THE doctrine of equality before the law means that everyone is to be treated the same, regardless of title, wealth or political power. It means that the penalty for a crime should be the same for every citizen, all things being roughly equal.
The people of Waywayseecappo First Nation, however, would be justified in wondering if there is one law for them, and another for their leaders, after the band's chief avoided a jail sentence this week for his third drunk-driving conviction. Chief Murray Clearsky received a 30-day conditional sentence, including a requirement that he remain in his home under curfew except to attend to reserve business.
The Criminal Code carries a minimum penalty of 30 days in jail for a second drunk-driving offence, and 120 days for a third offence. Those are the penalties applied to the vast majority of drunk drivers. The Crown, however, can exercise discretion in cases that it feels are exceptional. In the case of Chief Clearsky, both the defence and Crown told court they saw no point in sending him to jail because the community needed his leadership during the H1N1 pandemic.
With respect to the learned judge, why not just postpone sentencing until the pandemic is over? Was there no one else on band council capable of managing the current crisis? Chief Clearsky is not indispensable (Rene Levesque famously said graveyards are full of indispensable people) and the court was wrong to treat him differently than others would have been under similar circumstances.
The chief, in fact, appears to have been treated lightly over the years by the courts. In 1983, he was fined for refusing to provide a breath sample, and again in 2004. Two years ago, he was stopped by police after he nearly crashed into another vehicle. His blood-alcohol level was twice the legal limit, a sign of gross contempt for the law. He's also been convicted for a weapon's offence.
By establishing minimum jail sentences for repeat offenders, Parliament has made it clear that the offence is reprehensible and not to be tolerated by the courts. It is one of the most serious offences in the Criminal Code.
Chief Clearsky has done the right thing by seeking help for his drinking problem and for recognizing that he failed his people. His insight into his own problems and responsibilities is commendable.The court's sentence, however, sends the wrong message, particularly for those who already mistrust the legal system. It says that there is one law for the rich and powerful, and one for those who are not.