Apparently Laws Do Not Apply To Canadian Indians

This is an older news article from The National Post, but I republish it here because it pisses me off so very badly.

CAYUGA, Ont. — For beating a non-native builder to within an inch of his life during the fiery native occupation in nearby Caledonia, a young aboriginal man was sentenced to less than two years in jail, plus time served – a punishment that leaves the victim’s family demanding an inquiry into how the courts treat First Nations offenders.

Ontario Superior Court Judge Alan Whitten cited Friday the sad legacy of residential schools and the disproportionately large population of incarcerated aboriginal offenders as reasons why he did not give Richard Smoke a harsher sentence for an attack he described as “senseless and vicious” and “just a notch below culpable homicide.”

The reduced sentence for such a brutal attack – with a stick of lumber on a defenceless man that rendered builder Sam Gualtieri, 56, brain damaged – outraged the Gualtieri family.

“We’re extremely disappointed. His sentence is so short in comparison to the damage from the attack. My brother’s sentence is for a lifetime,” said Joe Gualtieri, Mr. Gualtieri’s brother.

“Being aboriginal should have some consideration but it seems that it was all the consideration. Now this stage is over, we are going to be looking for answers. If the judge can’t send a message to the community then we’ll have to look for some other way.”

Crown attorney Alex Paparella had asked for a penitentiary term of six to eight years for the aggravated assault and break and enter charges against Smoke, from the Six Nations reserve.

But Smoke’s lawyer, Sarah Dover, said her client had been profoundly affected by a culture of racism and urged Judge Whitten to heavily weigh the “aboriginal perspective” as a mitigating factor leading to a “below par” sentence.

Smoke was damaged by the “intergenerational impacts” of the residential school system, through which both sides of his family passed, she said. The attack should be viewed “against the backdrop of discord between the Canadian government and aboriginal people.”

Judge Whitten listened patiently to arguments as what was to have been a one-day plea and sentencing dragged on over three days.

Adrian Humphreys/ National Post

Adrian Humphreys/ National PostSam Gualtieri, middle, with his wife, Sandy, and brother, Joseph, fume outside court Friday.

He acknowledged the special circumstances of aboriginal sentencing but also the need for a public denunciation.

“Sentencing requires a balance of societal interests and the personal circumstances of an accused. There is no one-size-fits-all approach,” Judge Whitten said Friday before passing sentence.

He had harsh words for Smoke.

“It is a very serious and grave offence. We are all fortunate that it was not worse,” he said, saying Smoke had beaten Mr. Gualtieri on the head with a stick of lumber, gripped in both hands, and was winding up, “as if in mid-swing,” when stopped by others.

Medical notes say Mr. Gualtieri was “almost killed.”

“Mr. Gualtieri will live life as a brain damaged man,” said Judge Whitten.

Although noting the special needs of aboriginal offenders, as he is required to do after the 1999 Supreme Court ruling in R. v. Gladue, he said the Gladue declaration was not a “get-out-of-jail-free card.”

Nor, said Judge Whitten, was this attack part of the wider native land claim: “There was no necessity for this crime… it didn’t advance any ideology or idea.”

Although the Sept. 13, 2007, beating of Mr. Gualtieri stemmed from the violent occupation it was not a direct part of it, court heard earlier.

Caledonia became the focus of national attention in 2006 when native protesters occupied Douglas Creek Estates, a large residential subdivision under construction, as part of an ongoing land dispute.

Smoke lived full-time at Douglas Creek Estates, an area described in civil proceedings as a “lawless oasis.” As violence ebbed and flowed, a spillover demonstration a year later engulfed the nearby Stirling Wood residential development, where Mr. Gualtieri was building a house for his daughter.

Mr. Gualtieri arrived at the house with three men from his work crew to check on it after news spread of renewed trouble. They saw shadows moving inside and Mr. Gualtieri rushed to evict the intruders.

By the time the rest of the crew got inside, Smoke was standing with a 2×4 over Mr. Gualtieri, as the builder lay bloody and battered on the floor. One of the men described the disturbing whacking sound of wood hitting flesh.

Mr. Gualtieri suffered broken bones, cuts and a brain injury.

His memory is shaky, balance unsteady, speech slow and reading ability impaired. His ears constantly ring and noise bothers him intensely; he has been unable to work in construction since.

Judge Whitten chastised Smoke for displaying “pride” in the attack by afterward calling out at an onlooker: “Do you want to end up like your buddy inside?”

He gave Smoke a two-year and 11-month sentence, reduced by the equivalent of 11 ½ months of pre-trial custody. That makes his final sentence less than two years, meaning he will serve his time in a provincial jail rather than a federal prison, followed by three years of probation during which he is banned from entering the occupied Douglas Creek property.

Afterward, Mr. Gualtieri said the judge was too lenient.

“I am totally disappointed. I was expecting him to get four years – and that would have been giving the guy a break. I feel like I have been injured again.”


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