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(Vivienne Flesher for The Globe and Mail)
(Vivienne Flesher for The Globe and Mail)

Law and disorder: What Bill C-10 could mean for Canada's native people Add to ...

Gladue courts, named after the defendant in the 1999 Supreme Court case, were intended to concentrate expertise in alternative sentencing for natives. A significant feature is the pre-sentencing reports (called Gladue reports) that inform the judge about life circumstances that may make a monitored conditional sentence (similar to parole) more effective than time behind bars.

Effective, that is, at reducing rates of reoffending. If convicts work on their antisocial behaviour while under supervised release, says David Milward, a University of Manitoba law professor, they reintegrate into society more easily than if they serve their time “to the door.” It's cheaper too: Supervised release costs about $30,000 per convict per year, or less than one-third the cost of a year in jail.

“Why spend all that money when the other way is more cost-effective?” Prof. Milward says. Augmenting rehab programs for natives, which are now available to less than 20 per cent of aboriginal inmates, would be a “spend now, save later” investment, he says. More jail time will cost us more now and in the future.

Contradictory stands

The supporters of this approach include not only native organizations and the John Howard Society but the Minister of Justice, Rob Nicholson. He declined requests for an interview, but told the Canadian Bar Association last August that the Correctional Service of Canada's Aboriginal Justice Strategy (AJS) “does reduce the recidivism rate when people get involved. I wouldn't support the AJS if I didn't think it was making a difference.”

He nearly doubled AJS funding in 2008, as part of a “balanced approach” that also includes more police and stiffer sentences.

The strategy costs only $85-million a year for programs in more than 600 communities – peanuts compared with the $3-billion the government will spend this year on corrections. Some projections show that the tough-love Truth in Sentencing Act, passed last year, may triple the correctional budget in five years. We don't know the costs – including to the provinces – that will result from C-10's mandatory minimums.

These numbers “balance” only when you add the political component: Sixty-two per cent of Canadians believe longer prison sentences reduce crime. It's unlikely most of them are keen on culturally sensitive sentencing.

Mr. Rudin says the minimum-sentencing provisions represent an attempt to undermine the Gladue courts “by stealth” – a Gladue report won't be of any use if jail time is mandatory.

Earlier this week, an Ontario Superior Court judge struck down a 2008 federal statute that would have obliged her to jail a man with no criminal record for three years, for posing for a photo with a loaded gun. Madam Justice Anne Molloy ruled that imposing the mandatory minimum would be “fundamentally unfair, outrageous, abhorrent and intolerable.”

Her ruling, which is not binding on other provinces, will probably be appealed. But if judges are compelled to hand down mandatory minimums, discretionary power won't disappear, says Norman Tarnow, Nunavut's acting deputy minister of justice – it will just shift to Crown prosecutors.

“In some cases, it's going to force prosecutors to charge people with lesser offences, to avoid an unjust sentence,” Mr. Tarnow says. It will also clog up the courts, as the threat of long sentences prompts more aboriginal people – who plead guilty far more often than non-aboriginals do – to contest their charges.

A flood of new prisoners would make existing programs for aboriginals even less available, Prof. Milward says. An effective means of prevention will be supplanted by an expensive, punitive statute.

Logic lost in the shuffle

A 2006 AJS study of more than 4,000 inmates found that the recidivism rate among 3,361 aboriginal people who participated in culturally sensitive programs was less than half the rate among 885 who didn't. But the public doesn't hear about crimes that don't occur, and it snaps to attention when sensitivity appears to have trumped fairness.

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