ON DECEMBER 23, 2011, Ontario Superior Court Justice the Honourable Alan C. R. Whitten rendered his verdict in the case of a vicious beating in Caledonia of builder Sam Gualtieri, by defendant and Six Nations resident Richard Smoke. The judgement has received only a smattering of press attention, most of it issuing from the National Post. My feeling is that there ought to be more attention paid, but of a sort which begins by acknowledging universal failure and the urgent need to do something constructive before southern Ontario becomes a Gaza strip of AK-47-wielding Warriors, rock throwing children, and the Canadian army. If you think this is a dramatic and paranoid fantasy, then you are simply one of the many sleep-walking Canadians who has forgotten (or never bothered to notice) that such a thing has already happened. There is no reason at present to conclude it can’t happen again.

For what little it is worth, let me begin by stating for the public record I emphatically disagree with the verdict, which sentenced Smoke to a two-year prison term followed by three years of probation. As many have noted, Mr. Gualtieri was nothing more nor less than an innocent bystander, drawn into circumstance and delivered what a friend of mine ruefully calls “a raw deal.” Merely for being in the wrong place at the wrong time, this wholly ordinary and by all accounts decent man has been brain damaged for life, deprived of his dignity and the means of practicing his trade. I am ill-equipped to comment upon Smoke’s remorse, or the lack thereof, but we Haudenosaunee are experts in the field of the raw deal and know an injustice when we smell it. Let there be no wriggling of anyone from that particular hook.

Nothing of the preceding adds or detracts from what has already been written in the national media. Here I shall depart to reflect upon the universal failure mentioned some paragraphs earlier. But in order to attempt an enlightening of my readers, as I feel I must, I’ll issue a few words on the business of the courts as it pertains not only to Smoke but to Aboriginal justice in general. At the back of my mind as I do so are the discussions I’ve had with the now retired former Assistant Crown Attorney and author Rupert Ross. Like my own father, who for years worked in the Ontario courts, Rupert over several decades came to see both the scope and character of the justice system’s corrosive failures, particularly as these failures applied to indigenous communities and individuals. It was this clear and evident failure which led to revisions of the Criminal Code in 1996, specifically section 718.2(e) which introduced into the presumptive judge’s toolbox “all available sanctions other than imprisonment that are reasonable in the circumstances for all offenders, with particular attention to the circumstances of aboriginal offenders.” Read that again and ponder the frank confessional nature of this criminal code pronouncement, which effectively says: for god’s sake, keep them out of the system if you reasonably can.

The blunt qualifier “with particular attention to the circumstances of aboriginal offenders” was sharpened in the 1999 case of R v. Gladue, explicitly cited in December by Justice Whitten.* I’ll spare you my amateur commentary, noting only that R v. Gladue was of such importance that there are today three “Gladue courts” in Toronto whose mandate it is to hear cases falling within the domain of s. 718.2(e). As I’ve already suggested, the so-called two-tier, “race-based” (dear lord, why can people never see that “aboriginal” is a historical/territorial designation and not a “race”) arrangement of the Criminal Code which so bothers the layman commentator is rooted in the unequivocal failures of the one-tier, one-approach-for-all arrangement which preceded it. This may well turn out to be a case of good intentions gone bad (hardly an unprecedented thing), but even if this happens to be so it brings us to the depressing fact that there’s nothing better on the horizon. A good many studies drawing from the day-by-day real world experience of informed persons lie behind the Criminal Code amendments. Let the tunneled-vision media beat their law and order drum: Rupert Ross would say he’s danced to that, and look where it got him.

I haven’t even begun to approach the details lurking within the generic mess of the justice system. Here’s the crack through which I’ll enter. The logic of section 718.2(e) derives from the urging of witnesses at the time that alternative or “restorative” justice offers in some cases a better prospect than the tried and tested method of incarceration. What is this alternative model exactly? Many things. It can be drug treatment, or a mixture of incarceration and community service. Or it can be a restorative effort, an out-of-court undertaking by means of which offenders and victims face one another in the community and, with community involvement, participate in a collaborative goal of healing, restoration, and reintegration. Properly done, I’m told by people who ought to know that it is a more raw and thorough-going undressing of the criminal and the crime than any prison sentence. In other words, no it’s not a get out of jail free card, etc., and it’s not for weaklings or half-assers. Compared to prison sentences, community sentencing has yielded reduced rates of recidivism and lowered justice system costs. I gather, again from folks with some experience, it has potential.

Here we are readied to consider the universal failure on display in Caledonia. The plain fact is that both Sam Gualtieri’s life sentence and Richard Smoke’s two-year sentence could only have happened in the context of political and human failure. Can you tell me who today, white or brown or red or green or speckled, is doing anything either to make amends or to prevent the next conflagration? Twisted as it is, Whitten’s hobbled 718.2(e)/Gladue ruling is the closest thing to effort that we have before us. The politicians are sitting on their hands, while on the other side of the equation there appears no effective restorative program of the sort for which there exists a Gladue ruling in the first place. Smoke and the two other then-teenaged attackers were exactly, on a much smaller scale, as the First Intifada was: children taking matters into their own hands when the adults everywhere had failed. As with the 1990 Oka conflict, whose own roots go back to the Sulpicians and the 1700s, the Douglas Creek occupation has not changed a thing.

A judge can reference the residential school system until the dogs fly, but there is nothing meaningful in the judicial or extra-judicial context that can be done with this information. Gladue is in many jurisdictions a motor with no fuel, a handle-less axe. It follows from an analysis of historic trauma and wrongdoings that history matters, but the courts can not here fulfil the intent of the Criminal Code’s 718.2(e) provisions. This is why the Caledonia ruling so rankles. It manages to offend both those of us who believe in dealing with history (not only the residential schools but the 95% of our land which was sold by the Crown, which then used the money ostensibly placed in trust to pay for Canada’s own infrastructure: technically Six Nations owns several universities and government buildings and highways) and those who want the mere keeping of law and order, never mind the past. On both sides the failures are ample and well evident. As the saying goes, someone needs to bloody well Step Up. We are inching toward the next disaster, and no leaders, indeed no adults, are bringing the respective communities to the table. The price of our failure will be further injustice, blood, and misery.

* The following are “the considerations which should be taken into account by a judge sentencing an aboriginal offender” quoted from the R. v. Gladue decision:

Let us see if a general summary can be made of what has been discussed in these reasons.

1. Part XXIII of the Criminal Code codifies the fundamental purpose and principles of sentencing and the factors that should be considered by a judge in striving to determine a sentence that is fit for the offender and the offence.

2. Section 718.2(e) mandatorily requires sentencing judges to consider all available sanctions other than imprisonment and to pay particular attention to the circumstances of aboriginal offenders.

3. Section 718.2(e) is not simply a codification of existing jurisprudence. It is remedial in nature. Its purpose is to ameliorate the serious problem of overrepresentation of aboriginal people in prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing. There is a judicial duty to give the provision’s remedial purpose real force.

4. Section 718.2(e) must be read and considered in the context of the rest of the factors referred to in that section and in light of all of Part XXIII. All principles and factors set out in Part XXIII must be taken into consideration in determining the fit sentence. Attention should be paid to the fact that Part XXIII, through ss. 718, 718.2(e), and 742.1, among other provisions, has placed a new emphasis upon decreasing the use of incarceration.

5. Sentencing is an individual process and in each case the consideration must continue to be what is a fit sentence for this accused for this offence in this community. However, the effect of s. 718.2(e) is to alter the method of analysis which sentencing judges must use in determining a fit sentence for aboriginal offenders.

6. Section 718.2(e) directs sentencing judges to undertake the sentencing of aboriginal offenders individually, but also differently, because the circumstances of aboriginal people are unique. In sentencing an aboriginal offender, the judge must consider:

(A) The unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and

(B) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection.

7. In order to undertake these considerations the trial judge will require information pertaining to the accused. Judges may take judicial notice of the broad systemic and background factors affecting aboriginal people, and of the priority given in aboriginal cultures to a restorative approach to sentencing. In the usual course of events, additional case‑specific information will come from counsel and from a pre‑sentence report which takes into account the factors set out in #6, which in turn may come from representations of the relevant aboriginal community which will usually be that of the offender. The offender may waive the gathering of that information.

8. If there is no alternative to incarceration the length of the term must be carefully considered.

9. Section 718.2(e) is not to be taken as a means of automatically reducing the prison sentence of aboriginal offenders; nor should it be assumed that an offender is receiving a more lenient sentence simply because incarceration is not imposed.

10. The absence of alternative sentencing programs specific to an aboriginal community does not eliminate the ability of a sentencing judge to impose a sanction that takes into account principles of restorative justice and the needs of the parties involved.

11. Section 718.2(e) applies to all aboriginal persons wherever they reside, whether on- or off-reserve, in a large city or a rural area. In defining the relevant aboriginal community for the purpose of achieving an effective sentence, the term “community” must be defined broadly so as to include any network of support and interaction that might be available, including in an urban centre. At the same time, the residence of the aboriginal offender in an urban centre that lacks any network of support does not relieve the sentencing judge of the obligation to try to find an alternative to imprisonment.

12. Based on the foregoing, the jail term for an aboriginal offender may in some circumstances be less than the term imposed on a non‑aboriginal offender for the same offence.

13. It is unreasonable to assume that aboriginal peoples do not believe in the importance of traditional sentencing goals such as deterrence, denunciation, and separation, where warranted. In this context, generally, the more serious and violent the crime, the more likely it will be as a practical matter that the terms of imprisonment will be the same for similar offences and offenders, whether the offender is aboriginal or non‑aboriginal.