Canadian Justice -- Canted to Serve the Interests of Indigenous Exceptionalism

"The appellant [who was 20 at the time] thought he could hear Mr. Stone yelling at his mother. Thinking that she was in danger, he rushed to the scene of the accident." 

"On arrival, he spoke to his mother and then confronted Mr. Stone who was hurrying toward his mother, having just come from a store where he had purchased cigarettes for her."

"Although Ms. Davis tried to stop her son, he walked briskly toward Mr. Stone and punched him in t he middle of his forehead, causing him to fall to the ground unconscious." 

Partial text of British Columbia Court of Appeal decision

 

"The specific question to be addressed in this case is whether Mr. Davis, as an Indigenous offender, should be sentenced differently from the way a non-Indigenous offender would be sentenced for an aggravated assault of this nature. In my view, the answer to that question must be 'yes'."

"Significant weight should be placed on the lessened moral culpability of the offender given his circumstances as an Indigenous person."

"Mr. Davis has been incarcerated since November 2024. By operation of law, the time served in custody will be counted as part of the 24-month conditional sentence order. The remainder of the first 18 months of the conditional sentence is to be served under house arrest." 

"[While the sentencing judge] was alive to the importance of Gladue factors, he found these factors had a 'lesser impact', in part of Mr. Davis's 'success in life' as demonstrated by the fact that he had graduated from high school, was employed, had no negative peer associations, no addiction issues, and no criminal history."

"Reports filed at sentencing confirmed that his father abused his mother and sexually abused his cousin."

"Mr. Davis's circumstances provide the necessary context for understanding his actions on the day of the offence."

"[While it isn't] necessary to establish a direct causal link between systemic and background factors and the offence at issue, Mr. Davis's circumstances provide the necessary context for understanding his actions on the day of the offence."

Justice Lauri Ann Fenlon, B.C. Court of Appeal majority decision 

The B.C. Appeal Court has sentenced an Indigenous offender to house arrest instead of jail for an unprovoked attack that left his victim permanently injured, citing the goal of reducing the disproportionate number of Indigenous offenders in Canadian jails. Photo by Corgarashu /Fotolia

 

The Gladue principle referred to is the generously forgiving infantalization of Indigenous Canadians who are held, due to environmental circumstances beyond their control, to be less capable than any other Canadian citizens in controlling their emotional, criminal impulses. Indigenous Canadians have the misfortune of being over-represented as a criminal class incarcerated for committing crimes in Canada. Canada's criminal justice system maintains that this is the result of colonization, of European settlers foisting their standards of civil behaviour on native Canadians.

 

That the colonial mentality was dismissive of the humanity of the Indigenous peoples who were found to be inhabiting North America at the time of European arrivals searching for prospective new territory for settlement. Considering themselves superior to the 'savages' they found throughout North America, a paternalistic attitude prevailed which made an effort at times to respect Native culture and values while at the same time maligning them. The establishment of Residential Schools for Indigenous children to receive the kind of formal education that would prepare theme for life in urban centres was meant to help them integrate and to be exposed to basic life skills alongside literacy and numeracy.

 

Those educational establishments were condemned in later years as a prime symbol of European arrogance, exposing Indigenous children to sub-par conditions injurious to their sense of pride, culture and heritage. Quite bypassing the fact that most children did receive a useful education, enabling them to go on to pursue further avenues of higher education in situations not entirely unlike the boarding schools that the elite in the United Kingdom sent their children to, where some children there too suffered ill treatment yet because it was the prevailing system of the monied class, managed to prevail toward normal adulthood.

 

In Canada, the Gladue principle prevails in the sentencing of Aboriginal Canadians, whereby lesser sentences are given to criminal offenders, taking their cue from the concept of a state where vulnerable children were raised in underdeveloped circumstances which hampered their sense of right and wrong. In fact, in Aboriginal communities there tends to be gender-based violence in excess of what prevails elsewhere. Minor criminal activities are common and many within the Native communities struggle to find their place within society. Alcohol addiction, illegal drug activity, and neglect of children's needs are rife.

 

That Indigenous Canadians have faced blatant discrimination is undeniable. That they are generally considered to be less capable at endeavours to shape a decent life for themselves outside of gangs and prostitution is a problem within the community. Yet among them have arisen those who pursued an education that would prepare them for pursuit of the professions of politics, law, education, medicine, mercantilism and academia, just as those from other walks of life have achieved.

 

In the face of which the failure to hold violence committed by Canadian citizens of Indigenous background remains an anomaly whereby they are held to inferior standards than that of other Canadians. In the case of Isaac Harrison Davis, found guilty of aggravated assault against another young man whom he believed to be abusing his mother, applying the Gladue principle which should long since have been retired from Canadian law, fails to do justice to his victim. Davis's mother happened to have been in a car accident while on the phone with her son; the other drive was Andrew Stone.

 

When Davis rushed to the scene of the accident, he confronted Mr. Stone and without warning struck him a blow severe enough that Mr. Stone fell unconscious, vomiting and bleeding, never having been given an opportunity to speak or to defend himself. His skull was fractured in the blow. Multiple surgeries followed. He was three weeks in a coma, paralyzed for two weeks. The result of which he suffered from speech aphasia, memory loss and cognitive deficiencies. He now must take speech therapy, and requires the use of a hearing aid. 

A member of the K'omoks First Nation, Mr. Davis had originally been sentenced to 21 months in prison, reflecting the fact that he had caused another man a severe brain injury. The Court of Appeal for British Columbia has now ruled that having failed to give due consideration to the Gladue principles; the sentencing judge, Justice Paul Riley, having taken into consideration the normalcy of his having completed high school, secure employment and no record of criminal activity; the original sentence was set aside.

 

Despite that Justice Paul Riley had concluded that the 21-month jail term approached the low end of the sentencing range, taking into account the effect of Gladue principles on the degree of moral culpability by the offender; for he had considered when he originally sentenced Mr. Davis, all the other mitigating circumstances. The reversal of this judge's carefully considered opinion leading to the sentence, represents a miscarriage of Canadian justice.

 

B.C.'s top court has set aside a 21-month jail sentence handed down last fall to Isaac Harrison Davis, a member of the K'ómoks First Nation, for punching another man, fracturing his skull and causing a severe brain injury. Photo by DARRYL DYCK /THE CANADIAN PRESS

 

MAID At Your Service in Canada

"To force people who are already in unjust social circumstances to have to wait until those social circumstances improve, or for the possibility of public charity that sometimes but unreliably occurs when particularly distressing cases become public is unacceptable."

"A harm reduction approach acknowledges that the recommended solution is necessarily an imperfect one; a 'lesser evil' between two or more less than ideal options."

Essay, Journal of Medical Ethics

 

"One way of responding to these cases [permissive assisted death regime] is, 'Well, clearly then, medical aid in dying should not be available to them [those living without the medical or disability supports they require, driven to choose MAID, without true voluntary, informed consent].

"We just don't think the fact that social conditions are contributing to make their lives intolerable means that they don't have the wherewithal to make that choice."

"People can make their own determination about whether their lives are worth living, and we should respect that."

[The public] may be shocked to realize that some people's lives become intolerable to them -- not simply because of their health condition, but because of something that, as Canadians, we have the power to change."

Bioethicist Amy Mullin, professor of philosophy, University of Toronto 

"All options on the table are really tragic and sad."

"But the least harmful way forward is to allow people who are competent to make decisions to have access to this choice, even if it's a terrible one."

Kayla Wiebe, PhD candidate in philosophy, University of Toronto

'You have to meet rigorous eligibility criteria. And being poor and not having a home, or a home that is suitable for you, does not make you eligible.’ Photograph: Marco VDM/Getty Images

 

A new paper produced by two University of Toronto bioethicists argues that allowing Canadians with non-terminal conditions to choose a doctor-assisted death following a failed search for better housing or proper medical care may be 'deeply tragic' but it would still be wrong to deny medical assistance in dying (MAID) to people who are driven mostly by poverty or unjust conditions; people who not only might, but have explicitly said they would prefer not to die.

There was a story seen on CTV of a 51-year-old woman with multiple chemical sensitivities who chose MAID after what she described as a failed search for an affordable apartment in Toronto where the afflicting odour of smoke or chemical cleaners would not bedevil her condition. In another instance, a 37-year-old Vancouver women made an appearance in a pro-euthanasia film who opted for doctor-assisted death after failing to receive adequate medical care for Ehlers-Danlos Syndrome, a rare, painful condition of fragile connective tissue throughout the body.

Medical Assistance in Dying was originally restricted to people whose death was considered to be reasonably foreseeable, then expanded in 2021 to include those not at imminent risk of dying, but with an illness, disability or disease causing enduring suffering intolerable to their quality of life. 

The paper in question that the professor of bioethics and her post-graduate student co-wrote was meant to address the question of whether someone facing an injustice -- like inability to acquire affordable housing -- could be recognized for a reason to deny them a request for assisted suicide. The co-authors point out their feeling that the absence of better social supports is "abhorrent", in and of itself constituting a deep injustice.

A new poll ascertained that while most Canadians support euthanasia for "grievous and irremediable" medical conditions, opinions tend to be more nuanced with assisted suicide for other reasons. An online survey by Research Co. revealed that half those questioned would agree to permit adults due to an inability to receive medical assistance to apply for medical assistance in dying. Less than three out of ten would support the expansion of assisted dying to include homelessness or poverty.

Refusing access to MAID, the two academics contend, "amounts to perpetuating their suffering, hoping that this will ultimately lead to a better, more 'just' world." They consider their recommendation as representing a harm reduction argument, that "the least harmful way forward is to allow MAID to be available."

The services proposed as an alternative to MAID, they argue, such as access to long-term care, palliative care and even basic care, is deteriorating following the COVID pandemic. The growing inability to access all services people require results in people believing their lives are intolerable yet they would be met with statements such as: "Well, sorry, we haven't made these social changes yet, but you're not going to have access" to MAID.

MAID proponents once claimed no one was choosing MAID as a result of poverty or a lack of social or medical support, points out Yuan Yi Zhu, Canadian research fellow at Harris Manchester College, University of Oxford. "It is more than tragic: it is a moral stain on our country, for which future generations will have to atone."

MAID deaths have grown in number from just over 1,000 in 2015 when assisted dying in Canada was legalized, to 31,644 in total by the end of 2021.

The Senate has passed Bill C-7, which expands access to medical assistance in dying, including, eventually, to people suffering solely from mental illnesses.  CBC