OTTAWA (CP) - Canada puts far too many offenders behind bars and the courts must do their part to try to alleviate the situation, the Supreme Court says. The high court was commenting Friday in a ruling that also characterized as a crisis the over-representation of aboriginals in Canadian jails.
The court lamented the rate of incarceration, which at about 130 prisoners per 100,000 population [1995-1996] makes it the second - or third - highest in the world. [116 per 100,000  ranked 13th. USA ranked 1 consistantly.]
Canada is "distinguished as being a world leader in putting people in prison," the court said.
"This record of incarceration rates obviously cannot instil a sense of pride."
It's the first time the Supreme Court has levelled such criticism against incarceration rates.
The court is definitely sending a message to the justice system, Justice Minister Anne McLellan said Friday.
Ottawa recently changed the youth justice system and the Criminal Code to encourage alternative sentencing, she added.
"We incarcerate more young offenders at a higher rate than any other western democracy, and that should be of concern to us," she said in Edmonton.
"We need to, where responsible and appropriate, look at alternatives to incarceration."
Reform justice critic John Reynolds said while it's not the Supreme Court's job to make such pronouncements, it makes a valid point.
"The solution is really dealing with people before they commit crimes," he said in an interview.
"We put the money in worrying about incarceration and different programs once they've committed the problem. We don't look at how to prevent the problems from being created."
Bill Sparks of the John Howard Society of Ontario agrees.
"It's the use of criminal justice measures for what are really social problems," he said from Toronto.
"We've got cutbacks in education, in health care, but we do not have cutbacks in prison construction."
In the case at hand, the court was asked to interpret the intention of a Criminal Code section Parliament introduced in 1996 directing judges to consider alternatives to jail as much as possible, particularly for aboriginals.
In the ruling, the court left no doubt the section was intended to reduce incarceration rates by requiring judges to entertain alternatives to jail for any offender, especially for aboriginals who are over represented in Canada's prisons.
In 1997, aboriginals made up three per cent of Canada's population but 12 per cent of all federal prisoners.
"The figures are stark and reflect what may fairly be termed a crisis in the Canadian criminal justice system," the court said.
That's why judges, in sentencing aboriginals, must factor in their background, said the court.
Judges have a role in "remedying injustice against Aboriginal Peoples in Canada.
"They determine most directly whether other sentencing options may be employed which will play perhaps a stronger role in restoring a sense of balance to the offender, victim and community, and in preventing future crime."
The court made its comments in the case of Jamie Gladue of Nanaimo, B.C., who was sentenced to three years for stabbing her husband to death.
The trial judge had ruled the fact she was aboriginal shouldn't be a factor in determining her punishment because she lived in an urban area, not in an aboriginal community.
The Supreme Court upheld the sentence as fair considering the circumstances.
However, Gladue won in principle because the high court ruled the trial judge was wrong to dismiss her aboriginal background.
Gladue plead guilty to manslaughter and was convicted in February 1997.
Carl Johnson thought he was springing to the defence of a cause he believed in when he sent a couple of hotly worded e-mails to a computer mailing list he belonged to.
The United States District Court disagreed and now the man from Bienfait, Sask., is behind bars for death threats against two American judges and software mogul Bill Gates.
Johnson - described as an intelligent, witty computer amateur and one-time country singer prone to fits of profane rage - is at the centre of a legal debate over how far the right to privacy extends into cyberspace.
"There's real important questions about what you can and cannot say on the Internet," says Johnson's lawyer Gene Grantham, who plans to appeal Johnson's conviction in Tacoma, Wash.
Johnson was convicted last week and is in custody.
His troubles began in June 1997 when he distributed an e-mail to a group of high-end computer users who call themselves the Cypherpunks.
"The Cypherpunks are a pretty serious group with some sophisticated people who are in interested in cryptography," says Grantham.
Computer cryptography allows people sending messages to each other to keep them private. The U.S. government has concerns about such technology in private hands, fearing it may be used by terrorists or criminals.
"They don't want it to be impossible to ever intercept people's mail," says Grantham. "That means no one will be able to be guaranteed privacy from the government or maybe from big corporations."
The U.S. government began monitoring the Cypherpunks when a man named Jim Bell left a posting he called "Assassination Politics." Authorities saw it as an incitement to assassinate government officials. Bell is now serving time for violating the probation he received on charges related to that posting.
But when Bell was arrested someone using the name "Toto" began cranking up the rhetoric on the Cypherpunks mailing list.
Referring to one judge, Toto wrote: "You can (harm) some of the people all the time, and all of the people some of the time, but you are going to end up in a body bag or pine box before you manage to (harm) all of the people all of the time."
A U.S. investigator traced the Toto postings to Johnson, who holds Canadian and U.S. citizenship. He was arrested Aug. 18 while visiting Tucson, Ariz.
Neither of the e-mails about the judges was sent to them, although the messages were later forwarded. It was ruled in court that Johnson should have foreseen the judges would see his e-mails and his threats would therefore be delivered.
A threat against Gates - which Grantham characterizes as a "stupid joke" - was sent to him.
It was no joke to Seattle prosecutor Floyd Short. He finds Johnson's threats - and his support of Bell's posting - scary.
"I think he's certainly frightening," said Short.
Several Cypherpunks testified in Johnson's support but Short disputes that the case is about free speech on the Internet.
"He is a member of the list and he posted things to that list but I don't think his postings had much to do with the political discussions on the list. There seems to be a perception around the Cypherpunks that we're persecuting them and that is not the case."
Johnson, 49, is to be sentenced June 11 and could face up to seven years in jail.
He is also wanted on a warrant in Canada for leaving a fire bomb in the courthouse in Estevan, Sask., near Bienfait. The bomb was discovered by Johnson's nephew, who called police.
The bomb, described as an unsophisticated case containing bottles of gasoline, some shotgun shells and some wooden matches, didn't go off.
Johnson's family has told Grantham their relative suffers from Tourrette's syndrome, a mental condition that throws the sufferer into brief, uncontrollable fits of rage.
"I think he's sane," said Grantham. "But I think he has very pronounced, very obvious mental health problems."
Short agrees, saying he's seen Johnson do "very scary" things in the courtroom. But he doesn't think Johnson's condition is behind the threatening e-mails.
"They're not flame mail," he says. The e-mails are well written, even witty.
"They're not something you see when someone just dashes something off.
"There's a lot of intelligence there," says Grantham.
There was more controversy in Manitoba on Monday over a sexual assault case involving an underage girl.
There's no dispute over the verdict -- a man in his twenties pleaded guilty. But there are loud voices condemning an appeals court decision to reduce the sentence.
One came from the girl's mother who says her, was actually bullied into keeping quiet with threats that her family would be killed.
She has written a letter to Manitoba Justice Minister Vic Toews complaining about the way the Crown handled the case of Dean James Bauder.
Bauder pleaded guilty to having sex with the girl when she was 12 or 13 and he was in his 20s. But the Manitoba Court of Appeal deemed Bauder need not spend time in jail because the girl was sophisticated enough to consent.
The mother says her daughter was just an "impressionable young child" who was continually threatened and intimidated.
The Federation of Saskatchewan Indian Nations is calling for a public inquiry over the treatment of a 17-year-old aboriginal boy at a young offenders facility in Saskatoon.
Darren Winegarden, a lawyer and the director of the native umbrella group's justice commission, said the youth, who cannot be named under provisions of the Young Offenders Act, was hog-tied in a solitary-confinement cell, forced to listen to classical music, and left overnight.
However, Andy Field, the director of Kilburn Hall, where the boy was incarcerated, said he was shackled for less than two hours after he attacked one of the guards. The classical music was used to prevent the youth from communicating with other inmates, he said.
The youth wound up in solitary confinement because he ran 10 laps around a gym instead of the five requested by the guards, Mr. Winegarden said.
"He was uncomfortable with that, and began kicking the door," Mr. Winegarden said. Guards should have called in an elder to try and calm him down, he added. "Instead, they started blasting classical music at top volume, the kind of tactic that was used against [Panamanian dictator Manuel] Noriega by the American Army."
When that didn't work -- even with the lights out -- five guards came to the door with riot shields. The boy's feet and hands were handcuffed and chained together behind his back, he said.
Mr. Field said the boy was tied up for less than two hours -- with the lights turned on -- and only after all other avenues to calm him down had failed. Two days passed between the running incident, and the boy was placed in an isolation cell only after he repeatedly refused to apologize for disobeying the guards, and after he continually kicked the door of his own cell.
The classical music was played to prevent him from talking to another youth in the cell next to him, and to drown out the kicking noises, he said. Lights, which had been turned off because it was bedtime in the ward, were put back on before guards entered the room. Despite the shields, the boy grabbed the testicles of one of the guards and held them for at least 30 seconds, he said.
After the incident, the boy was charged with assault, and was taken to the police station. He was acquitted by a judge who criticized prison officials for his treatment.
Mr. Field, who testified at the trial, said he believed the guards followed correct protocol in dealing with the youth. "I support the staff's actions," he said.