The Supreme Court's Gladue decision is 13 years old and is as wrong today as it was then. Rendered by the best of Canadian legal minds, the decision is not only wrong-headed, it's been ineffective.
The groundbreaking ruling was hailed as a way to reduce the over-representation of aboriginal people in jail. But instead of taking measures to reduce the amount of crime committed by aboriginal offenders, the Supreme Court took a simpler route -- some suggest an embarrassingly simple route.
It tried to reduce jailed aboriginal numbers to politically acceptable levels by deflecting away from personal responsibility and focusing on the plight and "systemic or background factors which may have influenced (aboriginal people) to engage in criminal conduct." The message was clear: If the offender is aboriginal, find alternatives to jail.
The court's initiative hasn't panned out. The rate of jailed aboriginal offenders remains out of whack with their total population. A recent count says that only four per cent of Canadians are aboriginal, yet they make up 25 per cent of the prison population.
There are other problems, too.
Many justice players don't like the "Gladue discount." It's viewed as distasteful in a system where justice is supposed to be blind and consequences meted out fairly with regard to the act, not the identity of the accused or victim.
The Gladue slope is slippery and creates a class of second-class victims not entitled to the same brand of justice other Canadian victims might reasonably expect if the offender were non-native. (And it's worth noting that many victims of aboriginal offenders are also aboriginal.)
Over the Christmas holidays, one victim -- a white man -- was subjected to a cold, callous and brutal attack and became one of those second-class victims in an Ontario courtroom.
For years, a land dispute between the citizens of Caledonia, Ont., and some First Nations created an atmosphere of lawlessness that neither politicians nor cops could get a handle on. Violence, destruction, blockades with fictitious borders, demands and frustrations set the tone for all concerned.
Against a backdrop of struggle for power between native and mainstream Canada, Richard Smoke, from one of the nearby reserves, and a few of his buddies broke into an area home under construction. The Ontario court would later rule that the break-in had nothing to do with land claims, saying, "There was no necessity for this crime... it didn't advance any ideology or idea."
The owner of the property, Sam Gualtieri, 56, a hard-working family man, discovered the break-in as it unfolded and was set upon by Smoke, who attacked him with pieces of lumber, leaving him on the floor a bloody, broken and brain-damaged mess.
The Superior Court judge hearing the case convicted Smoke of aggravated assault, calling it "senseless and vicious" and "just a notch below culpable homicide." That's the serious end of the most serious assault charge in the Criminal Code, the kind that carries a potential 14-year federal prison sentence.
But in this case, Gladue became a key factor. The court ruling said there are too many aboriginal people in jail. Smoke's lawyer said her client had been affected by a culture of racism and had been damaged by the "intergenerational impacts" of residential schools (translation: someone in his family went to a residential school and the fallout continues to fester.)
The sentencing hearing was supposed to take part of a day, but stretched to three. The Crown, whose duty it is to be objective, hopelessly offered that six to eight years in prison was the appropriate sentence target.
But no. Taking into account the few months Smoke had spent in pre-trial custody -- and the Gladue decision -- this straightforward matter came to a very unsatisfying end, with the assailant being sentenced to just two years in a provincial jail.
The judge tried to convince whoever may have been listening that this was not a "get-out-of-jail-free" card. But, with early and statutory release provisions, that's exactly what it was.
Unable to function or work as he once did, Sam Gualtieri received second-class consideration as his life changed for the worse forever.
What has become clear in the last decade is that Gladue was a botched attempt at social engineering by technicians whose expertise lies in legal technicalities. Equally clear in this case was the devaluation of damage caused to Sam Gualtieri by Richard Smoke.
It all leaves questions that beg for answers. Did 13 years of Gladue make Smoke a better man? Will the few brief weeks that Richard Smoke spends in a provincial jail make him a better person? Has Gladue improved the lot of First Nations people? Is Canada a better place because of Gladue?
The smart money says "no" on all counts.
Robert Marshall is a retired
Winnipeg police detective.