It makes sense for all citizens of a country to be treated equally under the criminal laws of the country. Unfortunately, that is not the case in Canada. The Criminal Code of Canada is not the same for aboriginals as it is for non-aboriginals.

In 1996, the Royal Commission on Aboriginal Peoples called Canada's justice system a "crushing failure" when it comes to aboriginals. That year, politicians amended Canada's Criminal Code (cc. ss. 718.2(e)), allowing judges to find alternatives to jail for all offenders when it is reasonable to do so, paying "particular attention to the circumstances of aboriginal offenders" and to consider a criminal's "Indianness". In other words, Justice had her blindfold removed, and she must now consider race in sentencing.

Jamie Gladue was convicted of manslaughter in the 1996 stabbing death of her common-law husband. The British Columbia Supreme Court rejected her argument that her Indian status should be a consideration in her sentence because she did not live on a reserve. The British Columbia Court of Appeal rejected the notion there was a distinction between on-reserve and off-reserve natives, but still found her Indian ancestry irrelevant to the sentence.

The Supreme Court of Canada heard the case and used it to remind judges that they should be "particularly attentive to circumstances of aboriginals." Furthermore, differences in culture, language and socio-economic opportunities can create "unique" circumstances for aboriginal people, and in some cases, these may mean that alternative or shorter sentences are more appropriate than jail. In the case of Jamie Gladue she received three years for killing her common law husband, of which only six months were served behind bars.

Did the victim's life in this case mean less than a non-native life

In 2000, the Ontario Superior Court used the same logic in sentencing two black women convicted of drug smuggling. Justice Hill concluded that the offenders in this case were the real victims. Because of their gender, race and socio-economic circumstances, reasoned the judge, they were vulnerable to the influence of the drug trade. Thus, he decided to spare them jail time in favour of house arrest.

Thankfully, the case was overturned on appeal last week. In the decision Justice David Doherty wrote, "The blunt fact is that a wide variety of societal ills - including, in some cases, ethnic and gender bias - are part of the causal soup that leads some individuals to commit crimes. If those ills are given prominence in assessing personal culpability, an individual's responsibility for his or her actions will be lost."

The above case sets yet another precedent. Based on the new precedent the Criminal Code of Canada should be amended to remove the section noted earlier. If courts can see the logic that preferential treatment under the law is wrong, then surely lawmakers - our politicians - must see the logic

Regrettably the answer is no. Earlier this week a Regina Provincial Court Judge Linton Smith believed his "hands were tied" by the Gladue decision when he ordered a sentencing circle for an aboriginal man, Fenton Cappo. Cappo was charged with causing a fatal collision that killed two people.

In an attempt to right past wrongs, Canadians have created policies that harm the very people they have been designed to benefit. By amending the Criminal Code in 1996, the federal government sent a message to aboriginals that breaking the law is no big deal.

The Charter of Rights and Freedoms mandates equality for all Canadians. Consequently, the Criminal Code of Canada must apply to all citizens equally. In other words, if you do the crime, do the time.