A Legal Quagmire : Only In Canada

"The law is clear. Sentencing judges must pay particular attention to the circumstances of Aboriginal offenders."
"A sentencing judge ... did not consider the impact of broad historical events and the systemic factors that played a part in the appellant's makeup."
"The diminished culpability of the appellant warranted a departure from the overriding principles of denunciation and deterrence to accommodate the principle of rehabilitation and a restorative justice plan."
"The jointly proposed sentence was sufficient in the circumstances, and was focused on a rehabilitative and restorative sentence for the appellant, and did not fail the public interest test."
Prince Edward Island Appeal Court finding

The Supreme Court of Canada’s 1999 Gladue decision said judges must take note of systemic or background factors when determining a sentence for Indigenous offenders in order to address their “serious overrepresentation’’ in prison.  (Adrian Wyld / THE CANADIAN PRESS file photo)

A provincial court justice in Prince Edward Island, faced with a joint Crown-defence submission that would have enabled a 20-year-old man of Cree background to avoid prison time as penalty for possession of cannabis for the purpose of trafficking -- found with 15 grams at Charlottetown Rural High School -- made the decision not to consider the Aboriginal heritage of the man when she arrived at her decision of an intermittent sentence of 90 days in prison.

Her reasoning was that the man, Nicholas George Nash McInnis, removed from his biological parents at birth, placed in the care of Manitoba Child and Family Services and adopted by a non-Indigenous couple originally from Prince Edward Island when he was seven months old, made the fact that he was Aboriginal irrelevant since he was not raised in an Indigenous Canadian environment, having had little exposure to his heritage and culture, raised by John and Brenda McInnis.

He had not been raised by his biological mother who lived in Manitoba. On appeal, the Prince Edward Island Court of Appeal felt the judge had been in error, to refuse accepting systemic factors that would serve under the law to reduce the criminal culpability of the young man on the charges before her. In 1999 the Supreme Court of Canada brought in its Gladue report which mandated that in sentencing an Aboriginal Canadian account must be taken of his ancestry and culture.

Judges must take care to note systemic or background factors during the determination of a sentence for offenders of Indigenous backgrounds -- for the purpose of recognizing and addressing their "serious over-representation" in Canadian prisons. As far as the appeal court was concerned, the Gladue report was incorrectly not applied to Nicholas McInnis, as a summary of his circumstances to be presented to court at sentencing.

This lapse was an error of judgement in failing to provide him with a degree of relief from guilt, that "sufficiently illustrated the link between (his) Aboriginal heritage and the reason for a reduction of his moral blameworthiness in relation to the offence". The report outlined some factors such as his attempt at suicide at age 17, his diagnosis of Fetal Alcohol Spectrum Disorder, his dislocation from Aboriginal people and consequent struggle with cultural identity, and his experience of racism, bullying and racial profiling.

The joint recommended sentence of two years' probation was therefore imposed.

An appeal court has found that a judge mistakenly failed to consider the Cree background of a drug trafficker who had been taken from his Manitoba parents as an infant and raised by a non-Aboriginal family on Prince Edward Island.  File Photo

The entire case reflecting a circuitous puzzle of this young man's journey to unfortunate life choices. To begin with it is clear enough that child welfare authorities in Manitoba removed the child at birth from his parents for a reason; drug dependency that physiologically impacted the baby that matured into this young man who, separated by concern over his welfare from his parents, saw him return full circle to a social culture of utter dysfunction despite his innoculation by upbringing in another culture.

There are many physically identifiable ethnic groups that suffer discrimination, whose children are subject in their formative years to alienation from mass society, subjected to racial profiling, the knowledge of their ethnic group's struggle to make their place in a society that preferred to disadvantage  them, and living under the burden of a historical mass atrocity that meant to exterminate them entirely through a concerted, planned and well executed genocide.

Their offspring do not necessarily turn in volumes far in excess of their relative numbers in society, to crime. And nor are those that do, excused by their own society, much less given pardonable assists by the greater society of nations who view them as incapable of fending for themselves, without the pitying assistance of those that can.

The decision added: "A well-informed member of the public, armed with the knowledge of all of the circumstances of the offence and offender, as well as the systemic factors related to Gladue considerations, would not conclude the joint submission represented a breakdown of the effective operation of the criminal justice system."

Goodness, what a grand, sweeping statement.... Equality of outcome under the law?