Author: John Carpay, President of the Justice Centre for Constitutional Freedoms
Sierra Beverly was 12 years old when a Dodge Ram crossed the centre line on a road south of Brantford and smashed head-on into the vehicle carrying Sierra and her mother, Naomi.
Sierra died. Naomi survived, but with severe brain injuries and other impairments that have left her needing 24-hour supervision and attendant care.
The driver, Darris Wilson, later pleaded guilty to dangerous driving causing death and dangerous driving causing bodily harm. The Crown asked that he spend four years in prison.
He got house arrest instead.
Justice Gethin Edward sentenced Wilson to two years less a day in the community. Wilson’s guilty plea, lack of a criminal record and other personal circumstances were relevant. But so was something that should have had nothing to do with the punishment for killing a child through dangerous driving: his ancestry.
Canada’s Criminal Code tells judges to consider alternatives to jail for all offenders, but then adds a special instruction: judges must give “particular attention to the circumstances of Aboriginal offenders.”
In 1999, the Supreme Court of Canada turned that provision into what are now called the Gladue principles, requiring a different sentencing analysis for aboriginal offenders because of their background and heritage.
There it is in black and white. Our criminal law expressly separates one racial and ancestral group from everyone else at sentencing.
Wilson’s case shows where that principle leads.
His Gladue material attributed his alcohol abuse and unhealthy relationships in part to a “major disconnection” from his aboriginal culture.
The sentencing judge said Wilson’s culture had been taken from him and his family in a systematic fashion by the Government of Canada. After the crash, Wilson began “reconnecting” with his culture through activities such as fishing, gardening, spending time in nature, and learning about traditional medicines.
None of those facts change what happened on February 11, 2022.
A 12-year-old girl was killed. Her mother was catastrophically injured. The Crown considered four years in a penitentiary appropriate. Yet the offender’s aboriginal ancestry opened the door to a sentencing framework that would not apply in the same way to a Canadian of Asian, African, or European ancestry.
That is the problem.
Millions of Canadians know what it means to be disconnected from an ancestral culture. Immigrants arrive here without the language, customs and social networks of their new country. Their children and grandchildren often lose the language and traditions of the countries their families left behind.
Many ethnic communities in Canada also carry memories of genuine historical injustice — Ukrainian internment during the First World War, Japanese internment during the Second World War, and the mistreatment of Chinese labourers are obvious examples.
Addiction is not unique to one race. Neither are abusive relationships, poverty, family dysfunction, or intergenerational trauma. These things can destroy lives in every community.
Judges should be free to consider them when they are actually present in the life of an offender. A man who grew up amid abuse should be able to put that evidence before the court. A woman whose childhood was destroyed by addiction should be able to do the same.
Poverty, trauma, remorse, rehabilitation, and family circumstances can all be relevant because they belong to the individual standing before the judge.
But an individual circumstance is not the same thing as ancestry.
The law crosses an important line when it says that one offender’s ethnic background deserves “particular attention” while another offender’s does not. Justice ceases to be equal when the state first asks which racial or ancestral box the accused belongs in and then changes the legal analysis accordingly.
This has nothing to do with denying aboriginal and treaty rights. Canada can recognize and affirm genuine treaty rights without importing race into the punishment of crime.
A treaty right concerns a constitutional relationship and a specific legal entitlement. A sentence for dangerous driving concerns the responsibility of one human being for the harm he caused another.
Those are not the same thing, and Canadians should stop pretending that they are.
The Indian Act already divides Canadians by legal status and ancestry. Our Constitution still assigns Parliament jurisdiction over “Indians, and Lands reserved for the Indians.” Whatever arguments Canadians continue to have about those arrangements, we should not compound them by allowing ancestry to influence whether a convicted offender goes to prison or serves his sentence at home.
The most basic promise of criminal justice is that the law judges people for what they did, not for who their ancestors were.
Sierra Beverly’s death makes the consequences of abandoning that principle impossible to hide behind academic language about systemic factors and restorative approaches. Sierra was a child. Naomi’s life was permanently altered.
Their suffering does not become less serious because the man responsible can point to a particular ancestry.
“Reconciliation” will not be achieved by creating different rules for different races. It will be achieved, if at all, by insisting on one standard of justice for every Canadian.
John Carpay, B.A., LL.B., is President of the Justice Centre for Constitutional Freedoms (jccf.ca).
