To see why, let’s start with some facts:
Over the last five years, the number of aboriginal inmates in federal penitentiaries has increased by 43 per cent.
While aboriginal people number only four per cent of the population, they make up 23 per cent of the inmates in federal institutions.
In 2010-11, aboriginal women made up 32 per cent of all female federal prisoners, an increase of 85 per cent in the last ten years.
There are only two ways to explain these shocking numbers: either something is genetically or culturally wrong with aboriginal peoples or something is wrong with the justice system. As the problem is neither genes nor culture, it must be the system. So what’s going on?
The basic idea behind our system of justice is that people are responsible for their actions, but their choices are shaped by the circumstances around them. For example, a woman who shoots her husband because he has abused her for decades is still responsible for her actions, but a judge may treat her actions very differently from those of a woman who shoots her husband merely because she detests him.
The courts’ job is to consider the circumstances around a case, then weigh them against the severity of the crime. Over the years, this has come to include a wide range of factors, from psychological problems to socio-economic ones such as poverty, literacy and family violence.
Many people feel the system has gone too far. According to some, too many criminals are getting off with little more than a slap on the wrist. Victims of crime, meanwhile, feel the system has failed them.
There are real questions here and they need to be addressed. A better balance must be struck between the interpretation of circumstances on one hand and sentencing on the other. So what is the government’s plan?
The crime agenda resets this balance by shifting the emphasis off circumstances and onto the crime. In this view, what really matters is that you did it.
Thus the ‘mandatory minimum’ — an automatic minimum sentence for a crime — is the government’s new gold-standard for justice because it all but eliminates a judge’s room for discrimination.
As Gary Mason wrote in the Globe and Mail last week: “The Safe Streets Act introduced new mandatory minimum sentences for some offences and increases existing minimum penalties in other areas … (According to some experts) the act also undermines a section of the Criminal Code that asks judges to consider all possible options for sentencing before choosing prison, especially for aboriginal people.”
So the Harper government believes this approach will make the administration of justice fairer. Will it?
Sapers’ numbers tell a very different story. By almost every measure — income, health, education, addiction, suicide — aboriginal people are the most disadvantaged group in our society.
Now we find that the system also assigns them an outrageous share of criminal punishment. If we ask why, the only available answer is that they broke the law. But this hardly settles things. The obvious next question is whether the law has been applied fairly.
Clearly, it has not. As Sapers’ report shows, when it comes to aboriginal people the system — far from showing lenience — singles them out for punishment. But how?
The answer lies in “sameness.” In the eyes of the legal system, if aboriginal people break the law, they should be judged the same way as anyone else. The system therefore treats the often tragic circumstances surrounding their crimes as largely irrelevant to their sentence — what matters is that they did it.
But this is perverse. Aboriginal offenders are not the same: their circumstances are often profoundly different and deeply intertwined with their actions. To deny this is to deny the obvious. Any serious effort to improve the justice system must start from this premise.
Obviously, then, the crime agenda will do nothing to reverse Sapers’ numbers. On the contrary, it will make things worse. Tying sentencing to the principle that ‘If you broke the law, you should be behind bars’ takes away the only tool judges have to fight this kind of systemic discrimination.
So, while the government is right that everyone is equal before the law, it is wrong to think this means everyone should be treated the same. Justice should be blind — not indifferent.
What the courts really need are more sophisticated tools for interpreting and responding to different kinds of circumstances. What the government has proposed is an antiquated view of justice that says people who do bad things must pay.
This will not lead to a fairer system. On the contrary, it excuses the courts, the government and each of us from our responsibility to forge the tools we need to deal fairly and effectively with this kind of diversity. Canadians, I believe, expect nothing less.
Original Article
Source: ipolitics.ca
Author: Don Lenihan
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