In the early morning hours of June 22, 2018, the calamity of almost 150 years of government policy, actions and inactions affecting the Indigenous community of Berens River First Nation, bore down on a young Ojibwe man, Anthony McKay, and his mother, Shirley McKay.

Justice Martin in Paragraph 1 of R. v. McKay, 2020 MBQB 106

Judges have struggled with how to apply Gladue principles for decades now. Some seem to treat it as a sentencing discount, while others all but ignore it. A Queen’s Bench judge who frequently travels to northern Manitoba, however, seems intent on breathing life back into this much-maligned area of the law.

R. v. McKay, 2020 MBQB 106

On their face, the facts in R. v. McKay, 2020 MBQB 106 are as simple as they are tragic: a young man got drunk and beat his mother to death. But, like most cases, a closer look reveals a more nuanced picture full of violence and deprivation. As Justice Martin put it:

Mr. McKay, dreadfully drunk and in a foul mood, returned home and severely beat his mother — he does not know why he did that. She did not recover and died months later; another victim in a mass of slain Aboriginal women. He pled guilty to manslaughter; joining an appalling line of young Aboriginals ending up in prison.

Paragraph 1 of R. v. McKay

Justice Martin wound up sentencing Mr. McKay to four years and two months of incarceration, which had the effect of sending the offender to a provincial jail instead of a federal penitentiary. It also allowed Justice Martin to impose three years of supervised probation with a number of conditions attached.

More important than the specific sentence that Justice Martin arrived at, however, is how he arrived at it. Not only did he embark upon a careful analysis of the facts and the law (as should be expected), he closely considered the realities of life as an Indigenous person in Manitoba today.

The Gladue Analysis

Justice Martin took great care to apply the historical and current reality of colonization to the present-day realities that Mr. McKay would have experienced. He describes how the intergenerational impacts of government policy affecting Indigenous people took a particular toll on the offender and his family.

Just as importantly, he does not neglect to mention the fact that, as a result of this crime, the world has been deprived of yet another Indigenous woman who has died by violence.

Suffusing the judgment is an unmistakable empathy for both Mrs. McKay and Mr. McKay, as well as the rest of the McKay family and the community of Berens River. In the hands of Justice Martin, Gladue principles are not just a combination of section 718.2(e) of the Criminal Code of Canada and some cases. They are animating principles that go to the core of what it means to be morally responsible for an action.

Par For the Course

This level of sophistication and empathy is to be expected from a judge as respected as Justice Martin. As mentioned previously, he regularly travels to northern Manitoba to sit in the Thompson Centre, which deals with a significant number of Indigenous accused from remote areas.

Justice Martin is also the only sitting judge, that I’m aware of, to ever go to the trouble of traveling to a remote reserve in northern Manitoba to deliver a judgment. In the case of R. v. Okemow, 2020 MBQB 32, Justice Martin arranged for the Manitoba Court of Queen’s Bench to deliver plain-English reasons in the remote community of God’s Lake Narrows.

In my view, this level of commitment and dedication to humanizing the criminal justice system is a requirement of reconciliation that few criminal justice participants live up to.

Final Thoughts

The eloquence of the McKay decision is perhaps best captured by Justice Martin’s closing remarks, where he writes:

…I end near where I opened this decision. Occasionally, it is incumbent for a judge to underscore systemic issues. There is ample knowledge that Indigenous people are still disproportionately affected by serious crime and are still disproportionately incarcerated, by a huge margin. I see it daily as I go about my duties. Aside from this case, I currently have two other Indigenous men to be sentenced this fall for killing Indigenous women. Like so many other cases, this case is troubling, not only for its specific facts but because it reminds that core issues affecting many in the Indigenous population are not really being addressed sufficiently or urgently enough. Many in this and the next generation of Indigenous people are at risk. The ruin of the First Nations and peoples of Canada is not just statistics — as seen here, it is real pain. As a human, Mrs. McKay deserved better. And, like anyone born in this bountiful country, her son, her killer, deserved a better start, a better chance, in life.

Paragraph 40 of R. v. McKay

I certainly couldn’t put it better than that.

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