“… it is clear that race-based justice remains the norm — for proof, one need look no further than the absurdly light sentence meted out to the native man who beat Sam Gualtieri nearly to death… such a paltry sentence for such a serious crime sends the message that to be native is to be exempt from the same laws that govern all other Canadian citizens.”
“(At Caledonia)…native protesters were able to act with impunity… non-native Ontarians, however, including local residents, still found themselves subject to the law as per normal.”
More injustice from Caledonia
Editorial Board: Dec. 27th, 2011
The Liberal government of Ontario Premier Dalton McGuinty has been rightly criticized for allowing race-based policing to prevail during the native occupation of a land development site near the town of Caledonia, Ont. After natives forced construction activity to stop in a new housing development adjacent to Six Nations land in 2006, native activists also set up blockades on both public and private property. The native protesters were able to act with impunity while the Ontario Provincial Police (OPP) concerned themselves with “peacekeeping.” Non-native Ontarians, however, including local residents, still found themselves subject to the law as per normal.
It was a disgraceful period in Ontario’s history. Unfortunately, as a recent criminal case related to the occupation reveals, it is clear that race-based justice remains the norm — for proof, one need look no further than the absurdly light sentence meted out to the native man who beat Sam Gualtieri nearly to death.
Mr. Gualtieri was a construction worker who was developing four homes at the Stirling South subdivision, located a kilometre from the disputed territory. On Sept. 13, 2007, Mr. Gualtieri and members of his work crew arrived at one of those houses, and found three natives inside. A confrontation ensued, and Richard Smoke, a then-18-year-old native man, began to fight with Mr. Gualtieri while his underage companions fled. When Mr. Gualtieri’s work crew entered the half-built home, they found him badly injured on the ground, while Smoke beat him with a piece of lumber he was swinging with both arms.
Mr. Gualtieri suffered severe injuries to his face and head, and sustained permanent brain damage. To this day, he has trouble reading, speaks slowly and walks with difficulty. He has not been able to return to work.
The guilt of the assailant, Richard Smoke, has been established by the courts — he was found guilty of break and enter and aggravated assault in September. And no one disputes the seriousness of the crime: Judge Alan Whitten described the assault against Mr. Gualtieri to have been “just a notch below culpable homicide.” He added that this “very serious and grave offence” did not advance “any ideology or idea” — was not politically motivated, in other words. It was a brutal assault, well removed from the actual occupation, and one that continues to have lasting ramifications for Mr. Gualtieri, who will, as Judge Whitten wrote, “live life as a brain-damaged man.”
Yet Smoke’s lawyer argued that her client was raised in a culture of racism, and negatively impacted by the legacy of the residential school system (of which Smoke himself was never a part, having been born a full 15 years after the last residential school in Ontario closed). She asked Judge Whitten to consider the “aboriginal perspective” when determining Smoke’s sentence.
Consider it, Judge Whitten most certainly did. For a vicious assault on an unarmed man who was going about his lawful business on private property, Smoke was sentenced to only two years and 11 months. With time served, Smoke will serve less than two years behind bars for a crime even Judge Whitten believes was barely below intentional murder.
The Gualtieri family is rightly outraged by a lax sentence that doesn’t come close to fitting the severity of the crime. Even the eight years that the Crown had been seeking would be insufficient, considering the degree of violence, and permanent injuries, inflicted on Mr. Gualtieri. Much like the hands-off approach taken by the OPP during the crisis, such a paltry sentence for such a serious crime sends the message that to be native is to be exempt from the same laws that govern all other Canadian citizens.
That isn’t new — since a 1999 Supreme Court ruling, judges have been required to consider the unique circumstances of aboriginal offenders, who make up a disproportionately large percentage of Canada’s prison population. But this ruling — known as the Gladue decision after Jamie Tanis Gladue, a young aboriginal woman convicted of killing her boyfriend — is not, in the words of Judge Whitten himself, a “get-out-of-jail-free card.”
And yet, when one considers the paltry sentence meted out to Smoke, whose victim will continue to suffer from his injuries for the rest of his life, it seems to be almost exactly that. Judges can consider the unique circumstances of natives, but should remember that the rest of Canadian society must feel as though their court system takes lawlessness seriously, no matter the skin colour of the perpetrator. Locking Smoke up for less than two years sends precisely the opposite message.
See original here.
See my “First Nations” category here.
See my “Policing & Justice-Related Issues” category here.