Convictions of Adult Offenders in Canada On Sept. 16, 1995, after fatally stabbing her husband as he slept,
19-year-old Jamie Tanis Gladue shrieked: "I got you...bastard." In
addition to getting her husband, however, Mr. Gladue disregarded the
rule of law.
In the course of confirming Ms. Gladue's sentence of three years for
manslaughter -- only six months of which were served behind bars --
the Supreme Court of Canada scolded the trial judge for not giving due
attention to the killer's "Indianness." This ruling follows the
guidelines within section 718.2(e) of the Criminal Code, stating that
judges must pay "particular attention to the circumstances of
Thus Canada's top court gave its assent to legal prejudice by allowing
the same offence to be punished differently depending on the ethnicity
of the offender. The court justified this extraordinary decision, in
effect, by denouncing judges across the country for their
"over-reliance (sic) on incarceration" for aboriginal offenders.
For instance, the Court pointed out that a male treaty Indian is 25
times as likely to be incarcerated in a provincial jail as a
non-native and that aboriginals, though only 3% of the Canadian
population, make up almost 15% of federal prisoners. The extent of
native incarceration, declared the court, was "so stark and appalling
that the magnitude of the problem can be neither understood nor
Alas, the court's reasoning was equally stark and appalling. After
all, the "overrepresentation" of natives in the criminal justice
system hardly proves systemic racism. Women make up less than 2% of
Canada's prison population. Yet no one argues that is because men
suffer from systemic sexism in the criminal justice system. Men commit
disproportionately more crimes.
Yet the court did not even examine whether natives were more or less
likely than non-natives to commit crimes -- surely the first step in
any serious inquiry. As it happens, if the court had tried to discover
this, it would have had great difficulty. The federal Department of
Justice has conspicuously dodged this politically explosive question
-- while spending millions of dollars on studies documenting abuses
that befall aboriginals once inside the criminal justice system.
What little data exist (which the court did not consider) show that
rates of incarceration for aboriginals may not be out of line with
their rates of crime. In 1995, the Canadian Centre for Justice
Statistics completed a three-city study on police-reported crime. It
found that natives were nearly five times as likely as non-natives to
commit a crime in Calgary; 10.5...