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]