It beguiles. It combozzles. It sometimes enrages.

But the fact of the matter is this: It’s the law of the land that aboriginal offenders are to receive special consideration when being sentenced.

(Note, please, the intentional use of the word *consideration* — which, loosely, means to ‘think about’ in this context, not to confer a benefit, reward, or as Gladue is often dumbed down to: ‘A race-based discount.’

“Gladue” principles and the application of same in criminal courts are hands down one of the most controversial features of the Canadian justice system in terms of public acceptance and understanding of why they exist.

But I won’t get into all that today. I just finally in the last few weeks came across a Manitoba judge who explains what this all means so clearly and concisely — in 156 words no less —  that I wanted to share it as a reference to readers, other interested parties and to myself for the future.

In the last two weeks, I’ve heard provincial court Judge Dale Schille use variants of the same explanation when giving reasons on sentencing.

Part of what Schille says it is a direct lift from the recent fundamental Supreme Court decision in R v. Ipeelee, which goes exactly like this:

“Canadian criminal law is based on the premise that criminal liability only follows from voluntary conduct. Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options for positive development. While this rarely — if ever — attains a level where one could properly say that their actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moral culpability.”

It appears from this point, the judge puts his own stamp on the issue:

“It is clear from that articulation that 718.2(e) seeks to recognize that there exists residual effects stemming from the historical mistreatment of the aboriginal population. The reality is that that treatment has disadvantaged aboriginal people in a number of ways including: decreased levels of education, lessened opportunities for employment, higher frequencies of violence and substance abuse when compared to the non-aboriginal population. All of these factors impact or detract from the moral blameworthiness of the aboriginal offender.”

When you stop to think about it, it explains a lot of things quite nicely, and in short order.

For your attention.


[Edit: 7:30 p.m. — minor tweaks, nothing more]

10 thoughts on “Gladue: ‘the why’ in 156 words

  1. Thanks for this. I’ve tried to explain it when people I’ve known say “they have choices,” as “they don’t have the same choices that you and I do.” This is better of course.

  2. It’s based on race. Ergo, it’s racist.

    You’re either equal before the law or not. If you want equality, you don’t get preferential treatment nor discriminatory treatment.

  3. Do any other races get the benefit of having a Gladue decision?

    Aboriginals are a race. So just because no one is saying that Aboriginals are “superior” in this ruling, it’s not racist? If it’s not racist, it surely is not equality.

    Is that kind of like saying that those of African descent can hate Caucasians because of the colour of their skin as it’s justified due to black slavery and racism against them?

    It’s a double standard. No other race or religion gets this treatment in a court of law.

    1. I accept your views, and they’re nothing that haven’t been expressed before. I just don’t happen to agree with them. *every* accused person white, black, brown or otherwise gets individual consideration to their particular circumstances at time of sentencing.

      Every accused person gets the same equal procedural treatment from the criminal justice system before and up to the point guilt or innocence is determined, and then sentencing turns to an individualized process. That’s equality before the law.

  4. I would have to disagree that every accused, besides Aboriginal offenders, get individual consideration.

    It’s high time to let go of the past and stop playing the victim.

    I don’t find it equal before the law that an offender with an Aboriginal background gets special consideration over anyone else. What if the victim of that offender is not Aboriginal?

    And really, isn’t about the rights of the victim(s)?

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