Now that the horrifying details of Myles Sanderson’s very long criminal record are coming out, I can’t help wondering how many times he might have been given the “aboriginal discount” when being sentenced or granted parole..To put it another way, would the 10 people murdered in Saskatchewan last weekend still be alive if not for Parliament’s 1996 enactment of a wrong-headed, race-based amendment to the Criminal Code?.The race-based error made by parliament was to insert clause 718.2(e) into the Criminal Code. It requires a court, when sentencing an offender, to take into account “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community… with particular attention to the circumstances of Aboriginal offenders." [emphasis added]..While the Supreme Court of Canada (SCC) explicitly stated in R. v. Gladue this clause is not to be construed as providing an automatic reduction in sentence — the so-called aboriginal discount — we keep seeing statistics repeated over and over again indicating aboriginals are over-represented in Canadian jails. Currently, they represent about 4% of the adult population, but 26% of the adults in federal custody. Judges and parole boards are obviously under some pressure to change that situation by keeping convicted aboriginals out of jail if possible..It looks as though a Gladue report — a form of pre-sentencing report recommended by the SCC in the Gladue case — must have been prepared for Myles Sanderson when he went before the parole board in February..The Globe and Mail says: “The [parole] documents note factors related to Mr. Sanderson’s Indigenous background may have contributed to his involvement in the criminal justice system, including the ‘intergenerational impacts of residential schools, neglect, exposure to familial and community substance abuse, your own substance abuse issues, exposure to/experiencing domestic violence during your childhood, family fragmentation, lack of education, and loss of culture/spirituality.’”.So having taken those aboriginal circumstances into account, the board decided to release him notwithstanding his 59 criminal convictions, because “your release will contribute to the protection of society by facilitating your reintegration into society as a law-abiding citizen.”.Oops. The board must be mortified..By unfortunate coincidence, Prime Minister Trudeau just appointed a new SCC judge, Madam Justice Michelle O’Bonsawin, who appears to be under the impression clause 718.2(e) and Gladue reports actually make some positive contribution to our justice system. She wrote her PhD thesis on the subject. Unfortunately, we can’t read it — not even the abstract. It’s embargoed until January, 2027 “due to the confidential nature of the thesis." (How can a thesis be confidential?) The title, however, seems to give away her position: A Principled Approach: The Mandatory Application of the Gladue Principles at Review Board Hearings..In fact, Justice O’Bonsawin wrote this opinion piece in The Lawyers’ Daily last year, saying “Gladue reports are an important part of access to justice for Indigenous (sic) persons. They provide for a more meaningful participation of the Indigenous (sic) accused in the sentencing process and as such, provide them with both procedurally and substantively a more significant opportunity to impact the sentence imposed. This should then have a positive impact on the issue of over incarceration of Indigenous persons…The over incarceration of Indigenous (sic) persons is likely a product of the legacy of colonialism and systemic racism.”.It’s worrisome a new SCC judge spews simplistic and highly questionable clichés like this, especially when she herself represents an entirely different aspect of over-representation. She is the first indigenous judge ever appointed to the SCC, but as one judge out of nine, she constitutes 11% of the entire court. Indigenous people are therefore vastly over-represented in both the country’s highest court as well as in its jails. How odd..The over-representation is even more apparent within the Independent Advisory Board that searched for candidates to fill this SCC slot. Two of the eight members, or 25%, were indigenous. This was probably not a coincidence. Someone in the Trudeau government undoubtedly thought it was high time an indigenous person made it to the SCC. Were Advisory Board members genuinely looking for the best candidate they could find, or were they looking for the best aboriginal candidate they could find?.I’ve always thought that Criminal Code clause 718.2(e) was really stupid. Yes, it really is a problem if the relatively tiny aboriginal segment of society is getting convicted of more than a quarter of serious crimes. But nobody is seriously suggesting they’re being framed for crimes they didn’t actually commit, or criminals from the other 96% of society are getting off scot-free. Aboriginals seem to be going to jail in such high proportions because they’re actually committing a disproportionate number of crimes..The problem of excessive crime in the aboriginal community cannot be resolved at the sentencing or probation stages. Something has to be done to address the question of why so many aboriginals commit crimes in the first place..Among the general sentencing principles in criminal law are these two: We impose unpleasant penalties in order to deter individuals from committing crimes, and we keep offenders — especially repeat offenders — locked up in order to protect the other members of society from them..If the Gladue principles make conviction more palatable by diverting offenders to sentencing circles rather than prison, they undermine deterrence. If they allow offenders to avoid jail more easily just to alter the statistics, they undermine the protection of society. I’ll bet right now the people of the James Smith Cree reserve and Weldon, SK wish the Gladue principles had never been heard of..Clause 718.2(e) has been in place for about 26 years, without achieving any significant reduction in aboriginal over-representation in prisons..How many more innocent people will be victimized before parliament decides to repeal it?
