Racially Based ‘Justice’ Is Built on Flawed Reasoning

Commentary, Aboriginal Futures, Justice, Brian Giesbrecht

Provincial justice ministers of Manitoba and Saskatchewan are urgently calling on the federal government to “convene a bail reform summit to address the increasing level of violence faced by Canadians.” Other provincial justice ministers have voiced similar concerns.

What is going on?

The immediate concern is bail reform. But it is part of an ongoing racially based strategy of the Supreme Court and federal government of attempting to reduce the high rate of incarceration  of indigenous offenders (and now, black offenders) by the simplistic and wrong-headed method of releasing indigenous accused with records of violence where others would not be released, sentencing indigenous offenders to shorter jail terms than others would receive, and paroling dangerous offenders—or simply not using jail terms at all for violent offences.

There are many recent examples of indigenous offenders—who definitely should have been in jail—committing violent offences. The most egregious recent example is that of Myles Sanderson, who stabbed to death 11 people and injured many more. Sanderson had a terrible record, and would almost certainly have been in jail if he had not been indigenous. As it is, his victims were indigenous. How a federal government strategy that results in the murder of indigenous people can be said to to be helping indigenous people is hard to fathom. The case is not unique. The vast majority of the victims of violent indigenous men and women are indigenous.

The Sanderson case is one of many, such as the recent murder of a police officer by an indigenous man who should not have been on the street. These are two only of the many cases that alarm the provincial justice ministers.

The racially based release and sentencing strategy is fundamentally flawed. The notion that “systemic racism” is responsible for so many indigenous and black offenders ending up in the justice system is simply incorrect. The fact is that a disproportionate number of indigenous and black men commit crimes. That’s why there are so many in jail. It is not “systemic racism” or “poverty” that is responsible for their offending. The fact that the great majority of indigenous and black people do not commit crimes—including low-income people—is proof of the falsity of the “systemic racism” and “poverty” theories.

To illustrate the weakness of the reasoning, consider the fact that there are far more men than women in prison. Does this disproportion mean that there is something wrong with the system, so the numbers should be evened out by letting more men out of prison, or putting more women in?

Or, in the case of ethnic groups that are underrepresented in the prison population, by putting more in jail? Chinese Canadians are underrepresented in our jails. There are practically none in there. Would it make sense to adopt policies that would result in incarcerating more Chinese Canadians to even out the numbers? That “solution” seems to be in line with the flawed reasoning on this topic.

These “solutions” are obviously absurd, and yet that is what they are attempting.

It all goes back to the Gladue case. A well-intentioned Supreme Court set out to solve the problem of indigenous overrepresentation in Canada’s jails by imposing a racially based system of selective sentencing. A complicated sentencing formula that applied only to indigenous offenders was just made up by the court. In basic terms, indigenous offenders would receive lighter sentences than non-indigenous offenders.

Ottawa picked up on this and amended the Criminal Code accordingly. But the fact that the indigenous incarceration rate has continued to rise in spite of these racial sentencing schemes is clear proof that the strategies don’t work. In fact, they just make for more crime victims—who are overwhelmingly indigenous. Just think of the message sent to an indigenous victim of a serious assault who watches her abuser escape jail, in a case where a non-indigenous offender would receive a jail term. The message the system sends to her is clear—she is not worth as much as a non-indigenous victim. Or think of the families of Myles Sanderson’s murder victims. How were they helped by the release of a monster who was only there to kill because he was indigenous?

But in spite of the fact that racially based sentencing has been an abject failure, this failed system is being accelerated. Indigenous offenders, like Myles Sanderson, are now released on bail, or let out on parole, in spite of violent records, in circumstances where a non-indigenous offender would stay safely in jail. And those truly dangerous people are victimizing law-abiding Canadians—most of whom are indigenous.

How is that helping indigenous people? How is that fair to anyone? And how can a racially based system even be called “justice”?

“Justice” is one set of laws for everyone.


Brian Giesbrecht, retired judge, is a Senior Fellow at the Frontier Centre for Public Policy