Cory Morgan: Courts Should Sentence Based on the Crime, Not Race

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Commentary

Canadians are tired of reading news stories about violent, dangerous offenders receiving light jail sentences, if any at all. Demands have been made for tougher sentencing and bail reform, and Ottawa has responded with a criminal justice reform plan that may address some of the challenges in keeping dangerous offenders incarcerated.

However, the government pointedly overlooked one judicial policy that leads to the release of many dangerous offenders: a mandate from the Supreme Court of Canada in 1999 called the Gladue principles.

When reading of an offender being handed a light sentence or early release by a judge, there is often a reference to Gladue principles from the sentencing justice.

A Calgary man identified as RJM repeatedly raped and threatened to kill a 12-year-old girl. In sentencing last September, a judge reduced the sentence, saying, “But for his Gladue factors, I would have imposed the sentence sought by the Crown.” With time already served, RJM will be free to potentially victimize children again soon.

In Manitoba, Dean Richard Bell stabbed Calvin Chartrand to death in January 2024 in what the judge called an unprovoked attack. The judge then reduced his sentence, saying, “However, I believe that the Gladue factors relevant to this offender mitigate his moral culpability.”

Those are just a couple of recent examples of rulings in which the Gladue principles were applied. The principles have been applied in thousands of criminal cases since they were imposed upon criminal courts over 26 years ago. Gladue principles must be applied to anyone who identifies as indigenous, including status and non-status Indians, as well as those who identify as First Nations, Métis, and Inuit. Judges are expected to avoid sentencing anybody in those categories to jail whenever possible and to seek alternative methods of correction.

The principles are applied liberally. A violent criminal named Colin Umpherville had his initial sentence cut in half by the Saskatchewan Court of Appeal because he claimed his maternal great-grandfather was indigenous. He had no lived experience as an indigenous or Métis man, but his assertion was enough for the judge, who said: “Mr. Umpherville’s crimes are serious and called for a term of imprisonment. However, I agree with Mr. Umpherville that the judge erred in his application of the principles set out in R v Gladue.”

Criminals and defence lawyers alike seek out any kind of indigenous connection possible, knowing that even the most tenuous claims tend to get the benefit of the doubt from judges. And it leads to reduced sentences.

The prime justification for the creation of the Gladue principles was to reduce the overrepresentation of indigenous people in the prison system. In 1999, 17 percent of federal inmates were indigenous, though adult indigenous people made up just 2 percent of the adult Canadian population. This is certainly a concern worth addressing. But if the imposition of Gladue principles was supposed to reduce those statistics, it has failed terribly. Today, indigenous people make up 28 percent of all federal inmates. Among female inmates, 50 percent are Indigenous.

The social challenges facing indigenous Canadians are serious. On reserves, hard upbringing, substance abuse, crime, and neglect are sadly common with children. Poverty is rampant, and an inherent distrust of government authorities comes with the territory. That, unfortunately, is a recipe for creating criminals, and it’s these issues that are brought up when Gladue reports are brought before justices.

While many indigenous offenders came from disadvantaged and abusive backgrounds, that doesn’t make them any less dangerous when they cross the line into violent offences. In fact, it makes correction more difficult, and recidivism rates are higher among them. It’s understandable why people feel empathy for those who were raised in such circumstances, but public safety must be considered paramount in sentencing.

Just as applying heavier criminal sentences to one race over another is wrong, so is applying lighter sentences. Our courts must truly become colour-blind and apply sentencing based on the record of the individual, and the risk they present to the public.

To reduce the ratio of indigenous offenders in Canadian prisons, we must look at the true roots of the issue. Indigenous reserves are often socioeconomic disasters. People are living in isolated regions with limited opportunities and often in dysfunctional family units. Changing that system is a tall order, but it must happen if we want to reduce the number of indigenous people in the prison system.

For those who have become repeat violent offenders, it must be accepted that they are to serve long sentences for the sake of public safety. It’s a minority of criminals who commit the most violent crimes and once they are identified, they must be contained—no matter what race they are.

The Gladue principles were well-meaning, but they have failed. Along with reforming bail and sentencing guidelines, the Gladue principles must be removed from the justice system. They are putting citizens in harm’s way.

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.