The Culture of Forgiving Aboriginal Crimes

"Being aboriginal should have some consideration but it seems that it was all the consideration. Now this stage is over, we are going to be looking for answers. If the judge can't send a message to the community, then we'll have to look for some other way" Joe Gualtieri

The lawyer claims her client, in his unassailable defence, must be excused from his indefensible act because he had been so profoundly affected by a culture of racism. Her client, a young man whose parents, grandparents and extended family had presumably suffered the effects of discrimination and the humiliation and loss associated with residential schools, should be offered the tender qualities of charitable mercy because of the trauma he suffered through the experiences of his forbears.

Richard Smoke, who assaulted Sam Gualtieri in the basement of a house he was building for his daughter, had illegally gained entry to the property, and saw fit to express his raging hatred for this representative of the wider community which had historically oppressed First Nations, through bashing his head with a piece of building lumber while the man lay prostrate on the ground before him.

Only the timely entrance of Mr. Gualtieri's companions stopped the assault from becoming a murder. In the words of Ontario Superior Court Judge Alan Whitten, the attack as it was described by witnesses represented a "senseless and vicious" act, which represented as "just a notch below culpable homicide". It was an attack that left the victim badly injured.

Mr. Gualtieri suffered broken bones, cuts and a brain injury severe enough to impair his memory, his balance, his speech and reading capability. Since recovering from that brutal attack he has been unable to work in his field of construction. Judge Whitten took note of Mr. Smoke at the time of the attack challenging an onlooker: "Do you want to end up like your buddy inside?"

"It is a very serious and grave offence. We are all fortunate that it was not worse", said Judge Whitten before announcing the sentence meted out to Mr. Smoke. "Mr. Gualtieri will live life as brain damaged man", the Judge observed. "There was no necessity for this crime ... it didn't advance any ideology or idea."

Mr. Smoke was part of a 'native warrior' contingent who had set themselves up at Douglas Creek Estates which became a "lawless oasis", where police were instructed not to intercede, and where politicians were loathe to denounce the occupation which had halted construction on a new subdivision, which property the province saw fit to purchase in an effort to still the protest.

The violence and unrest continued unabated, and a year later absorbed a nearby housing development which was precisely where Mr. Gaultieri had begun building a house for his daughter. And where Mr. Gaultieri entered the house to check on the property, with his work crew, when he heard that the protest had spread to that area.

It was, said Judge Whitten, the sad legacy of residential schools and the knowledge that concerns many Canadians that aboriginals are represented in disproportionate numbers in prisons which led him to consider a lighter sentence for Mr. Smoke than he would have otherwise arrived at. Which led Judge Witten to sentence Mr. Smoke to two years in jail, plus time already served.

Mr. Smoke will be spared incarceration in a federal prison and will likely be released before two years is up, then be on probation for three years. "I am totally disappointed. I was expecting him to get four years - and that would have been giving the guy a break. I feel like I have been injured again", commented Sam Gualtieri.