Straight Talk
TOM BRODBECK - Federal Justice Minister Rob Nicholson backs Gladue racist sentencing laws

Rob Nicholson, Minister of Justice and Attorney General of Canada.

Credits: ANDRE FORGET/QMI AGENCY

TOM BRODBECK | QMI AGENCY

Federal Justice Minister Rob Nicholson appears to support Canada’s racist sentencing laws that treat people differently based on their culture and heritage.

At least that’s the best one can glean from a written response he sent to Winnipeg Sun readers this month who forwarded him a copy of a March column I wrote on the top reforms I’d like to see in the criminal justice system.

Among the changes I recommended was for Parliament to scrap the so-called Gladue provision courts are now forced to use in sentencing aboriginal offenders.

Under the judge-made law — named after a 1999 Supreme Court decision — courts must take an aboriginal offender’s culture and ancestry into account when crafting a “fit” sentence. There is no prescription in law for the courts to take similar steps for non-aboriginal offenders.

The courts must consider as mitigating factors the effects of colonialism, residential schools, displacement and other historical wrongdoings, including what impact those may have had on aboriginal offenders.

There are no similar provisions for non-aboriginal offenders, including those who may have come from war-torn countries or suffered directly or indirectly from human atrocities such as the Holocaust or Cambodia’s Khmer Rouge mass-killings of the 1970s.

No, the sentencing provisions are based on the race of the offender only. Which is racism. And in a free, just and democratic country like Canada, it’s appalling we have these kinds of laws on the books.

Unfortunately, Nicholson appeared to defend them in his letter. Or at the very least, he expressed no concern about them whatsoever.

“With regard to the treatment of aboriginal people in the criminal justice system, let me assure you that, at a general level, aboriginal offenders are subject to the same criminal justice laws and sentencing principles as all Canadians,” Nicholson wrote.

Actually they’re not. If you’re an aboriginal offender, a “Gladue report” must be prepared and considered by the court as part of the sentence. That was re-affirmed by Canada’s top court earlier this year. It’s the law. And the contents of the Gladue report may contribute to the reduction of the aboriginal offender’s sentence.

So no, Mr. Nicholson, aboriginal offenders are not treated the same.

“Generally, aboriginal and non-aboriginal offenders who commit violent and serious offences are likely to receive similar terms of imprisonment,” Nicholson wrote. Generally? Likely?

Yes they may “generally” or “likely” get “similar” sentences. But they also, from time to time, get more lenient sentences by virtue of their race, through a Gladue report.

And you don’t have a problem with that, Mr. Nicholson?

What’s incredible is there is no evidence whatsoever that Parliament intended for the courts to demand Gladue reports. In a 1995 amendment to the criminal code, Parliament added a section calling on the courts to seek alternatives to jail sentences when possible and to give “particular attention to the circumstances of aboriginal offenders.”

That has been interpreted by the courts to mean every aboriginal offender is entitled to a Gladue report and that the contents of the report may result in a more lenient sentence.

The section was added to address the outrageously high proportion of aboriginal offenders in Canada’s prisons.

Instead of creating racist laws, Parliament should address some of the root causes of why so many aboriginals are in jail — like the effects of another racist law, the Indian Act, and the continued segregation of aboriginal people. How about the squalid and inhumane conditions of many reserves in Canada?

Reducing jail sentences for aboriginal offenders will do nothing to address the root cause of the over-representation problem (it hasn’t worked so far). But it will continue to perpetuate racism in this country.

Not sure why Rob Nicholson would be in favour of that.

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