In 5-4 decision, majority says Indigenous offenders do not have constitutional right to special treatment in justice system
The court split 5-4, with the majority saying Indigenous peoples do not have a constitutional right to special treatment in the criminal-justice system. The dissent argued that over-incarceration of First Nations stands in the way of reconciliation, which it called a constitutional necessity.
The same Liberal government in 1996 also created conditional or community-based sentences as an alternative to jail. But in 2012, the Conservative government of Stephen Harper put strict limits on the use of conditional sentences. The Supreme Court majority, in a judgment co-written by Justice Russell Brown and Justice Malcolm Rowe, warned against giving judges power that properly belongs to Parliament. Referring to the 1996 law that requires special consideration for Indigenous offenders, they wrote: “It is a legislative provision, not a constitutional imperative, and it is open to Parliament to amend it, even if to narrow the circumstances in which it applies.
Adam Bond, a lawyer for the Native Women’s Association of Canada, said the ruling undermined the Gladue framework and would increase the representation of Indigenous women in jails. The result: The court split almost entirely by party of appointment, a common trend over the past 2½ years. All appointees in the majority, except for Justice Rowe, were picked by a Conservative prime minister, Mr. Harper. All the dissenters except for Justice Karakatsanis were chosen by Liberal Prime Minister Justice Trudeau.
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