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what you've provided is an assertion. table stakes is some examples of lighter sentencing, though actual statistics would be better. My sky is blue with scattered white clouds; in point of fact, I think I probably agree with you that first-nations criminals get lighter sentences. but arguments need to be backed up with evidence, not mere assertions.
Come on man, this is pure sophistry. The law is designed to reduce sentences for natives. Here we have a news story, showing that in practice it is used as it was designed. Yet we can’t conclude anything without a study? At some point asking for a study to back up the smallest inferences or conclusions is just a tactic to stall or shut down discussion
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Sentences are definitely lighter -- when a judge invokes Gladue he specifically includes it in his sentencing decision. I suppose that one could technically assert that "I'm giving this guy a longer sentence because of his racial background; Gladue allows this" but I'm pretty sure we would have heard about it, lol.
Here's an example:
https://www.rmotoday.com/stoney-nakoda/stoney-nakoda-youth-found-guilty-of-shooting-german-tourist-to-be-released-from-custody-2277997
It's typical in that nowadays the Crown anticipates the Gladue report and drops available charges and/or requests a light sentence based on the expected content of the report.
Well of course when a judge invokes Gladue it is to impose a lighter sentence. But the issue is, how often does that happen, how much lighter, and is the result just? After all, it is completely normal to conclude that a defendant is somewhat less morally culpable, and hence deserves a lighter sentence, IF he has been subject to abuse or trauma or deprivation, or what have you. Penry v. Lynaugh, 492 U. S. 302, 319 (1989) ("`[E]vidence about the defendant's background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background . . . may be less culpable than defendants who have no such excuse'"). I don’t purport to know enough about indigenous people in Canada to determine whether the outcomes are just, but unless we know the outcomes, how can anyone make a judgment about them?
NAL, but anyone who hangs out in court for any period will notice that Gladue arguments are made and accepted anytime a defendant has even the most tenuous claim of indigineity -- as indeed we see in the case under discussion. The defendant was not even previously aware of aboriginal descent, and therefore could not have been disadvantaged by it. (in case you aren't aware, Métis are not a visible minority -- as the name implies, they are of mixed French-Indigenous descent, and the mixing mostly took place during the fur trade era. They were not put on reserves, and assimilated much more than the treaty Indians, causing further mixing in the intervening century.)
tl;dr: many/most Métis just look like (and are treated as) white guys (especially the further you get from Manitoba, and BC is pretty far), so he probably wasn't downtrodden by structural racism, either.
Nobody argued this -- they argued that he deserved a lighter sentence because of his claim to aboriginal ancestry.
(Also I would argue against it, if only because most criminals were subject to these factors, to the point where it should be considered the default state when looking at sentencing guidelines. If you want to tack less leniency for those with a perfect upbringing, I could maybe go for it.)
Except that the trial court didn't in the case under discussion. That is my question: How often, and in what circumstances, is it done? And I assume that the BC decision applies only in BC; what about in other provinces? Where have they come down on this issue
No, that is what posters here think the court argued. But that is not the case. If you see my earlier comment a bit higher in the thread, there is a lengthy quote from a case noting that that is not the case; that the point is to determine the extent, if any, the defendant's ancestry mitigates his individual culpability. And, the Ipeelee case from the Canada Sup Court, cited therein, explicitly says: "systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness" and "Furthermore, the operation of s. 718.2(e) does not logically require such a connection. Systemic and background factors do not operate as an excuse or justification for the criminal conduct. Rather, they provide the necessary context to enable a judge to determine an appropriate sentence. This is not to say that those factors need not be tied in some way to the particular offender and offence. Unless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence." That says nothing about how it works in practice, of course, but it is nonetheless true that the legal issue is indeed about the moral culpability of the defendant, and the role, if any, of a defendant's indigenous background as a factor in assessing his moral culpability.
Well, first, it clearly only applies at the margins; note that the quote says: "("`[E]vidence about the defendant's background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background . . . may be less culpable than defendants who have no such excuse'"). And, since we are talking about what criminal courts do in practice, those factors tend to be very rarely considered since, as you note, they are common to most offenders, and hence do not generally provide a basis for reducing sentences from the norm.
As I have said, in this particular case, that might mean that his background is not particularly relevant. Though note that the court focused on his mother, and how her Metis status supposedly contributed to his crappy upbringing. Again, I don't know enough to say whether that is BS or not, nor how representative it is of how the law is applied in general.
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