Tying the hands of judges. Ruling on aboriginal offenders compromises public safety
- Tying the hands of judges
Ruling on aboriginal offenders compromises public safety
April 1, 2012
The Supreme Court of Canada ruled recently that the troubled backgrounds of violent offenders who are aboriginal must take precedence when they are sentenced for breaching their long-term supervision orders. This creates a serious issue of public safety.
The ruling builds on the precedent-setting Gladue case of 1999, which resulted in an amendment to the Criminal Code that requires that all reasonable alternatives to incarceration be considered in the sentencing of aboriginal offenders.
It was not intended to be a free ticket out of jail. Nor can it be used for a lower sentence in crimes that carry minimum sentencing penalties.
Breaching the terms of a supervision order speaks directly to the failure of the offender to be controlled safely in the community.
Anything other than incarceration for a violent offender puts the public at risk. It sends a signal to sentencing judges that an aboriginal offender's background may take precedence over public safety.
Until this ruling, the more serious or violent the crime, the more likely that the terms of imprisonment under the Gladue amendment would be the same for aboriginals as for non-aboriginals who commit similar offences.
We agree with the sole dissenting judge in the 6-1 ruling, Justice Marshall Rothstein, who argued the ruling fails to distinguish between a longterm offender who is being sentenced and one who has breached the conditions of the long-term supervision order.
Once an offender breaches those conditions, "the alternatives to a significant prison term" are limited, wrote Rothstein. "The risk the aboriginal offender poses in the community is substantial and the management of that risk has been compromised. That's the reality facing the judge charged with fixing an appropriate sentence in such circumstances."
The possibility of reintegration is crucial in the distinction between violent offenders and dangerous offenders - the latter will be incarcerated indefinitely. There's still hope for long-term offenders, which is why they are returned to the community under supervision for up to 10 years. The conditions are set to ensure public safety while the offender is hopefully reintegrated into society. If the offender can do this successfully, it is a victory for everyone. There is no greater assurance of public protection than the successful rehabilitation and ultimate reintegration into society of a violent offender.
Unfortunately, it doesn't always work, especially when it involves offenders who have a history of repetitive sexual offences or violent behaviour. A warning bell that the rehabilitation isn't necessarily working is when a long-term offender breaches the conditions of a supervision order.
The Supreme Court ruling effectively ties the hands of sentencing judges who, in these instances, believe public safety should have primacy.
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