Playing the Indian Card

Saturday, April 09, 2016

Queen Elizabeth II versus Alain Bellemare

Alain Bellemare was convicted of torturing a five-year-old girl, inflicting twenty-five third-degree burns with a cigarette, and three more with a lighter. The child was then left without medical attention. Some burns were on the face, some on her genitals. She will be scarred for life.

Bellemare was given a 15-month sentence.

I am no fan of vindictive sentencing of criminals; I am painfully aware that the law commonly falls more heavily on the poor. But that sentence does seem lenient, for the vital purpose of deterring others from doing likewise. The prosecution asked for four years, which seems little enough. The judge reduced the sentence on the grounds that Bellemare was an aboriginal who had suffered from the experience of residential schools.

Mind you, Bellemare had never been to a residential school. Neither had anyone in his immediate family. His grandparents had.

Even if we allow the troublesome fiction that residential schools were necessarily harmful, despite the fact that most students who attended have fond memories, their ill effects cannot possibly linger unto the third generation. Nobody would buy this in any other context.

Or actually, they would. This is typical of Third World elites, who still blame colonial powers for all their ills, even though the European colonial powers left at least fifty years ago. And even t hough this experience was not unique; being colonized by some stronger power is the common human condition throughout history. W.C. Fields was right: there's a sucker born every minute.

The judge probably thought he was striking a blow for aborigines. This is terribly near sighted. There my or may not have been poor conditions for aboriginal children in residential schools three generations ago; but that is past and done. Aboriginal children facing torture today is a definite problem we can do something about now, and judge Guy Lambert arguably aided and abetted rather than doing something to discourage it.

To be fair to Lambert, he was not acting alone. His authority was the Criminal Code of Canada, which, in section 718.2 e, inserted in 1996, instructs judges “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.”

I think it is quite likely that judge Lambert's reading of this provision as applying here is not tenable, and his sentence might be overturned on appeal. But his very broad interpretation of section 716.2 e apparently depends, in turn, on the decision on appeal in the Queen's case against Jamie Gladue, back in 1999. Ms. Gladue, suspecting her common-law husband was having an affair, stabbed him to death. She was sentenced to three years, and was out in six months. While the sentence was upheld on appeal, the higher court scolded the judge for an “overly narrow”interpretation of section 716.2e. It was expressly to be applied to reduce jail time for aboriginals even in the most serious of crimes. Every time a Canadian aboriginal is convicted, there now must be a “Gladue Report,” proposing reasons for giving them a more lenient sentence based on the supposed history of aboriginal Canadians.

This provision of the Criminal Code, and the way it has been interpreted by the courts, is deeply troubling. Because it is a violation of a fundamental human right, that of equal treatment before the law.

In 1970, the Canadian Supreme Court ruled on Queen Elizabeth II versus Joseph Drybones, a decision that is considered a landmark in Canadian aboriginal rights and human rights. Drybones, found inebriated on the street outside a hotel in Yellowknife, was charged with drinking alcohol in public off a reserve, illegal for status Indians according to the Indian Act at the time. This was thrown out on the grounds that we cannot have separate laws and separate penalties for specific ethnic groups. We are all owed equality before the law, without discrimination based on race, creed, colour, or ethnicity.

Yet the revised Criminal Code, section 716.2 e, clearly requires, counter to Drybones, disparate treatment before the law depending on one's ethnicity.

Ironically, while the more recent Gladue and Bellemare decisions do no favours to Canadian Indians—in both cases, the victims as well as the perpetrators were aboriginal—they also probably do far less to reduce incarcertion rates among Indians than would reversing the original Drybones decision.

Both Gladue and Bellemare committed their crimes while flaming drunk.

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