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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  1. says

    It took me some hours before I could stop and give this piece the attention it deserves. Holy shit though I may have a brain crush on this justice as well. This was just the awesomest news.

  2. RdeG says

    All that I’ve read about this decision is the article on CBC, but I’m deeply skeptical that affirmative action in criminal justice is a good idea.

    Let’s say that I’m a 23 year old man from northern Ontario who was abused by his alcoholic father and raped by his parish priest as a child, and then held up a 7-11 for a bag of Skittles and a can of iced tea. Why should the fact that I’m afro-Canadian, euro-Canadian, or native-Canadian make any difference to my sentence?

    What if I’m native-Canadian, but the child of two generations of middle-class, university-educated native-Canadians? Why should I still get away with a lighter sentence than the white kid from the dysfunctional family?

    What if I’m a recent immigrant whose cultural history shows a pattern of problems similar to those faced by native-Canadians; should I receive a similarly lenient sentence?

    Are you suggesting that because the past legal system has treated native-Canadians as second-class citizens (at best…) and continues to encourage them to be second-class citizens, that they should also receive second-class sentences? If so, then at what point will we be able to declare that they’re no longer second-class citizens and deserve the same criminal sentences as other people? Do afro-Canadians and asio-Canadians also deserve leniency due to their historical mistreatment at the hands of euro-Canadians, or do we declare that those groups are no longer sufficiently second-class to deserve them?

    To me, it seems that the correct approach to dealing with “higher levels of incarceration for aboriginal peoples” is to address the societal problems that cause native-Canadians to commit crimes at higher rates than other demographic groups (isolation, lack of educational and employment opportunities, etc) and address factors that cause native-Canadians to be punished more severely other demographic groups, rather than explicitly require that native-Canadians receive lighter sentences in light of past history. Sure euro-Canadians and other groups have systematically screwed over native-Canadians for the past 10+ generations, but I don’t see how this is a good way to make amends.

    The traditional personification of “justice” is a blindfolded woman with a balance. This decision seems to be removing the blindfold.

  3. says

    I’ve got a bunch of posts about affirmative action programs. I suggest you try reading some of them – they will answer most of the points you’ve articulated here.

  4. davroslives says

    I used to be one of those people who picked at stuff like this. I’ve always been liberal, but there was a point in my life when, for some reason, I was annoyingly pedantic. I can see it now, but at the time, I thought of myself as supremely logical and rational. “It’s simple!” I would say, “just ignore race/gender/whatever on college applications/job applications/sentencing/whatever! Of course racism/sexism exists, but doing that completely levels the playing field.”

    It’s just so knee-jerk American (or Canadian, as the case may be) to reduce things to a binary, and ignore everything else. I’m extremely glad that I’ve gotten more perspective on issues like this. My deconversion from Christianity helped; after I was an atheist, I was forced to look at what I had written as a Christian and saw all the logical fallacies therein, even though I was “logical and rational” at the time, as far as I was concerned. Confronting yourself on privilege and preconceptions is VERY helpful.

  5. crowepps says

    I think it’s more like finally recognizing how hypocritical it was to continue to pretend that Justice was actually wearing a blindfold when the relative arrest rates, convictions and sentences being so clearly associated with the color and race of the accused made it obvious she was peeking underneath the whole time.

  6. says

    Jesus fucking fictional Christ. A bag of Skittles and a can of iced tea were what Trayvon Martin had in his pocket when he was killed, as I’m sure you well know. And you have the nerve to associate those items with “holding up a 7-11”?

    Unless there’s something I’m missing about that pair of items being a really common choice, this is an extraordinarily racist way to start off a passage. I’m not even sure whether it was conscious.

  7. RdeG says

    I apologize for being insensitive. I was trying to suggest a relatively minor, stupid crime, but in hindsight, that particular detail was inappropriate given current events.

  8. 'Tis Himself, OM says

    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.

    Go Canada!

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