special sentencing is not compassion, it is cruel and unfair to native families trying to protect their kids from gangs and crime.”
“It’s bigotry via low expectations. They basically said when a Native rapes, maims or breaks the law, it’s not their fault — it’s our ancestors’…”
“New jargon in Canadian legal lexicon:
“How do you plead?”

“Not guilty, by reason of Indianity.”
“I will never go back to live on the reserve, neither will I allow my children to go to the reserve, nor have any relationships with those on the reserves. Until us first nations take responsibility and deal with these guys that terrorise the majority of us, we are all victimized by them. I have chosen to live in a European community and I have never been victimized by any of them and they all treat me with a great deal of respect. Respect is only a word on the reservation, it is not something that you actually get unless you have political, financial or some other power to terrorize everyone with.”
“For Aboriginal communities, how will victims of violence and sexual abuse ever find safety? I do not understand how at any level they can be secure and free from the threat of being terrorized by a violent offender. If anything, it sets the stage for more violence, and the potential for victims to take justice into their own hands in order to stop the victimization.
This S.C.C. makes Aboriginal communities less safe and it has the potential of doing real harm. What is wrong with these S.C.C. judges? Why should an Aboriginal community be forced to tolerate a lower standard of safety and security — because in a practical sense, this is the most likely outcome…”
“Many do break the cycle and we should encourage this as much as possible. And I would suggest trying to walk a mile in their shoes. People born into poverty and addiction have a hard time escaping it. That however doesn’t relieve them of their responsibility of following the law.
However, a two-tier justice system is unacceptable.”
“It makes no sense to give early release or light sentences to incorrigible criminals. The SCoC is putting citizens at risk through their social work. If they prefer being in social work, they should resign and get a job on reserves “fixing” the problem.
Otherwise, they need to do their job using logic – not sentiment – and keep us safe.”
“Consider the following scenarios:
–If a straight man beats up on a gay man, he gets a stiffer sentence for his “hate crime”, since merely beating up another straight, regardless of motive, is considered less reprehensible (i.e. more acceptable) than beating up a gay.
–A Native Indian who is convicted of any violent crime will get a lesser sentence than a non-Native, ostensibly because of his aggrieved and disadvantaged cultural background.

“But what if, say, a Native beats up on a homosexual? Is the increased penalty for the hate crime cancelled out by the reduced penalty for being a Native Indian?
Furthermore, if a non-Native beats up on a Native, he will likely receive a stiffer penalty because, again, beating up on minorities is a “hate crime”; but conversely, if a Native Indian beats up a non-Native, he will be eligible for a reduced sentence simply because he is a Native Indian…”
“Here’s how the SCC appointee’s stack up.
Mulroney = McLachlin
Chretien = LeBel/DesChamps/FIsh
Martin = Abella
Harper = Rothstein/Cromwell/Moldaver/Karakatsanis
“Justice isn’t blind in Canada, it’s racist.”
“A two tier justice system based on race. Wow!”

ERBLDoingTheCrimeButNotTheTime600x600See Also:

‘The Strange Case of Canadian ‘Legal Equality’ {March 26, 2015}:

‘Judge Gives No Jail Time’ {February 16, 2015}:

‘Lateral Violence: the latest colonial sin’ (Michael Melanson) {May 9, 2015}:

‘Doing The Crime, But Not The Time’ (Widdowson & Howard) {December 1, 2014}:

‘Customary Justice — The Rights of the Stronger’ (Widdowson & Howard) {December 2, 2014}:

‘Keeping Abuse In The Family’ (Widdowson & Howard) {December 15, 2014}:

‘Saskatchewan Judges Saying ‘No’ To Race Based Law’ (Gladue) {October 4, 2014}:

‘Ontario creates new position for ‘aboriginal justice’ {April 20, 2014}:

‘More ‘Gladue’ Injustice {November 14, 2013}:
The Prince George Citizen
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