Top court appalled as natives fill Canada's jails
Judges must stop sending so many aboriginals to prison, court declares
Saturday, April 24, 1999KIRK MAKIN
Justice Reporter, The Globe and Mail
Prison has become a way of life for an appalling number of aboriginal people and constitutes a national disgrace, the Supreme Court said in a major decision yesterday.
The court urged all judges to make use of special sentencing provisions for aboriginal offenders, saying the number of natives behind bars represents a full-blown crisis in a prison system as ineffective as it is bloated.
Writing in vivid terms about a case in which a native woman killed her husband, the court said the conscience of Canadians ought to be shocked by the rate at which aboriginals are tossed behind bars.
"In recent years, sentences of imprisonment in Canada have increased at an alarming rate," it said. "If overreliance on incarceration is a problem with the general population, it is of much greater concern in the sentencing of aboriginal Canadians."
The defendant in yesterday's case, Jamie Tanis Gladue, stabbed her husband to death during a drinking binge on Sept. 16, 1995, held to celebrate her 19th birthday. Five months pregnant at the time, she suspected that her husband, Reuben Beaver, had been sleeping with her sister.
Witnesses said that as Mr. Beaver lay dying in the condominium they shared in Nanaimo, B.C., his wife jumped up and down in triumph, yelling: "I got you, you bastard."
Sentenced to three years for manslaughter, Ms. Gladue appealed on the basis that the trial judge did not adequately consider aboriginal circumstances in her case. The Crown said the sentence was, if anything, too lenient.
The Supreme Court left the sentence intact, noting Ms. Gladue was released in six months on an electronic monitoring program. While the trial judge should have given more consideration to her aboriginal circumstances, the court said, the sentence was reasonable.
In its 7-0 judgment, the court said aboriginals are imprisoned in grossly disproportionate numbers. A male treaty Indian is 25 times as likely to be admitted to a provincial jail than a non-native, and a female treaty Indian is 131 times as likely.
This reality, the court said, is "so stark and appalling that the magnitude of the problem can be neither understood nor interpreted away.
"Even more disturbing, the disproportionality is growing," it added. "It is realistic to expect that absent radical change, the problem will intensify due to the higher birth rate in native communities."
The judgment was the first to interpret legislation passed by Parliament in 1996 to permit judges to pay particular attention to the "circumstances" of aboriginal offenders during sentencing.
Writing for the majority, Mr. Justice Frank Iacobucci and Mr. Justice Peter Cory said various government inquiries in past years have concluded that the justice system is failing aboriginals on a crushing scale. "These findings cry out for recognition of the magnitude and gravity of the problem, and for responses to alleviate it," they said.
The court catalogued poverty, substance abuse and lack of educational and employment opportunities as some of the factors behind the crisis.
It said every attempt should be taken to divert aboriginals away from prison and toward alternatives, especially those connected with their heritage. It said these may range from aboriginal sentencing and healing circles to restitution and aboriginal community council projects.
These alternatives are not necessarily "lighter" punishment than prison, the court argued, since taking responsibility and facing one's community can be more frightening.
The court emphasized that not all native communities view justice identically, and some will be as likely as non-natives to believe in the principles of denunciation and deterrence.
Nor, the court said, should aboriginal status act as an automatic get-out-of-jail-free card. It said that the more violent and serious the offence, the more likely it is that native and non-native alike will endorse similar sanctions.
The court instructed trial judges to seek information on an offender's life as well as alternatives to jail in their local regions. Appeal judges should not hesitate to admit fresh evidence if that would be helpful, it added.
The court condemned prison as having failed society as a whole, not only natives. It noted that with an incarceration rate of 130 inmates per 100,000, Canada ranks second or third among industrialized countries.
The court said prison does not rehabilitate, costs horrendous amounts of money, does little to deter crime and may even make individuals a greater danger to society. Equally bad, it said, the unpredictability of sentencing means it delivers uneven retribution.
"Most offenders are neither violent nor dangerous," the judges said. "Their behaviour is not likely to be improved by the prison experience."
Ms. Gladue was born and raised in McLennan, Alta. Her mother was a Cree and her father Métis. She and Mr. Beaver had a child in 1995 and moved to Nanaimo. (A second child was born after Mr. Beaver's death. Ms Gladue named him Reuben Ambrose Beaver in memory of his father.)
Earlier on the evening of the killing, witnesses said, Ms. Gladue declared of her husband: "The next time he fools around on me, I'll kill him."
She later confronted Mr. Beaver outside a room in their shared condominium occupied by her sister, Tara Chalifoux. Mr. Beaver responded by hurling insults at his wife about being fat, ugly and sexually unappealing.
The couple continued the argument back in their room. Ms. Gladue suddenly grabbed a paring knife and stabbed Mr. Beaver in the shoulder. He ran the short distance back to Ms. Chalifoux's room with his wife in pursuit. As Mr. Beaver yelled at Ms. Chalifoux to let him in, Ms. Gladue stabbed him in the heart.
Before her sentencing, Ms. Gladue took counselling for alcohol and drug abuse as well as treatment for an hyperthyroid condition that caused her to have exaggerated emotional reactions.
FOR FULL TEXT OF JUDGMENT: http://www.lexum.umontreal.ca/csc-scc/en/pub/1999/vol1/html/1999scr1_0688.html (updated)