indigenouslaw.usask.ca
I’m quoting myself from Post #35 in this thread due to earlier mention of the Gladeau Principles in sentencing:
indigenouslaw.usask.ca
Sorry in advance for the long winded quote of the link below:
In a speech to the Canadian Bar Association last week, Justice Minister David Lametti
said his government is “seriously considering” bail reform, and that he looks forward to discussing it with his provincial counterparts at a forthcoming meeting. In a recent letter,
all 13 provincial and territorial premiers supported implementing a “reverse onus” provision on bail for defendants charged with certain gun crimes: Instead of the Crown having to prove the case against bail, the defendant would have to prove a case for it.
The impetus for the premiers’ letter was the murder of Ontario Provincial Police Constable Grzegorz Pierzchala in December, allegedly by 25-year-old Randall McKenzie, whose criminal record would turn even many bleeding hearts to stone: assaulting girlfriends, assaulting a peace officer, armed robbery, stabbing a fellow inmate in prison and various other weapons and assault charges. On releasing him from prison in 2021, a Parole Board correctly deemed him a high risk to reoffend.
Later that year, he allegedly attacked his ex-girlfriend (punched her in the head), her new partner (stabbed twice) and two children (menaced them in the family vehicle). One of those kids was his own. He was found with a handgun he was prohibited to own and, before being arrested, he managed to headbutt a police officer. He was initially denied bail for these alleged offences, but after seven months, he was ordered released on supposedly strict terms including electronic monitoring.
When this news broke, the question on everyone’s lips was “what the hell was he doing out?”
Thanks to the Globe and Mail, we now know the answer: Because he was Indigenous.
We can’t really have a serious discussion about bail reform without discussing that. But I suspect Lametti, and several of his reconciliation-oriented provincial counterparts, would rather climb under a table and hide.
If Randall McKenzie hadn't been Indigenous, he wouldn't have been out. For Canada's justice ministers, it's a can of worms
apple.news
The Globe’s transcript of McKenzie’s bail hearing shows a judge who clearly didn’t want to let McKenzie out, but felt he had no choice. “He’s got a record, this was a gun case, this was a lot of violence in the middle of the daylight with his young son right there, a gun was involved (and) he has breached (bail) conditions in the past,” Justice Harrison Arrell told the Crown prosecutor, sympathetically.
“I don’t mind telling you it’s a very iffy case,” he concluded, “but I do feel my obligation is something I can’t ignore — (McKenzie) being a status Aboriginal.”
{Gladue principles are
a way for the judge to consider the unique circumstances (experiences) of Indigenous peoples. These unique circumstances include the challenges of colonization you, your family, and community faced and resisted as Indigenous people, and continue to affect you today.}
The obligation in question stems from a 1995 amendment to the Criminal Code that added a new “sentencing principle”: Section 718.2(e) says “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.” The goal was to reduce the overrepresentation of Indigenous people in Canada’s prisons and jails.
The idea behind this, though well intentioned to purchase the support of Reservations in….wait for it…Quebec…to sell the idea that “The Chrétien Canadian Federal Government Has Got Your Backs!” Due to this:
en.wikipedia.org
…But that’s a different story I guess. Anyway:
In R v. Gladue, and the less famous R v. Ipeelee, the Supreme Court later interpreted “
should” to mean “
MUST.” And in the years since, courts have extended the “Gladue principles” to the granting of bail.
I argued recently that the best comprehensive solution to Canada’s bail conundrum is to light a giant fire under this country’s glacial justice system. Locking people up before they’ve been found guilty should always give us pause, but if it’s a few weeks rather than months on end, it’s much less ethically fraught. Still, special treatment for some groups of accused offenders would be baked in, and that’s pretty darned fraught as well.
(In maintaining that people are naturally equal, liberals assume they all possess the same right to liberty. In other words, no one is inherently entitled to enjoy the benefits of liberal society more than anyone else, and all people are equal subjects before the law)
en.wikipedia.org
Setting aside basic notions of fairness, the most obvious problem concerns potential victims.
Under the Criminal Code, “protection or safety of the public, including any victim or witness” is a stated reason for denying bail. And while McKenzie’s victim was (
just?) a white police officer, it was far more predictable, given his record, that he would have meted out violence on members of his own Indigenous community — he was a resident of the Mississaugas of the Credit First Nation, according to police —
if not his own family…again.
Indeed, the “Gladue principles” are named after Cree-Métis woman Jamie Tanis Gladue, who stabbed her common-law husband to death in 1995 in Nanaimo, B.C.
You very rarely hear the victim’s name: Reuben Beaver, also Cree. Apparently Ruben was boinking his ol’Lady’s sister (also Cree), & she (Jamie) accused him, & and he didn’t deny it, and she (Gladeau) was drunk…. So inevitably, she stabbed in the chest with a large knife while he was running away from her. But again, that is a different story…anyway:
There was much outrage in 2015 when the RCMP clumsily released statistics suggesting 70 per cent of missing and murdered Indigenous women were victims of people in their own community, but it only stood to reason: We’re far more likely to wind up victims of violence thanks to people we know than thanks to strangers.
There are those who believe pretty much every Indigenous offender and every crime he or she commits is motivated to some extent by the multi-generational scars of “colonialism” — even when the victims are themselves Indigenous. There are those who believe that’s bunkum. There are many people, like me, in the middle.
To my mind it’s obvious there are Canadians of all races whose upbringings were essentially engraved invitations to future criminality. I think that absolutely speaks to their moral culpability, and that the justice system should take that into account.
But, in addition to ensuring the accused show up for their court dates and the protection of public safety, the Criminal Code provides another criterion for denying bail: “If the detention is necessary to maintain confidence in the administration of justice.”
(Justin Morphed the Libs to the Left to Out-NDP the NDP into Irrelevance, but now there’s Poilievre with the Conservatives pointing that out, so how can the Justinites show their ‘Law&Order’ flex while still appeasing Jagmeet?)
Judges have some downright psychedelic ideas as to what instills confidence in Canadians and what doesn’t.
Justice ministers (of the correct opinion & gender unlike Wilson-Raybould) however, tend to be more clear-eyed. In many ways they picked an obvious tragedy on which to build their case for reform — but they also risk opening a Costco-sized can of worms.