Should 'Indianness' mitigate sentence?

The Supreme Court wrestled yesterday with the question of whether an aboriginal woman's "Indianness" should have netted her a lighter sentence for stabbing her husband.

"What is it about her 'Indianness' that makes her different from another non-aboriginal person?" Chief Justice Antonio Lamer asked lawyers for the woman.

It's the first time the court has been asked to interpret a 1996 amendment to the Criminal Code that tells sentencing judges to pay "particular attention to the circumstances of aboriginal offenders." The amendment was meant to counteract what native leaders have called a discriminatory justice system.

In 1997, the B.C. Supreme Court ruled against applying such consideration to Jamie Gladue. She was sentenced to three years, the mid-range for her crime of manslaughter, for knifing her husband in the chest in September 1995. The judge ruled against special consideration because Ms. Gladue didn't live on a reserve.

In an appeal, a B.C. Court of Appeal rejected the judge's distinction between urban and reserve aboriginals, but still found no reason to take her aboriginal status into account in sentencing.

Yesterday, Supreme Court of Canada justices revisited the issue as they questioned lawyers.

Chief Justice Lamer said a judge might be willing to take into account specific cases where an aboriginal custom would require a more lenient sentence. He asked Ms. Gladue's lawyers for concrete examples.

Lawyer Gil McKinnon could not "point to anything that specific," but argued that Ms. Gladue's poverty, limited education, unemployment, alcoholism, history of family violence, and ill health were enough to prove her "Indianness," because such factors are typical of aboriginals "who fall into the circle of disadvantage."

Crown lawyer Wendy Rubin asked the court to resist creating a separate justice system based on race.

Federal government lawyer Kimberley Prost also the 1996 amendment requiring cultural sensitivity was not intended to create a separate sentencing regime for aboriginals.

The court reserved judgment.