On Sept. 16, 1995, after fatally stabbing her husband as he slept, 19-year-old Jamie Tanis Gladue shrieked: "I got you...bastard." In addition to getting her husband, however, Mr. Gladue bludgeoned the rule of law.
In the course of confirming Ms. Gladue's sentence of three years for manslaughter -- only six months of which were served behind bars -- the Supreme Court of Canada last week admonished the trial judge for not giving due attention to the killer's "Indianness." This ruling expansively interprets section 718.2(e) of the Criminal Code that judges must pay "particular attention to the circumstances of aboriginal offenders."
Thus Canada's top court gave its imprimatur to legal apartheid by which the same offence will be punished differently depending on the ethnicity of the offender. The court justified this extraordinary decision, in effect, by denouncing judges across the country for their "overreliance (sic) on incarceration" for aboriginal offenders.
For instance, the Court pointed out that a male treaty Indian is 25 times as likely to be incarcerated in a provincial jail as a non-native and that aboriginals, though only 3% of the Canadian population, make up almost 15% of federal prisoners. The extent of native incarceration, declared the court, was "so stark and appalling that the magnitude of the problem can be neither understood nor interpreted away."
Alas, the court's reasoning was equally stark and appalling. After all, the "overrepresentation" of natives in the criminal justice system hardly proves systemic racism. Women make up less than 2% of Canada's prison population. Yet no one argues that is because men suffer from systemic sexism in the criminal justice system. Men commit disproportionately more crimes.
Yet the court did not even examine whether natives were more or less likely than non-natives to commit crimes -- surely the first step in any serious inquiry. As it happens, if the court had tried to discover this, it would have had great difficulty. The federal Department of Justice has conspicuously dodged this politically explosive question -- while spending millions of dollars on studies documenting abuses that befall aboriginals once inside the criminal justice system.
What little data exist (which the court did not consider) show that rates of incarceration for aboriginals may not be out of line with their rates of crime. In 1995, the Canadian Centre for Justice Statistics completed a three-city study on police-reported crime. It found that natives were nearly five times as likely as non-natives to commit a crime in Calgary; 10.5 times as likely to do so in Saskatoon; and 12 times as likely in Regina. And these figures undoubtedly underestimated the rate of native participation in crime because police officers only listed as "native" those carrying proof of their treaty status at the moment of their arrest.
Similarly, in 1991, the Aboriginal Justice Inquiry (ACI) of Manitoba reported that reserves were experiencing as much as six times the rate of offences against the person (i.e. rape, common assault, and murder) as were non-reserve areas. And the violent crime rate was 9.0 per 1,000 nationally but as high as 33.1 per 1,000 for Indian bands, or 3.67 times the national rate.
Faced with these facts, some criminologists argue that "alternative" measures to prison would reduce native recidivism.
But these measures already exist. Provincial criminal courts routinely offer "diversion" -- or automatic free passes -- to aboriginals who commit petty crimes such as shoplifting. Wife-beating, child neglect, and other heinous crimes are commonly dealt with through "banishment" or "shaming." And so-called "healing circles," "sweetgrass," or "sweat lodge ceremonies" -- where native criminals can confess their sins to their friends instead of to a judge -- are justified on the grounds that native criminals do not share the White Man's concept of justice.
Despite all these measures, however, natives still commit exponentially more crime than other ethnic groups suffering from similar levels of poverty and low education levels. The ACI concluded in the study quoted above, for instance, that "aboriginal persons consistently have represented approximately 60% of total fine defaulters admitted to jails, even though aboriginal offenders had fewer outstanding fines."
This hardly supports the Supreme Court's argument that the judiciary should now go to even greater lengths to treat natives more leniently from others. Indeed, there is reason to think that such leniency actually makes aboriginals more likely to commit crimes. While rates of recidivism and criminal activity for natives remain alarmingly high, the rate of convictions for all adult offenders was down by five per cent in 1997-98 -- the steepest decline in decades.
Most experts think this is due to the aging of the population. Why exactly? The rejection of a life of crime by older people is almost certainly connected to their getting married, taking jobs, and raising children -- i.e., living a life that raises the cost of going to prison. As long as the price of crime is lower for aboriginals, they will rationally choose an antinomian existence that diverts them from a stable and productive family life. But who would have thought that the highest court of the land would push them in that direction?