On March 24, 2016, the Globe and Mail reported that “outspoken” Justice Melvyn Green broke from “sentencing traditions that have contributed to widespread incarceration of aboriginal Canadians” by sentencing a 40 year old aboriginal man to 30 months of probation in place of an expected two to five year prison sentence. The Federal prosecution service is appealing this sentence. Justice Green noted the dismal life experience of the man whose father had been raised in an orphanage, whose mother had spent ten years in a residential school, and whose parents were both abusive alcoholics. The accused man had grown up in a housing project in Toronto, “suffered from racism, was bullied, drank and used and sold drugs”. Yet this man had been on bail for 27 months since his arrest in 2013, had remained crime and drug free, obtained a high school diploma, attended college, and held down a job. He is in a stable, long term marriage and an excellent father to his young son. Justice Green’s decision reflects Trudeau’s directive to increase the use of restorative justice and reduce imprisonment among aboriginals. The article in the Globe and Mail noted Justice Green’s advocacy for the “moral imperative of restraint, i.e., justice dispensed without revenge. In 2013 Justice Green’s article in a criminal lawyers’ newsletter stated that crime laws passed by Steven Harper’s government had “cast a dark shadow on the sentencing principles of proportionality and restraint”.
An article in the February 29, 2016 issue of Maclean’s magazine by Nancy Macdonald paints an ugly picture of how Canada’s justice system mistreats Indigenous people. In the last decade, admissions of white adults to Canadian prisons declined while incarceration rates for indigenous people surged, e.g., a 112 percent increase for aboriginal women. Although Indigenous people constitute four per cent of our population, provincial and territorial correctional facilities have occupancy rates of 36 per cent aboriginal women and 25 per cent aboriginal men. The Maclean’s article is well worth consideration. It describes the ongoing effects of residential schools on aboriginal populations, the short shift accorded aboriginal clients by “duty counsel”, and the failure of courts to follow principals outlined by the Supreme Court in R. v. Gladue which were to be used in sentencing aboriginals. The increasing use of dangerous offender designation, particularly among aboriginal persons, has increased trapping those affected in lengthy imprisonment; in Saskatchewan, 80 per cent of inmates are aboriginal. Aboriginal offenders are far less likely to be housed in minimum-security facilities and to be place in segregation. The Maclean’s article states that “Ottawa, which, for a decade, has been ignoring calls to reform biased correctional admission test, bail, and other laws disproportionately impacting Indigenous offenders. Instead, it appears to be incarcerating as many Indigenous people as possible, for as long as legally possible, with far-reaching consequences for Indigenous families.” This effect is not due to a crime spree but “because of the impact of social factors, government policy, and mandatory minimum sentences”.
There is no simple solution to the aberration of lopsided justice for aboriginal people in Canada. Rather the historical and current factors in aboriginal populations and changes in how aboriginal people are treated in our justice system must all be addressed. Radical change begins with examination of our own attitudes, biases, and actions. The Truth and Reconciliation Commission is a great beginning; implementing its recommendations needed to bring about justice for Indigenous Canadians.
Pat McKeon, CSJ