Pubdate: Thu, 24 Mar 2016
Source: Globe and Mail (Canada)
Copyright: 2016 The Globe and Mail Company
Contact:  http://www.theglobeandmail.com/
Details: http://www.mapinc.org/media/168
Author: Sean Fine
Page: A13

INDIGENOUS MAN'S SUSPENDED SENTENCE BUCKS CONVENTION

Judge Gives Drug Trafficker Probation in Bid to Reduce Aboriginal Incarceration

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."

Justice Green is known for his outspoken defence of the "moral 
imperative of restraint" - justice dispensed without revenge. In a 
2013 article he wrote for a criminal lawyers' newsletter, he went out 
on a rare limb for a sitting judge, saying that crime laws passed by 
Stephen Harper's government "cast a dark shadow on the sentencing 
principles of proportionality and restraint."

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. Canadian courts generally receive an in-depth report 
before sentencing aboriginals on how the legacy of residential 
schools shaped them. 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. Through aboriginal health services, he has 
reconnected with his roots.
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MAP posted-by: Jay Bergstrom