12/27/2011 02:59 EST | Updated 02/26/2012 05:12 EST

Smoke Sentence a Disgrace

Maybe Ontario Superior Court Judge Alan Whitten thought he was doing his bit to right wrongs of the past when he sentenced Six Nations resident Richard Smoke to less than two years in jail for nearly beating a Caledonian man to death.

It's true Judge Whitten called Smoke's break-and-entry and beating of builder Sam Gualtieri with a two-by-four a "senseless and vicious" act that was "a notch below culpable homicide."

But because residential schools for Indians have a bad record, Judge Whitten was more lenient towards Smoke than, say, if victim Sam Gaultieri had defended his house by doing to Smoke what Smoke did to him.

Of course, we all know that the residential school system -- misguidedly designed to educate Aboriginal children so they could compete and survive in a non-aboriginal Canada--really encouraged children to be "senseless and vicious."

Then again, Judge Whitten was probably aware that something like 4% of Canada's population is aboriginal or Metis, and that 21% of Canada's prison population is aboriginal.

Again, one assumes this imbalance is facilitated by those damned residential schools, and not because the 21% committed more crimes than other Canadians did.

In the case of Smoke and the Caledonia troubles dating back to 2006, the OPP was specifically ordered to crack down harder on non-aboriginal residents, and to go easy on the Six Nations protestors from the Douglas Creek Estates which has been described as a "lawless oasis."

The beating of Gualtieri occurred when he arrived with workman at a house he was building for his daughter, and saw people inside. He went in to roust them out. Instead, Smoke took a two-by-four to him and kept giving him two-handed whacks until he was stopped. Gualtieri suffered broken bones and brain injury, and today has unsteady balance, slow speech, and impaired reading.

Gualtieri's brother Joe told the National Post that he's disappointed in the soft sentence to Smoke: "My brother's sentence is for a lifetime."

No question Judge Whitten was appalled at the crime -"very serious and grave" - and that for the rest of his life Gualtieri "will live as a brain damaged man."

Since Smoke was apparently proud of beating of Gualtieri, and apparently threatened others at the time, it's hard to see how the mild sentence will persuade Smoke or others like him to refrain from lawless behaviour--especially when the OPP apparently are fearful of aggravating aboriginals, or having another Dudley George incident, as happened at the Ipperwash stand-off.

The Supreme Court and others have noted that special circumstances are involved in many aboriginal offenses, and that is fair enough when they apply to aboriginal communities. Cultural values differ in parts of the country.

But in the urban south, surely a crime is a crime, and to reward some offenders with leniency, simply because they are aboriginal, is unfair to society in general and in the long run, unfair to law-abiding aboriginals.

In the case or Richard Smoke, the Crown had recommended six to eight years - itself a generous sentence for the crime involved. The effect of Judge Whitten's sentence will not reassure people in the Caledonia region, and it certainly doesn't reassure the Gualtieri family, who had nothing to do with aboriginal issues.

Can we now expect courts to go light on so-called "honour killings" because they are done mostly by Muslims, and we don't want to offend cultural sensitivities?