Aboriginal people are another group that faces discrimination unlike blacks the Gladue reports are in place to ensure equity. The Gladue report is a report used in sentencing indigenous offenders ensuring that the court recognizes that Aboriginal people face racism and systemic discrimination in and out of the criminal law system. The Gladue report states that all judges when sentencing to consider the following “all available sanctions other than imprisonment that are reasonable in the circumstances, with particular attention to the circumstances of Aboriginal offenders.” This source gives judges to use caution when using sanctions outside of the mainstream prisons for aboriginal men and women. This right is protected in the criminal code under section 718.2 e. The way the report works is a report that Is made by Gladue caseworkers at the request of the judges, crown, or defense counsel. The reports contain information about the Aboriginals background, history on residential schools, child welfare removal, sexual or physical abuse, health issues, substance abuse and recommendations to the court on what an appropriate sentence would be.
The justice system has failed to properly sentence individuals and dismiss against individuals cases for years now, this where equity in sentencing comes in play. Equity is defined as the sentencing principle that similar crimes and similar criminals should be treated alike. Equity sentencing has a goal of increasing fairness, and the fact of the matter is that at every stage of the criminal justice system there are unfair arrests, excessive charging decisions, and desperate sentences from judges. Whether it is based on race, religion or sexual orientation,studies have that prison sentences are for the these groups, and mistreated or face harsher penalties.
I would first like to present background information on the on the comparison of black and whites being sentenced. A study done by the Sentencing Commission found that black males who commit the same crime as a white male receive 19.1 % longer prison time, which means that judges are less likely to revise sentences downward for a black offender than a white offender. When sentencing judges look at three factors which are blameworthiness meaning the offenders level of accountability, danger to the community which is means how damaging the offense was to the community, and practical constraints and consequences which are the factors like available space in prison or correctional costs (Albonetti, 1999).
Judges when sentencing should take in all factors including if the offender has kids or not, how they grew up, how they were raised, and other additional background information before making a decision. Using equity would provide fairness in sentencing making sure other factors such as race, religion or sexual orientation won’t interfere with the outcome of the trial. On rect example is the Morris .A case in 2013 showed an example of equity in sentencing when a man by the name Kevin Morris was charged for possession of a loaded handgun in Toronto. The prosecution suggested that Kevin should face 4 to 5 years but Defence lawyers argued that the sentence should be one year before credit was given for charter breaches. The judge agreed with the defense and reduced the sentence to one year instead of 15 months. The judge wrote “Not handed out blindly or excessively. Based only on fear. But one that can begin to address, one small step at a time, the problem of the disproportionate incarceration of black offenders,” (Nakatsuru,2018) Morris had no criminal record and he was exposed to a violent upbringing as a child, he had been attacked twice, he was stabbed and in critical conditions, as well as he was diagnosed with Post-traumatic stress disorder as well. Judge Nakatsuru also added that these actions were a product of oppression, despair, and disadvantage, as well as he is unlikely to
turn his life around so easily if he wanted to. Morris’s defense Faizal Mariza also added that “Too often black offenders are sentenced more harshly due to incomplete information. It is the duty of the defense and the Crown to ensure the judge has as much relevant information as possible before deciding how much jail to impose” (Mariza, 2018).
Judge Nakatsuru had almost the same case in April 2018 where a man named Jamal Jackson was arrested for possession of a loaded weapon as well. Jackson’s defense lawyers argued that there should be a way of sentencing Black offenders like the Gladue report which is used to when sentence indigenous offenders. Jackson’s lawyer provided the judge with anti-Black racism and Impact of Race and Cultural Assessment done by social workers in Halifax, as well as interviews with Jackson and his family about his troubled childhood and the racism experienced by Black people living in Nova Scotia. The prosecution requested a sentence from 7 to 9 years by the judge sentenced Jackson to two years and half years. The judge explained this decision by adding there’s a number of segments of the ruling that have moved the needle forward, in particular, the acknowledgment of the systemic legacy of discrimination against African Canadians.”.Jackson’s case is a prefect example of how background information should be a factor in sentencing to ensure that equity is met.
Judges must take these factors into account when sentencing, it is not optional. Many have argued that these reports could be used as a free get out of jail card, but it’s sole purpose is to provide judges with the opportunity to consider the offender’s background and determine how to help the offender overcome their problems. What makes difficult upbringings of aboriginals oppose to a non-aboriginal is the generation of trauma that aboriginals who attended residential schools, This specific example demonstrates why Gladue is not just a get out of jail card. In 2012 a 47-year-old six nations man was arrested for sexual abuse and physical abuse on to two native boys. The Gladue report was used and indicated that the man had no troubled upbringing, no report of sexual or physical abuse, and no family attendance at residential schools, therefore he was sentenced to nine years. This shows that the Glaudu report isn’t some flaw in the justice system is used to ensure equity among all Canadians.
An effective method of ensuring equity in sentencing is using restorative justice promotes equity in the community. Restorative justice is a form of criminal justice that is based on the principle that criminal behavior not only harms the victim but the community and the offender as well. This system responds to crimes by addressing the crime and the harm it caused the victim, holding the offender accountable and trying to restore the relationship between the community. The overall goal of the restorative justice system is to first restore the losses suffered by the victim’s, as well to repair the relationship between the victims and offenders and to reintegrate the offenders back into their respective communities. This system is able to reduce the likelihood of reoffending by reintegrating the offender back in other communities, it offers a better alternative than standard sentencing, and involving the community members in order to better respond and reduce crime. Many have argued that the victim should not associate with the offender, but this provides an opportunity to confront the offender and address the harm they caused them and families of victims also benefit by knowing why their family members were victimized, as well as a step to repair the harm caused by the offender. A study done in Northern Ireland found that overall both victims and offenders report high satisfaction rates of 85% to 90% (Chapman, 2018). Restorative justice is a great alternative that prioritizes retribution, rehabilitation and the protection of the public. It would be a highly more effective method to address the harm done to the victims, the community and provide an opportunity for the offender to demonstrate contrition for their actions. A great example of this system having a positive outcome is when on February 20, 2010, a couple riding their motorcycle to a friends birthday when a Honda suddenly made an illegal turn into their lane and slammed into the Honda killing them both. The Honda was reported stolen earlier that day by a 25-year-old man who had a history of substance abuse and a long criminal record. He was found guilty of seven counts including two counts of negligence causing death. The sister of the victim was angry when offender barely apologized in court for his wrongdoing, she needed closure so she vouched for a meeting with the offender through the restorative justice system. For five hours straight her and family members came up with questions, he began to open up and talk about the details leading up the incident. The offender broke down sobbing saying “I don’t know how you guys can even look at me. I don’t know how you can talk to me. If it was someone who’d killed my mother I wouldn’t be able to do this,” (Quan, 2015). This provided an opportunity for the offender to see the impact of meeting the families has, as well as seeing their pain and receiving their forgiveness. Furthermore, the same offender is currently is finishing a course at B.C. Institute of Technology and searching for work. Restorative justice differs from traditional legal systems, the legal systems are crimes against the state as in R.V., R is refers to the crowne versus someone, but with restorative authority the victim is given rights unlike the traditional way.
Equity in sentencing provides proper and fair sentencing, every case should not be looked at same because everyone is different and it’s not fair for someone with a troubled past they could not control be on the same level as someone who doesn’t. Equity sentencing the fairest way of going about sentencing, it is the reason why the Gladue report and the Restorative justice system is successful in creating fairness and justice.
- “Benefits of Restorative Justice.” The John Howard Society of Canada, 7 Nov. 2018, johnhoward.ca/blog/benefits-restorative-justice/.
- “Blog.” Restorative Justice, www.restorativepartners.org/blog/benefits-of-restorative-justice-programs.php.
- Ibbotson, Heather, and Heather Ibbotson. “Gladue Reports: Boon or Bane?” Brantford Expositor, 8 Apr. 2013, www.brantfordexpositor.ca/2013/04/08/gladue-reports-boon-or-bane/wcm/fd767e42-6e86-de89-0ec4-b073d53534c5.
- Karmer, John H, and Laura Nuss. “Defining Determinacy: Components of the Sentencing Process Ensuring Equity and Release Certainty.” Taylor and Francis Online, 20 Aug. 2006, www.tandfonline.com/doi/abs/10.1080/07418828400088031?journalCode=rjqy20.
- Reserved., . All Rights. “How Restorative Justice Changed a Grieving Family’s Opinion of a Hit-and-Run Driver.” Canada.com, 2014. All Rights Reserved., 8 Feb. 2015, o.canada.com/news/national/how-restorative-justice-changed-a-grieving-familys-opinion-of-a-hit-and-run-driver.