An outspoken judge has given an indigenous man a suspended sentence for trafficking in cocaine, breaking from sentencing traditions that have contributed to the widespread incarceration of aboriginal Canadians.
Federal law requires judges to give aboriginal offenders special consideration in sentencing. But Justice Melvyn Green's decision to give no jail time to Robert McGill, 40, of Toronto, is a departure for a justice system that too often, he said, simply gives these offenders a small sentencing "discount."
Justice Green also broke from a convention in which cocaine traffickers are sentenced based on quantity. Mr. McGill would normally have received two to five years, Justice Green said, for being caught with nearly one-third of a kilogram, worth $15,000, which suggested he supplied street-level dealers. Instead, he gave Mr. McGill 30 months of probation, including a nightly curfew of 11 p.m. and a requirement to report regularly to a probation officer. Justice Green described a suspended sentence as rare, if not unprecedented, for the amount of cocaine involved.
Although the Liberal government has promised to try to reduce the numbers of indigenous peoples behind bars, the federal prosecution service says it is seeking a court's permission to appeal the sentence.
"The trial judge erred by imposing a sentence manifestly unfit for the gravity of the sentence," the prosecution service said in its brief notice of appeal.
It had asked for a sentence of two years less a day, saying that deterring others and denouncing traffickers should be the most important consideration. Prime Minister Justin Trudeau has publicly directed Justice Minister Jody Wilson-Raybould to increase the use of restorative justice and reduce imprisonment among aboriginals. The minister's office declined to answer why, in light of the mandate letter, it is appealing the sentence, and referred The Globe to the prosecution service.
One in four federal prisoners in Canada is aboriginal, and the proportion has risen steadily, despite a 1996 federal sentencing law that described jail as a last resort for all, especially aboriginals. The Supreme Court has interpreted that law to mean that judges should take into account the present-day effects of residential schools, and look to the presence of community supports that could serve as an alternative to prison. Indigenous peoples made up 4.3 per cent of Canada's population, according to the 2011 census.
"Disproportionately high rates of incarceration are a notorious part of the problem that defines the current state of Aboriginal Canadians," Justice Green wrote in a 19,000-word ruling this month, explaining his reasons for keeping Mr. McGill out of jail. "Perpetuating a sentencing model that favours imprisonment is not the solution."
In his ruling on Mr. McGill, he said the Supreme Court had invited a more creative approach to restorative justice. And he said Mr. McGill has turned his life around and is an excellent candidate for such an approach.
He had a great deal of information before him about Mr. McGill's life and history. Mr. McGill's father was raised in an orphanage and grew up to become a physically and emotionally abusive alcoholic. His mother's mother spent 10 years in a residential school and became an abusive, alcoholic parent; his mother suffered from depression. Growing up in Regent Park, a large housing project in Toronto, Mr. McGill suffered from racism, was bullied, drank and used and sold drugs. Between the ages of 20 and 22, he committed several offences, including gun possession, possession of a narcotic, aggravated assault and use of a firearm.
But the Crown consented to Mr. McGill being let out on bail the day of his arrest in 2013, and he has been crime- and drug-free during the 27 months he has been on bail, while obtaining his high-school diploma, attending college and holding down a job, Justice Green said. He is in a long-term, stable marriage, and is an excellent father to his young son.
Sean Fine