And you can bank on it »« When the rug is pulled

Watch for flying pigs

Shit’s been heavy recently. I think it’s maybe time to lighten things up with another ‘good news’ week.

I’ve talked before about my crush on Chief Justice Beverly McLachlin. I really don’t want that to be construed in a disrespectful way, but there simply is no other way to express my fanboy admiration for pretty much every aspect of her legal mind. If I could, I would take her brain out for a nice dinner, maybe go dancing, walk it to the door, shake hands and walk home feeling really good about myself. I have never made a study of the law, but I do have a pretty clear idea of what fairness and justice look like, and every decision I’ve seen come from Justice McLachlin’s court have been more or less in lockstep with those ideas.

Those of you who read last month’s series on Black History know that the central thesis of my exploration of the facts of history was that we can and should use those facts to essentially chart a forward course. We can avoid repeating mistakes and learn from our failures as much as our successes in planning immigration and social policy, and in dealing with each other as countrymen who do not necessarily share a land of origin. The principle is equally valid in understanding not only broad social phenomena, but personal and interpersonal issues as well. At least I think so.

And so, apparently, does the McLachlin Supreme Court:

The Supreme Court of Canada has issued an iron-clad edict that sentencing judges must search out lenient or creative sentences for aboriginal offenders that recognize the oppressive cultural conditions many have grown up with.

The court said that some judges have mistakenly shied away from probing the historical circumstances of aboriginal offenders. It said the result is that the promise of a 1998 decision, Regina v Gladue, that mandated distinctive treatment for aboriginal offenders based on sensitivity to their history has not been realized; prisons remain packed with a disproportionate number of aboriginal inmates.


Friday’s rulings concerned the cases of two Inuk men with a history of grave substance abuse and violent offences. The decisions were greeted enthusiastically in the aboriginal community, where disappointment has grown in the years since the Gladue ruling. The cases had invited the court to take stock of whether the Gladue decision has had the desired effect.

Jonathan Rudin, program director of Aboriginal Legal Services of Toronto, said the decisions are at least as exciting as the Gladue ruling itself, given how courts have been backsliding from the principles it espoused.

I have to say that a) I had no idea that the Gladue decision even existed, and b) I never thought I’d see the day when the Supreme Court of a major country ruled (in a 6-1 decision no less) that judges could be punished for failing to uphold what is essentially a race-based program of equalization. Considering the problems Canada faces in its prisons, especially in light of the new crime bill, we cannot simply maintain the status quo unless we want to see the problem getting worse.

The Supreme Court seems to understand that justice, true justice, cannot simply treat all who walk into the doors of a courtroom as though they came from identical circumstances. Generations of broken promises, institutional neglect, societal marginalization and severe poverty have relegated First Nations Canadians to second- or third-class status. These problems do not exist in isolation, and neither is it sufficient to simply say “well then don’t commit a crime”. This kind of simplistic response to a complex problem only serves to reinforce the system that creates the problems in the first place.

The ruling also seeks to prioritize culturally-appropriate rehabilitation efforts rather than simply providing longer prison sentences. It will be interesting to see how this ruling plays out as the Omnibus Crime Bill comes into effect, removing any ability for judges to exercise judicial discretion when sentencing for certain crimes. As in most places, if a law passed by Parliament is in conflict with the Supreme Court, it is the law that must change. Often this is accomplished by removing certain portions of the law (rather than invalidating the entire bill), but this ruling may in fact mitigate some of the damage that Bill C-10 will undoubtedly do to Aboriginal populations across the country.

So you want to see what makes my jeans particular creamy?

Judge LeBel said that special “Gladue reports” should be prepared for all aboriginal offenders that specify details of their backgrounds “When sentencing an aboriginal offender, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and, of course, higher levels of incarceration for aboriginal peoples,” he said.

An animated .gif of Bill Cosby seeming to enjoy himself a great deal

Yup. He hits all my good spots in one paragraph. Canada’s Supreme Court has said that treating everyone “equally” is not nearly so important as treating everyone judiciously. This means we have to recognize the hole we’ve dug for ourselves when it comes to racial inequalities. It means we must face up to our own history and make amends, and until that happens the courts will be forced to put a thumb on the scales in an attempt to mitigate the damage that our systemic racism inflicts on our society.

Of course, if they were interested in being logically consistent, the “race realist” trolls of the internet would say that since the courts have decided to be ‘unfair’, the only way to make sure that white people and Aboriginal people get the same treatment is to equalize opportunity and access between the two groups. If they reached that conclusion, they’d have a lot of company from the anti-racists and Aboriginal Rights activists who have been saying exactly the same thing for decades.

But we’ve already had one miraculous development today. Let’s not push our luck.

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