Pubdate: Sat, 22 Sep 2012
Source: National Post (Canada)
Copyright: 2012 Canwest Publishing Inc.
Author: Allison Jones
Page: A11


Justice minister failed to take into account men's heritage

TORONTO * Ontario's top court ruled Friday that two men should not be
extradited to the United States to face drug charges because of their
aboriginal status.

"It would be contrary to the principles of fundamental justice" to
send the men to the United States, where their heritage would not be
factored in to sentencing, the way it is in Canada, the appeal court

Factors under what is known as the Gladue principle are considered in
Canadian law to try to offset systemic discrimination against
aboriginal people.

The federal justice minister didn't properly take these factors into
account when he ordered Zachary Leonard and Rejean Gionet extradited,
and for that he was wrong, the court ruled.

Mr. Leonard, a 24-year-old member of the Rainy River First Nations
with no criminal record, was arrested at a U.S. border crossing in
2006 when the van in which he was a passenger was found to be carrying
46,000 ecstasy pills.

If he is prosecuted in the U.S. he could face 19 years in

Given his age, lack of a record, peripheral alleged involvement in the
crime, his aboriginal status and steps he has taken to rehabilitate
himself since then, he might not receive any jail time in Canada, the
court said.

Mr. Gionet, a member of the Ginoogaming First Nation, was allegedly
involved in importing oxycodone into the U.S. from Canada in 2003 and

In the U.S. he would face six or seven years if he pleaded guilty and
up to 10 years if convicted after a trial. In Canada, the sentence
range is three to five years and he has already spent 3 1/2 years in

Gladue, a Supreme Court of Canada decision from 1999, states that
factors such as dislocation and high unemployment combined with bias
and systemic racism have contributed to the "grossly disproportionate"
incarceration of aboriginal people.

It does not amount to reverse discrimination in the form of
automatically lighter sentences or a "get out of jail free" card, the
appeal court said.

But the courts in Canada must consider aboriginal heritage as a factor
in sentencing because equality does not necessarily mean equal
treatment, the court said.

Justice Minister Rob Nicholson "refused to apply the Gladue
principle," the appeal court ruled and quashed the extradition orders.

In the minister's decision in Mr. Leonard's case, he wrote that "it
would be unfair if Mr. Leonard could escape a trial on the offence
alleged against him on the basis that he is an aboriginal defendant."
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