Special consideration for aboriginals in the courts is a matter of fairness

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TheGlobeandMail.com – news/commentary/opinion
Published Friday, Apr. 20, 2012.    Kent Roach And Jonathan Rudin

Readers of The Globe and Mail may have been left with the impression, as a result of the Supreme Court of Canada’s recent sentencing decision involving two aboriginal offenders, that all aboriginal offenders are receiving automatic discounts from their sentences. Nothing could be further from the truth.

Coverage of the 157-paragraph Supreme Court case involving Manasie Ipeelee in Ontario and Frank Ladue in B.C. paints a distorted picture. It focuses on the criminal history of one of the offenders – Mr. Ipeelee – and suggests that the court’s decision gave him, and will give other aboriginal offenders, undesired leniency because they are aboriginal.

We would do well to acknowledge the important story of Mr. Ladue, the other offender whose sentence was reviewed by the court. Like Mr. Ipeelee, he had a long criminal record, but he was denied the chance to attend a halfway house and rehabilitation program designed for aboriginal offenders, including offenders who – like him – are residential school survivors. Instead, he was sent to downtown Vancouver, against his express wishes, where he breached the condition that he not become intoxicated.

What the court actually decided in these cases was that one-year imprisonment was the appropriate sentence for both individuals for their breach of long-term offender conditions that they abstain from intoxicants. In both cases, the court held that trial judges erred by imposing three-year sentences that were disproportionate to the offence. The offence was not about violence – the offence was becoming intoxicated.

Proportionality between the offence and the punishment is a traditional and, indeed, fundamental purpose of sentencing. It applies to all offenders. Many may have preferred the three-year sentence and that, if errors are made, they be made on the side of public safety. But where does this argument stop? Indeterminate detention would eliminate more risk. But it is fundamental in a democracy that people be sentenced for what they have done – not what they may do.

The Supreme Court is also criticized for favouring rehabilitation over public safety. But this is a false dichotomy. In the case of most offenders, there will not be true public safety unless there is rehabilitation. The court said that the purpose of a long-term supervision order – the order that was breached – is to aid in the rehabilitation and reintegration of an offender. The order was not designed as a tool to keep people who had finished their sentences locked up forever.

Public understanding of the case also has not been helped by subsequent reports of a case in which Del Louie, a 22-year-old man diagnosed with fetal alcohol spectrum disorder, was sentenced to 18 months at an alcohol rehabilitation centre. The impression given, again, is that the judge reached this decision solely because the offender was aboriginal.

The decision does not amount to a lower standard of accountability – the offender was found guilty and given a lengthy sentence – but rather an attempt to deal with the reasons why the offender was before the court and to respond to the causes of his behaviour.

Judges are required to look at the circumstances of aboriginal offenders because Section 718.2(e) of the Criminal Code requires them to do so. The need for such consideration exists because, as the court found, aboriginal people face direct and systemic discrimination in the criminal justice system.

The section does not require or mandate lower sentences for aboriginal offenders. What is required is that judges take the time to look at the circumstances of the aboriginal offender and the types of sentences available to address the offending behaviour, in order to determine an appropriate and fit sentence. Considered sentences that hold offenders accountable and address the causes of their offending do not jeopardize public safety, they contribute to it.

Kent Roach, a professor at University of Toronto Law School, was counsel for the British Columbia Civil Liberties Association. Jonathan Rudin, program director of Aboriginal Legal Services of Toronto, was counsel for Aboriginal Legal Services in the Ipeelee and Ladue appeals at the Supreme Court of Canada.

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