Spotlight on Gladue: Challenges, Experiences, and Possibilities in Canada’s Criminal Justice System

3. Challenges and Criticisms in Applying s. 718.2(e) and the Gladue Decision

Despite the Court’s decision in Gladue, and its subsequent call to action in Ipeelee, Gladue principles are perceived by Indigenous offenders to be ineffective and inconsistently applied (Iacobucci 2013; Pfefferle 2008 Roach 2009). Non-Indigenous offenders have benefited more from the 1996 sentencing reforms than Indigenous offenders, and overincarceration has worsened since Gladue (MacIntosh and Angrove 2012, p. 33).

A 2008 study conducted by Welsh and Ogloff (2008) evaluated the impact of s. 718.2(e) by analyzing a sample of 691 sentencing decisions, chosen both before and after the enactment of s. 718.2(e). The analysis sought to determine the extent to which Indigenous status was correlated with judges’ sentencing decisions. Using hierarchical regression analyses, the study concluded that Indigenous status alone did not significantly predict the likelihood of receiving a custodial disposition relative to aggravating and mitigating factors or sentencing objectives cited by judges. Instead, aggravating and mitigating factors, such as offence seriousness, prior criminal history and the offender’s plea, were significantly related to sentencing decisions.

Welsh and Ogloff (2008) suggest that s. 718.2(e) and its interpretation by the Supreme Court “underestimate the true complexity of the over-representation problem” (p. 512). The authors note that interactions between Indigenous status and the aggravating and mitigating factors mentioned may explain why Indigenous status alone does not seem to significantly influence sentencing decisions. They echo critiques made in the aftermath of Gladue that sentencing may not be the appropriate means to remedy overrepresentation. Indeed, the Court’s response to this critique is one that other authors have also found dissatisfying (MacIntosh and Angrove 2012; Gevikoglu 2013). Constance MacIntosh and Gillian Angrove write,

“The Court explains that ‘sentencing judges can endeavour to reduce crime rates in Aboriginal communities by imposing sentences that effectively deter criminality and rehabilitate offenders’, but there is no further explanation as to how this will practically happen (p. 130).”

Gladue should not be regarded as a panacea for overrepresentation, but rather as a contribution to the efforts required. Nonetheless, questions about how sentencing can address overrepresentation point to the challenges of implementing Gladue principles in a meaningful and effective way. Although a number of programs and initiatives, subsidized by the federal and provincial governments, support efforts to reduce overrepresentation through sentencing, Parliament’s goal of eliminating Indigenous overrepresentation within a generation remains far from fulfillment. This section will explore the challenges to the implementation of Gladue principles, as well as critiques of whether Gladue principles are a sufficient or appropriate solution.

3.1 Challenges to Implementation

3.1.1 “Reconciling” Retributive and Restorative Approaches

For Roach and Rudin (2000), Gladue was significant because it recognized the restorative purpose of sentencing codified in s. 718.2, which added reparation to victims and the community, and the promotion of responsibility in the offender alongside the traditional purposes of denunciation, deterrence, separation, and rehabilitation. The addition of restorative justice to the principles of sentencing was meant, in part, to address the criminal justice system’s over-reliance on incarceration (Roach and Rudin 2000, p. 363).

The Court offers a general definition of restorative justice in Gladue:

“In general terms, restorative justice may be described as an approach to remedying crime in which it is understood that all things are interrelated and that crime disrupts the harmony which existed prior to its occurrence, or at least which it is felt should exist. The appropriateness of a particular sanction is largely determined by the needs of the victims, and the community, as well as the offender. The focus is on the human beings closely affected by the crime (para 71).”

Critique in the aftermath of the Gladue decision found the Court’s emphasis on restorative justice to be contradictory with the traditional sentencing principles of denunciation, separation, and deterrence. Some authors viewed retributive and restorative approaches to justice as irreconcilable – essentially arguing that judges would not be able to both adopt Gladue principles and adhere to traditional sentencing principles (Haslip 2000; Pfefferle 2008).

However, the statement that traditional sentencing purposes remain relevant seems only to indicate that Gladue does not force judges to use a restorative sanction in every case involving an Indigenous offender, to the detriment of deterrence, denunciation, and separation. The essential direction is that judges consider, to the extent possible, different alternatives when sentencing an Indigenous offender. In addition, the Court was clear that restorative sentences should not be seen as more lenient sentences, as there is “widespread consensus” that incarceration does not necessarily achieve the traditional goals of sentencing (para 57, 72).

Are Conditional Sentences Restorative?

Along with s. 718.2(e), conditional sentences were introduced into the Criminal Code during the 1996 legislative reforms. There is no consensus on whether conditional sentences should be seen as a restorative suggestion. For example, Quigley (1999) views conditional sentences as a helpful tool that would allow judges to reconcile retributive and restorative approaches to sentencing. On the other hand, Williams (2008) considers conditional sentences to be primarily in line with criminal law’s punitive purposes of denunciation and deterrence, rather than serving a rehabilitative purpose. Williams (2008) argues that conditional sentences are an alternative to incarceration that relocates imprisonment “from the dedicated institutions to the defendant’s community” (p. 84-85). They are usually lengthier than carceral sentences, and accompanied by “stringent, punitive restrictions on liberty,” breaches of which would result in the offender’s incarceration (Williams 2008, p. 84-85).

Roach and Rudin (2000) similarly caution against the conditional sentence’s potential of “net-widening” (p. 375). They suggest that post-Gladue, judges are more likely to impose conditional sentences, which may have onerous and unrealistic “healing” conditions. Indigenous offenders would then “find themselves disproportionately breached and imprisoned, perhaps for a longer period than if they had been sent directly to jail,” which would worsen, rather than reduce overrepresentation (p. 375).

Nonetheless, conditional sentences have the potential to offer greater flexibility and rehabilitation. In her analysis of the application of Gladue principles in sentencing Indigenous women, Cameron (2008) questioned why conditional sentences were not given in the cases of R v Norris and R v Moyan. In these cases, a conditional sentence would have afforded both women the ability to parent their child, work, as well as participate in education and treatment programs.

Defining Restorative Justice as it applies to the Criminal Law

The confusion around reconciling retributive and restorative approaches to justice points to confusion around the meaning of restorative justice itself, as applied to the criminal law. Justice Melvyn Green (2012) explains that restorative justice is most often applied in Canadian Courts as a model “focused on reparative or compensatory sanctions” (p. 8). The language of Gladue, however, suggests an alternate view that sees restorative justice as “a comprehensive theory of justice in itself,” which does not see rehabilitation and reintegration as sentencing objectives to be balanced against deterrence and denunciation. Instead,

“These conventionally opposing principles are facets of a holistic ‘restorative’ exercise that includes the offended community and the community of the offender in the process of adjudication as well as the determination of appropriate sanctions” (p. 8).

In other words, restorative justice is not just one consideration or one kind of sanction, but rather an alternate theoretical approach to justice. While there is no universally agreed upon definition of restorative justice, the Federal-Provincial-Territorial Working Group on Restorative Justice defines restorative justice as:

“An approach to justice that focuses on addressing the harm caused by crime while holding the offender responsible for his or her actions, by providing an opportunity for the parties directly affected by crime – victim(s), offender and community – to identify and address their needs in the aftermath of a crime.”Footnote 13

Chartrand and Horn (2016) define restorative justice as:

“An approach to crime and conflict that brings the victim, the offender, members of the larger community, and oftentimes professional service providers together into a non-hierarchal setting in order to collectively address a harm that was committed and to set a path towards reconciliation between all relevant parties. (p. 3)”

In practice, as section 4 will explore in greater detail, restorative justice programs tend to be community-based. While there is no single approach to restorative justice, common types of programming include victim/offender mediation, family group conferencing, and various “circle” programs (Chartrand and Horn 2016).

Green (2012) sees Gladue as placing a duty on all justice system participants – not only sentencing judges – to work towards a more restorative process. The comprehensive restorative justice theory, which focuses on community repair and healing, is also seen as more consistent with Indigenous approaches to justice (p. 8).Footnote 14

Restorative justice in relation to Indigenous legal tradition

In its discussion of Indigenous sentencing approaches, the Supreme Court specified that it did not want to imply that all Indigenous communities shared the same understanding of justice or the same approaches to sentencing.Footnote 15 However, Gevikoglu (2013) argues that by characterizing Indigenous legal tradition as primarily restorative, the Court conflates Indigenous justice with Western notions of restorative justice, and with each other. The language in Gladue sets up Indigenous approaches to criminal justice in opposition to the Canadian Criminal Justice system, which has been primarily retributive. Indeed, aforementioned concerns about the difficulty of reconciling retributive and restorative justice is consistent with Gevikoglu’s analysis, even though Indigenous and Canadian approaches to criminal justice do not necessarily contradict. For example, Professor Michael Jackson has laid out an alternative framework of Indigenous justice which complemented, instead of contradicting the Canadian criminal justice system.

Gevikoglu’s concern is that Western notions of restorative justice may not be sufficient to ensure that Indigenous offenders are sentenced in a way that is “appropriate in the circumstances for the offender because of his/her aboriginal heritage or connection” – a key factor in remedying over incarceration, according to Gladue. In Ipeelee, the Court states that sentencing options other than incarceration can play “a stronger role in restoring a sense of balance to the offender, victim, and community, and in preventing future crime” (para 128). Yet, it does not discuss what options other than incarceration might be, it does not refer to anything from the Inuit or Dena legal traditions, and ends up just reducing both Ipeelee and Ladue’s sentences. While restorative justice allows for practices like diversion and sentencing circles to exist in certain spaces within the framework of the criminal justice system, Indigenous communities are not afforded much more autonomy in the sentencing process (Gevikoglu 2013).

Although a detailed comparative analysis of the relationship between restorative justice and Indigenous legal tradition is outside the scope of this report, a number of key differences are highlighted here. Chartrand and Horn (2016) note that restorative and Indigenous legal tradition generally have similar underlying principles, in that both can be described as aiming to achieve community healing, reconciliation, and the reintegration of the offender. However, there are several material differences between the two.

First, Indigenous legal traditions are generally a source of complex mechanisms, both proactive and reactive, that produces and maintains stability and order in Indigenous communities. Prior to the imposition of Western law, Indigenous legal tradition “shaped behavior, guided relationships, and addressed conflict” through kinship – which Chartrand and Horn describe as producing “multidirectional legal obligations towards everyone and everything” (2016, p. 6). While Indigenous legal traditions are diverse, a common theme through most are the idea of law being interconnected, intertwined, and rooted in relationships between people and to nature (p. 5-6). In addition, Indigenous legal traditions still had a retributive element - where kinship responsibilities were disregarded, communities utilized sanctions and penalties, which were generally enforced by family or community members (p. 7). Finally, Indigenous legal traditions placed a high importance on spirituality (p. 13).

As the imposition of Western law and colonial policies have displaced and disrupted kinship practices (p. 11), both the Truth and Reconciliation Commission and the United Nations Declaration on the Rights of Indigenous Peoples have called for the “recognition, revitalization, and full integration and implementation” of Indigenous legal tradition alongside Canadian law (p. 8). Chartrand and Horn (2016) trace an ongoing relationship between Indigenous and Restorative justice – Indigenous legal tradition was influential in the early development of underlying principles, values, and programs of restorative justice. Restorative justice has similarly influenced the programs and processes of modern Indigenous justice – where Indigenous legal traditions would have been punitive historically, programs today take a more restorative approach. As both Indigenous and Restorative justice continues to be integrated into the Canadian criminal justice system, the relationship between the two will undoubtedly continue to evolve.

3.1.2 Judicial Discretion Limited by Mandatory Minimum Sentences

Due to the addition of mandatory minimum sentences to the Criminal Code in recent years, many authors have expressed concern that Gladue and Ipeelee may see very limited application.Footnote 16 Parkes (2012) writes that mandatory minimums are “deeply at odds” with the principles expressed in Ipeelee: that sentencing should be a flexible and highly individualized process to ensure proportionality (p. 22). Although judges still retain discretion over some detention decisions, such as bail hearings, their “hands are tied” in many areas and they have limited ability to craft sentences that consider the “unique circumstances” facing Indigenous offenders (MacIntosh and Angrove 2012, p. 34).

With mandatory minimums, as access to conditional sentences is also restricted, discretion in sentencing shifts from judges to Crowns prosecutors (Rudin 2012, p. 4-5). In deciding the offence that an accused is charged with, prosecutors indirectly determine the length and type of sentence that an offender will receive (Rudin 2012). This is particularly troubling because unlike a judge’s sentence which that can be appealed, a prosecutor’s decision can only be reviewed for abuse of process (Parkes 2012, p. 25). While there is no empirical research in Canada yet on the effects of this transfer of discretionary power, in the United States, mandatory minimums have had disproportionately adverse effects on racialized minorities (Parkes 2012). Gladue and Ipeelee acknowledge both the blatant and systemic discrimination faced by Indigenous people in the criminal justice system. Despite the lack of empirical data, it is clear that Indigenous people “are less likely than other accused to benefit from the exercise of prosecutorial discretion” (Parkes 2012, p. 25; Rudin 2012).

Due to the disproportionate impact that mandatory minimum sentences will have on Indigenous people, Parkes (2012) sees potential s. 7, s. 12, and s. 15 Charter challenges being raised by Indigenous offenders. Rudin (2012) similarly sees the potential for s. 15 Charter challenges based on Gladue principles:

“The existence of systemic discrimination towards Aboriginal people means that section 15 requires that judges ensure that in making the decision they alone are empowered to make -- the sentencing decision -- they are not contributing to the discrimination faced by Aboriginal people (p. 8).”

3.1.3 Inadequate Resources

The implementation of Gladue principles require additional resources at every step of the sentencing process, as additional obligations are required of judges, defense counsel, prosecutors, correctional officials, as well as community organizations. Judges need additional information about the Indigenous accused’s background, as well as available and appropriate alternatives to incarceration or to the traditional sentencing process. Indigenous justice initiatives and programs also need to exist and be adequately resourced in the offender’s community. The lack of resources – both in the preparation of pre-sentence information, and in the availability of alternatives to incarceration – is a crucial impediment to remedying over incarceration.

3.1.3.1 The preparation of Gladue reports

Gladue requires sentencing judges to consider systemic and background factors of the offender, and the types of sentencing procedures and sanctions that are appropriate in the circumstances. In the aftermath of Gladue, some authors were uncertain about who fell under s.718.2(e). There was initial confusion about whether and how systemic and background factors were relevant to the offences of individuals who were not “culturally” or “visibly” Indigenous (Pfefferle 2008). Subsequent case law, particularly Ipeelee, has been clear that no causal link needs to be established between an offender’s Indigenous background and the offence committed. Gladue factors must be considered for all self-identified Indigenous people – regardless of whether they have status, live on- or off-reserve – unless the individual waives the right to have such factors considered (Parkes et al. 2012). In a recent decision, the Ontario Court of Appeal found that it was an error to dismiss the offender’s Indigenous background, even though he was adopted by a white family and had no “apparent” connection to his heritage (R v Kreko).

It is undoubtedly challenging for judges to determine the relevant background factors in sentencing, especially as the experiences of Indigenous offenders are diverse and dynamic in an ever-changing society. For example, Brian Pfefferle (2008) points out that courts often dismissed Gladue factors when an offender’s background is criminal, failing to take into account the effects of living in Indigenous communities with high crime rates. The provision of pre-sentence information is such a key determinant of the effectiveness of Gladue that Rudin (2008) considers it a reason that s. 718.2(e) has not reduced overrepresentation.

In some jurisdictions, GladueReports are written with the specific purpose of providing information relevant to s. 718.2(e). These reports highlight the circumstances of the Indigenous offender and how these circumstances relate to the systemic factors that may be responsible for the individual’s involvement with the criminal justice system (Rudin 2005). Unlike the average pre-sentence report, Gladue Reports are written after a number of extensive meetings with an “empathic peer”, a process that is often challenging, but also restorative (Green 2012). They provide the offender with the opportunity to “critically contemplate his or her personal history and situate it in the constellation of family, land and ancestry that informs identity and worth” (Green 2012, p. 9).

Currently, independent Gladue Reports are available in British Columbia, Alberta, Ontario, Québec, Nova Scotia, and Northwest Territories (Department of Justice Canada 2013). In Manitoba, a few private agencies prepare Gladue Reports, at the request of and with funding from Legal Aid. In Saskatchewan, there was a pilot project involving assistance from British Columbia in providing training for writing Gladue Reports. By the completion of the two year pilot project, 25 Gladue Reports had been written. A final phase of the pilot project is still underway; capturing oral histories from Elders is underway by the University of Saskatchewan. The University intends to maintain this database of oral histories, and make it available free of charge to those tasked with preparing Gladue Reports. Prince Edward Island similarly is in the process of instituting a pilot program. The remaining provinces and territories have no organized and funded Gladue Report-writing program, or no Gladue Reports at all. It is important to note that even where the service is available, the accessibility of Gladue Reports is subject to the availability of resources, varies greatly amongst these jurisdictions, and is far from widespread implementation. Specialized Gladue Courts spend significantly more time on each case than other courts in the same city (Knazan 2003). At the Gladue Court at Old City Hall in Toronto, due to the additional time and resources needed, Gladue Reports are only made when Crown is seeking a sentence of at least 90 days for an out-of-custody client or 6 months for an in-custody client (Aboriginal Legal Services Toronto). In British Columbia, Gladue Reports can only be prepared by people who have been trained by the Legal Services Society. Cuts to legal aid from 2001-onwards has placed significant constraints on the ability of the Legal Services Society to authorize GladueReports for Indigenous offenders, which are now only funded by legal aid in limited circumstances (Barnett and Sundhu 2014).

In jurisdictions without Gladue reporting programs, no independent information will be submitted by the defence on behalf of the accused. Instead, information about the offender’s background is added to pre-sentence reports, generally prepared by correctional services (Department of Justice Canada 2013). Without specific training and awareness for the unique background circumstances of Indigenous offenders, inadequately prepared information can actually undermine Gladue principles and perpetuate systemic discrimination (Parkes 2012). Defence counsel, probation officers, and parole officers do not always have the cultural competency or training to elicit a complete picture of the circumstances of the offender (Rudin 2005; Rudin 2008). In some jurisdictions, probation officers are entitled to a set number of hours to prepare Gladueinformation (Rudin 2005; Rudin 2008). This is an issue especially because Indigenous individuals may be reluctant to relate their experiences to court personnel, given the distrust that characterizes the relationship between Indigenous peoples and the justice system (Turpel-Lafond 1999).

Furthermore, Parkes (2012) argues that adding Gladue factors to pre-sentence reports is ineffective because the latter has a fundamentally different purpose. Pre-sentence reports are meant to provide risk assessment to the court of the offender’s likelihood to reoffend. In contrast, a Gladue Report provides “culturally situated information which places the offender in a broader socio-historical context… and reframes the offender’s risks/need by holistically positioning the individual as part of a community and as a product of many experiences” (Parkes 2012, p. 24).

Parkes (2012) explains that R v Knott illustrates how inadequate Gladue information can actually undermine efforts to reduce over incarceration. In writing the decision to order a suspended sentence for an Indigenous man convicted of aggravated assault, Justice McCawley addressed the inadequacy of the pre-sentence report that was prepared. Justice McCawley noted that although Mr. Knott’s pre-sentence report mentioned general Gladue factors, they were not linked to his particular experiences – such as the crucial factor that his grandparents were residential school survivors (para 19). The report also concluded that Knott was at a high risk to reoffend, but Justice McCawley found the assessment to be erroneous because the factors considered were not put into context:

“When one puts some of the concerns which might otherwise carry significant weight in context a very different picture emerges. Mr. Knott was found to be supportive of crime due to his reported antisocial behaviour and to demonstrate “a pattern of generalized trouble in the sense he reported financial problems, has never been employed for a full year, has been suspended and expelled, has two non-rewarding parents, could make better use of his time and has few anticriminal friends.” In my view these are exactly the kinds of systemic issues that need to be considered in the appropriate context.

For example, Mr. Knott's lack of a history of employment to a large extent can be explained by his taking on the care of his grandparents who raised him and, to all intents and purposes, were his parents...” (para 23-24)

As R v Knott demonstrates, when Gladue factors are added to pre-sentence reports, but not contextualized in the experience of Indigenous communities, they are actually seen as risk factors justifying incarceration. As such, drawing probation officers’ attention to these factors may unintentionally discriminate against Indigenous offenders instead of reducing over incarceration. This perhaps explains why 76% of offenders sentenced to a repeat offence received a shorter sentence when a GladueReport was prepared, compared to offenders without GladueReports (Barnett and Sundhu 2014).

Thus, although Gladue information must always be requested where the liberty of an Indigenous accused is at stake, such requests are inconsistent and reports may be written improperly, which may actually undermine Gladue principles (Pfefferle 2008). This significantly hinders judges’ ability to consider background and systemic circumstances affecting Indigenous offenders in order to determine appropriate bail conditions and sentences.

3.1.3.2 Lack of appropriate alternative processes or sanctions

Gladue states that regardless of an Indigenous accused’s place of residence, and even if community programs are not readily available, judges must make the effort to find alternative processes or sanctions. Judges are challenged to create new sentencing options and to adapt existing measures such as counselling, community service, fines, treatment and monitoring programs to the reality of Indigenous offenders.

However, the lack of culturally appropriate sentencing processes and alternatives to incarceration undoubtedly affects the effective implementation of Gladue principles (Welsh and Ogloff 2008; Haslip 2000; Parkes et al. 2012). Roach and Rudin (2000) note, for example, that in R v Wells, the offender was sentenced to imprisonment instead of a conditional sentence in part because of the lack of anti-sexual assault programming in his immediate community. This issue is particularly acute for individuals living in urban areas who may have little or no connection to an Indigenous community (Pfefferle 2008). Without adequate resourcing of alternatives to imprisonment, even the implementation of thorough Gladue Reports across Canada would likely have little effect in reducing overrepresentation (Truth and Reconciliation Commission of Canada 2015).

As section 4 will explain further, a number of Gladue Courts have been set up, notably in Ontario and in British Columbia. Generally, these courts allow Indigenous accused who plead guilty to be diverted to an alternative community-based sentencing process that decides upon a “plan of care” for the individual (Green 2012). Where Gladue Courts do not exist, an Indigenous accused would go through the traditional sentencing process, the result of which may be a conditional sentence. There is a crucial difference between the two sanctions: whereas non-compliance with a condition in a “plan of care” is brought back to the Community Council, breach of a conditional sentence likely results in incarceration (Roach and Rudin 2000).

Justice Melvyn Green (2012) is critical that even at the Gladue Court at Old City Hall, if an accused person is not diverted to Community Council and does not have a Gladue Report prepared, they will receive a “boilerplate” plan of care. He argues that to truly adhere to Gladue principles requires more than just referring the individual to Indigenous programming, where it is available. Rather, it

“[r]equires the inclusion of First Nations and Inuit peoples in the creation and practice of models of criminal justice that are grounded in and legitimated by customary law and tradition.” (p. 10)

Considering the diversity of Indigenous communities and experiences of Indigenous offenders, a multitude of programs and initiatives will need to be established as no one model of Indigenous justice will uniformly apply to all. Turpel-Lafond (1999) warns that without proper resourcing, successful Crown appeals of “unduly lenient” Gladue sentences will undermine the development of alternative sanctions (p. 375). It is also important that resources are distributed holistically, across programs at all steps of the criminal justice process (p. 376). In return, successful implementation of Gladue will diminish resources spent on incarceration (Roach and Rudin 2000).

3.2 Critical Responses to the Application of Gladue

3.2.1 Impact on the Community

Prior to Gladue, the Alberta Court of Appeal had expressed the view that s. 718.2(e) could be detrimental to the safety of victims of crime (Roach and Rudin 2000). Such a view, of course, assumes that incarcerating the offender will be safest for victims, when in reality, short and recurrent prison sentences have done little to ensure the safety of the victim and of the community (Roach and Rudin 2000). Just as restorative approaches to sentencing should not be viewed as more “lenient”, they should also not be assumed to be less “safe.” In theory, restorative justice balances the needs of offenders, victims, and community (R v Gladue, para 71-72).

There is nonetheless concern that making Indigenous identity a determining factor in sentencing will mean that Indigenous communities, which already suffer from higher than average crime rates, will receive less protection from the law (Gevikoglu 2013). As Justice Rothstein writes in his dissenting opinion, “Aboriginal communities are not a separate category entitled to less protection because the offender is Aboriginal” (R v Ipeelee, para 131). Gevikoglu (2013) argues that by framing the opposition to Gladue as based in intolerance, and only addressing “race-based discount” critiques in Ipeelee, the Court overlooks the concerns of Indigenous communities.

As R v Morris demonstrates, this concern is more pronounced and complex for victims of gender-based violence and domestic abuse. In R v Morris, Crown appealed the Provincial Court of British Columbia’s sentence of two years of probation for Mr. Morris’s violent assault and unlawful confinement of his common law spouse. Mr. Morris was the former Chief of the Liard Band in Watson Lake. While he was assessed by a psychologist as being at low risk for violent offence generally, he was considered at high risk for future spousal violence. At trial, his sentencing had been adjourned for 4 months in order to give the community time to formulate submissions. The community held a talking circle with elders, members of the community, the victim, the accused, and their families. On the day of sentencing, however, due to the victim’s apprehension about making sentencing recommendations for the Court, the talking circle was more of a general discussion.

A summary of the talking circle submitted to the judge recommended healing and counselling over incarceration. At the same time, the Liard Aboriginal Women’s Society submitted a letter, signed by 50 people, expressing concerns over the sentencing process. The letter expressed fear that as Mr. Morris was a former Chief in the community, Aboriginal Leadership will “use their power and authority to retaliate against those who find the courage to speak out against violence.” It also noted that many Kaska women have “extreme feelings of anxiety and vulnerability” in light of the case. Noting the offence’s divisive impact on the community, the sentencing judge imposed a suspended sentence with two years of probation.

The BC Court of Appeal overturned the suspended sentence. Justice Finch wrote that in attempting to give effect to his understanding of Aboriginal justice, the sentencing judge “lost sight of the court’s overriding duty” to order a sentence proportional to the gravity of the offence and the degree of responsibility of the offender (para 56). Not only is the severity of an offence aggravated when it is committed against a spouse (para 59), Mr. Morris’s assault was pre-meditated, with no drug and alcohol involved. And though he was identified as an Indigenous offender, the trial court did not properly assess systemic and background factors that brought Mr. Morris to court. As such, the suspended sentence was unfit because “it sends a completely wrong message to the victim, the offender and the community” (para 62). Noting the community’s lack of capacity to address domestic violence in a traditional and restorative way, Mr. Morris was sentenced to 12 months of incarceration with two years of probation.

The sentence given to Mr. Morris at trial level appears to be consistent with Gevikoglu (2013)’s criticism of Gladue and Ipeelee: “the particularized focus on Indigenous identity takes on a character that subsumes other considerations, including differences within Indigenous communities” (p. 8). Of course, as the BC Court of Appeal decision explained, s. 718.2(e) does not require Indigenous identity to be the most determinative factor in sentencing, it is meant to be considered with all other relevant sentencing principles and factors. As well, a correct application of restorative justice approaches promoted by Gladue will take into account the needs of the offender, the victim, and the community. Finally, Gladue may only be successful when communities are able to establish initiatives and programs that effectively deal with issues of poverty, substance abuse, family breakdown, the effects of residential schools and other systemic causes of crime (Turpel-Lafond 1999).

3.2.2 Overrepresentation within the framework of reconciliation

As Gladue and Ipeelee have explained, s. 718.2(e) is a remedial measure. Its purpose is to remedy Indigenous over incarceration, and it aims to do so through utilizing a different method of analysis in sentencing that pays special attention to the background and systemic factors of Indigenous offenders, and the types of sentencing procedures and sanctions that are culturally appropriate.

While the causes of over incarceration are multiple and complex, a root cause is undoubtedly the cumulative effects of colonialism and its ongoing legacy. The Royal Commission on Aboriginal Peoples (1996) concluded that the impacts of colonialism most effectively explained the prevalence of socio-economic disadvantage among Indigenous communities, which has led to the overrepresentation of Indigenous people in prisons. Similarly, the Aboriginal Justice Inquiry of Manitoba (1991) attributes higher crime rates to “the despair, dependency, anger, frustration, and sense of injustice prevalent in Aboriginal communities,” which stem from the trauma and loss of culture experienced by families and communities as a result of colonial policies over the past century.

The ongoing discrimination faced by Indigenous people in the criminal justice system, seen as a legacy of colonialism, is explained by the Aboriginal Justice Inquiry of Manitoba following the police killing of an Indigenous man in a city street. Commissioner Paul Chartrand was quoted as saying:

“Aboriginal over-representation is the end point of a series of decisions made by those with decision-making power in the justice system. An examination of each of these decisions suggest that the way that decisions are made within the justice system discriminates against Aboriginal people at virtually every point.”

The Truth and Reconciliation Commission of Canada similarly notes in the context of parole eligibility that while criminal records are typically a reliable risk predictor, “systemic discrimination related to poverty and the legacy of residential schools undoubtedly disadvantages Aboriginal offenders” (Truth and Reconciliation of Canada 2015, p. 177).

Indeed, Gladue considerations are meant to remedy over incarceration through addressing the impacts and legacy of colonialism; yet, considering the intimate interconnection of the two issues, critics have questioned if Gladue principles in sentencing are sufficient. The Royal Commission on Aboriginal Peoples concluded that Indigenous self-governance over the “substance and process of justice” in the criminal justice system is essential in a new nation-to-nation relationship. Recognizing that “it has been through the law and the administration of justice that Aboriginal people have experienced the most repressive aspects of colonialism” (Aboriginal Justice Inquiry of Manitoba 1991), some authors argue that greater Indigenous self-determination over the criminal justice system is necessary to remedy over incarceration in the long term.

In making the case for Indigenous self-governance, the Commission rejected the “indigenization” of the criminal justice system: the practice of maintaining existing state structures, but with Indigenous staff and programs, such as diversion and Indigenous courtworkers (Gevikoglu 2013; Rudin 2005). Instead, Indigenous communities should be given the resources – in terms political power, legal jurisdiction, and financial support – to develop criminal justice frameworks in accordance with Indigenous legal traditions (Royal Commission on Aboriginal Peoples 1996; Aboriginal Justice Inquiry of Manitoba 1991; Gevikoglu 2013; Rudin 2005). In that sense, Gevikoglu views s. 718.2(e) as a limited solution, symbolizing “a constitutional and socio-legal compromise: a space within the criminal justice system for Indigenous legal approaches” (p. 6).

Rudin (2005) expresses a similar sentiment. He explains that because the colonial experience took away the right and the ability of Indigenous people to govern and maintain order in their own communities, restorative justice responses to criminal justice must be developed by Indigenous people. After all,

“The impacts of colonialism cannot be remedied by having non-Aboriginal organisations whether they be government or non-governmental organisations, tell Aboriginal people what they and cannot do; that process, however well meaning, just perpetuates the colonial experience.” (p. 95)

As a remedial solution formulated within the existing criminal justice system structures, s. 718.2(e) is potentially problematic in that it risks essentializing Indigenous identity. According to Gevikoglu (2013), essentialism is the idea “that individuals who share the same characteristics possess a shared, constant biological nature or essence,” and which ascribes “to group members a common experience of oppression that is culturally and historically invariable” (p. 8). Though the diversity of Indigenous communities is briefly acknowledged in Gladue and Ipeelee, the many different cultures and legal traditions are nonetheless all encompassed by “aboriginal.”Footnote 17

This, Gevikoglu argues, is essentialism. In setting up a framework for differential treatment in sentencing based on Indigenous identity, Gladue puts courts in the position of determining the relevant background and systemic circumstances of Indigenous offenders. In other words, using Indigenous identity in sentencing means that courts are constructing Indigenous identity in law. Gevikoglu views Gladue as characterizing Indigenous persons as “victimized by systemic and direct discrimination, suffering from dislocation, and substantially affected by poor social and economic conditions” (p. 9). Ipeelee even suggests that Indigenous persons are victimized by their experiences to the point of having diminished moral culpability – as Gevikoglu points out, the only other categories with diminished criminal liability are youth and the mentally ill. The recognition of structural constraints and social context in sentencing, of course, is not universally thought of as incompatible with autonomy and free will (Sylvestre 2013; Ozkin 2012). Nonetheless, considering the way that Indigenous identity has been used in colonial laws and policies in the past, it is

“Important to consider the impact that both appropriating Indigenous identity and essentializing that identity as victimized, dislocated and poor has on Indigenous communities’ and offenders’ agency in the sentencing process” (Gevikoglu 2013, p. 9).

For critics of Gladue, the pertinent concern is whether and how s. 718.2(e), which has the potential of essentializing Indigenous identity, will enable Indigenous people to have greater power and autonomy in the criminal justice system. Currently, decisions of who is diverted and when processes like sentencing circles are utilized are still made by police, Crown prosecutors, or judges within the non- Indigenous justice system. Practitioners within the criminal justice system must acknowledge that Gladue has the potential of harming Indigenous offenders, and be aware of how Indigenous individuals, communities, and legal traditions are characterized in their work (Gevikoglu 2013, p. 13).

The Truth and Reconciliation Commission of Canada (2015) called upon federal, provincial, and territorial governments commit to the elimination of the over incarceration of Indigenous people in the criminal justice system. It also endorsed the United Nations Expert Mechanism on the Rights of Indigenous People recommendation that “substantive changes are required within the criminal legal system in relation to Indigenous peoples’ rights to their land, territories, and natural resources; political self-determination; and community well-being” (p. 204). As Gladue Courts and various community-based Indigenous justice programming continues to be implemented, at the very least, Indigenous voices must be included in the creation and development of these processes. More work is undoubtedly needed to examine how over incarceration can be addressed in conjunction with the broader constitutional question of reconciliation and nation-to-nation.

3.2.3 Overlooking Gender Dimensions of Crime and Victimization

Finally, critics have expressed concern about the gender-neutral nature of the Gladue analysis, especially, as overrepresentation is growing more quickly among Indigenous women than men. The s. 718.2(e) analysis set out in Gladue ignores intersectionality: for Indigenous women, the systemic experiences of colonialism is compounded by, and inseparable from, gender inequality. The interaction between gender and Indigenous identity means that sentencing approaches that remedy the over incarceration of Indigenous women do not fit neatly into the dichotomy of “traditional” and “western” (Gevikoglu 2013; Cameron 2008; Williams 2008).

Cameron (2008) argues that Gladueinformation needs to incorporate gender analysis because Indigenous women disproportionally experience indicators of colonialism set out in Gladue, yet the impact is often less visible to judges. Some gender-specific Gladue considerations highlighted by Cameron include:

1) Parenting

Many Indigenous women are the sole or primary caregiver in their family: In 2006, 18% of Indigenous women aged 15 and over were heading families on their own, compared with 8% of non-Indigenous women (Statistics Canada 2011a). Considering the legacy of family separation and high rates of child apprehension that form the experience of Indigenous communities, women should be given alternatives to incarceration where possible so that they can continue to parent their children.Footnote 18

2) Displacement

Indigenous women’s displacement from their reserves is a result of discrimination by both state policy and their own communities. The Indian Act undermined and removed Indigenous legal orders, in which women held positions of power and had access to resources, and replaced them with structures that “uniformly devalued women and placed men in positions of power and control”. The Act included provisions that took away “Indian” status from Indigenous women who married non-Indigenous men. Without status, women were no longer able to access resources, such as on-reserve housing, cultural resources, interaction with elders, subsidies for education, and land claim settlement resources.

Although these provisions were changed in 1985, “Indian” status recovery still has a second generation cut-off. At the same time, Indian Act band council litigates against women’s efforts to rejoin their community. The result is that Indigenous women, their children, and grandchildren are displaced to urban areas – as of 2006, 72% of Indigenous women live off-reserve. Not only does this mean that Indigenous women lack access to resources and a connection to their ancestral land – which for many Indigenous cultures, is intimately tied to a sense of belonging and cultural identity, but living in urban areas also means greater risk of poverty, systemic and direct racism, and sexual exploitation.

3) Violence

Experiencing violence and trauma is linked to substance abuse, as well as poverty and homelessness, two factors mentioned in Gladue. Indigenous women are three times more likely to experience violence than non-Indigenous women (Statistics Canada 2011b). Of Indigenous women who experienced intimate partner violence (IPV), close to half reported the most severe forms of violence, such as being sexually assaulted, beaten, choked, or threatened with a gun or a knife (ibid.). Many female offenders commit violent crime in self-defence, or after having been subject to IPV. Cameron argues that existing legal mechanisms like “battered women syndrome”, the self-defence argument, and principles of provocation should be applied rigorously by judges to address this “gendered legacy of colonialism.”

4) Poverty

Indigenous women’s poverty is exacerbated by higher rates of underemployment and, where women are employed, the wage gap. Disproportionate levels of poverty forces Indigenous women, particularly in urban areas, to resort to illegal work such as dealing drugs or sex work, for their own and their children’s survival.

Cameron analyzes the cases Gladue, Moyan, and Norris, noting the shortcomings of the Court’s gender-neutral approach. Ms. Gladue, whose offence was decontextualized from her history of intimate partner violence, was portrayed as an aggressor. The court also did not consider the effects of displacement – it is mentioned that she lives off-reserve, but no further information is provided. In Moyan, s. 718.2(e) was not applied because Ms. Moyan did not engage in what the judge perceived to be a traditional cultural lifestyle, which Cameron notes is not actually the point of considerations of systemic and background factors. Sentencing should have instead considered how Ms. Moyan was affected by experiences of colonialism. For Ms. Norris, although it was noted that she was controlled by her former partner who profited from her drug-trafficking, the court did not contextualize how her dependence and fear of her former partner made her “vulnerable to criminal survival strategies.”

Despite the fact that conditional sentences have been extended to covering serious crimes, including violence against Indigenous women, it was unfortunately not ordered in all three cases, even though it would have given the women the freedom to parent, work, and participate in education, counselling, and treatment programs. Not taking gender-specific mitigating factors into account, Cameron argues, leads to unfair decisions because women are “forced to take full personal responsibility for circumstances that are clearly related to their experiences of colonialism.” As a result, they are separated from their children, which further exacerbates the cumulative impact of colonialism.

On the other hand, Toni Williams (2008) observes that the criminal justice system has at times used intersectional analysis in a way that contributed to the over incarceration of Indigenous women. In the 1990s, law enforcement shifted to a risk-based model that aimed to pre-empt crime rather than responding to individual offences after the fact; it did so by focusing on populations predicted or perceived to be problematic. The same identity factors that signify mitigating experiences of colonialism in Gladue were deemed to be sources of criminogenic risk/needs in Correctional Services Canada’ prisoner assessment and classification. Toni Williams explains the conundrum this creates in sentencing:

“When faced with an Aboriginal woman who embodies what the criminalization process deems to be criminogenic risk/needs, the sentencing judge is asked to justify a non-carceral sanction in terms of those same aspects of the defendant’s intersectionalized identity that point to incarceration as necessary to contain and manage her risk of re-offending.”

Criminalization and law enforcement, which necessarily divides people into “good” and “bad”, “dangerous” and “innocent”, creates a difficult binary for Indigenous women, who are often both victims and victimizers. Through an analysis of 18 first instance cases involving Indigenous women, Toni Williams observes that Indigenous women’s intersectional identity may not do much to mitigate their sentences, because of how identity factors have been incorporated into sentencing decisions based in controlling risk.

Of the 18 cases analyzed, 8 were carceral sanctions, 9 were conditional sentences, and 2 were stand-alone probation orders on top of time served. Those receiving incarceration and conditional sentences had similar offences – for example, 5 of the women who were incarcerated and 5 with conditional sentences had killed someone. All the defendants who were convicted of homicides and assaults knew the victim, and almost all were spouses or former spouses, or children, which is consistent with research indicating that women’s violence tend to be inflicted on family members. While judges take judicial notice of the history of colonialism, the decisions analyzed do not explicitly discuss the discrimination of Indigenous people in Canada. Women’s criminality in the cases analyzed is linked to experiences of childhood violence, substance dependency, socio-economic disadvantage, displacement, and family dysfunction, which are not explicitly attributed to a legacy of colonialism and ongoing discrimination.

Toni Williams observes that for decisions of non-carceral sentences, judges constructed sanctions in two ways. In some instances, non-carceral sentences were seen as healing rather than punitive. Although Indigenous women’s identity is equated to substantial levels of risk/need, judges felt that restorative and rehabilitative sanctions were a better fit. For others, non-carceral sentences were deemed as equally punitive. Offenders are characterized as risks “containable” by sanctions such as conditional sentences. For sentences of incarceration, criminogenic risk and punitive objectives are prominent. Indigenous identity is either minimized, or linked to greater risk/needs. In one instance, because the offender was characterized as high risk, prison was constructed in the decision as a space of safety, stability and support that would allow the offender to escape from her dangerous community. This characterization, of course, did not mention the discrimination and lack of culturally appropriate services in prisons mentioned in Gladue.

It appears that on the one hand, emphasis on the identity of Indigenous women means that s. 718.2(e) will more likely mitigate the offender’s sentence. On the other hand, without contextualization in the history of colonialism, the use of identity factors in sentencing creates the risk of perpetuating the stereotypical narrative that Indigenous women are inherently suffering from economic deprivation, substance abuse, family and community dysfunction, and male violence, all of which point to high risk for criminality. Toni Williams worries that this would represent Indigenous women’s offences “as over-determined by ancestry, identity and circumstances, exactly the type of representation of compromised moral agency that feeds stereotypes about criminality.” In other words, there is a risk of essentializing Indigenous women’s identity. This points again to the importance of resources being allocated to Gladue reports which effectively contextualizes community and identity factors within the societal and systemic factors in which they are situated.

3.3 Other Considerations

3.3.1 Application to Offenders with FASD

Based on the recognition in Ipeelee that background and systemic factors may diminish the culpability of Indigenous offenders, Milward (2014) argues that courts should move towards needs-based sentencing for Indigenous accused with Fetal Alcohol Spectrum Disorder (FASD). Incarcerating FASD offenders is theoretically problematic because the prevalence of FASD in Indigenous communities is a legacy of colonialism. Practically, it is problematic because as many as 60-75% of FASD subjects are prone to attention deficits and impulsivity – making the deterrent effect to incarceration a challenge for FASD offenders, especially considering the lack of FASD-specific treatment programs in correctional facilities.

Through an analysis of case law, Milward (2014) notes that many judges are applying Gladue factors in sentencing – recognizing that FASD is caused by substance abuse, which is a result of colonial policies. The challenges, as Justice Watson of the Alberta Court of Appeal notes in R v Ramsay, are in accurately accessing the moral blameworthiness of the offender, and “balancing the protection of the public against the feasibility of reintegrating the offender into the community” (para 50). Such a balanced assessment requires in depth information about the accused person’s condition – which falls within the requirements of Gladue and the scope of Gladue reports. Additionally, considering that the breach of a probation condition is a criminal offence, special attention should be paid to the sanction imposed, since a person with FASD may not be able to adhere to the terms of a probation order or conditional sentence due to impulsivity. Probation officers and other court personnel need to have greater awareness of FASD.

Finally, a study of qualitative interviews with justice professionals with FASD experience – including Indigenous lawyers, provincial court judges, correctional psychologists, and correctional educators – pointed to the pressing need for more resources (Milward 2014). Milward specifically emphasizes the importance of providing resources to Indigenous communities so that they have the capacity to provide programs and services for Indigenous persons with FASD.Footnote 19

3.4 Application to Bail

As mentioned above, outside of sentencing, Gladue applies to all situations where an Indigenous person’s liberty is at stake.Footnote 20 In the bail context, Gladue was found to be relevant in R v Wesley in British Columbia and R v Pittawanakwat in Ontario at the trial level, and R v Robinson at the appellate level. Currently, an Indigenous accused’s background is considered for bail decisions in eight provincial and territorial jurisdictions (Department of Justice Canada 2013).Footnote 21

The right to reasonable bail is entrenched in s. 11(e) of the Charter, and is closely connected to other entrenched constitutional rights such as the presumption of innocence (s. 11(d)), the right not to be arbitrarily detained or imprisoned (s. 9), and the right to liberty and security (s. 7). Section 11(e) means both that restrictions attached to bail, such as the quantum of any monetary element, should be reasonable, and that an accused person has a right not to be denied bail without “just cause” (Rogin 2014).Footnote 22 To uphold this right, courts should ensure that pre-trial release is the norm, and that both onerous bail restrictions and pre-trial detention are used as a last resort (R v Hall). Indeed, the “ladder principle,” which guides bail practices in Canada, favours pre-trial release as early as possible, on the least onerous grounds. The subsequent steps on the ladder are release with non-monetary conditions, release with various monetary conditions, and finally detention as a last resort. Prosecutors must show sufficient cause for each step of the ladder (R v Anoussis).

Despite these principles, in the last decade, the remand custody population has consistently been greater than the population of actually sentenced offenders in Canada – a situation that many are calling a bail crisis (Statistics Canada 2016; Rogin 2014). In 2014/2015, 57% of the custodial population were in remand custody, awaiting a bail hearing or awaiting trial (Statistics Canada 2016). Indigenous accused are over-represented in this population. Rogin (2014) analyzed 25 reported bail cases involving Indigenous accused between 2002-2014, arguing that not only does the bail crisis disproportionately affect Indigenous people, but that Gladue factors have been applied in a way that exacerbates the crisis.

As acknowledged by the Supreme Court in Gladue, Indigenous accused are more likely to be denied bail due to, among other factors, bias in the criminal justice system (para 65).Footnote 23 Rogin argues that current bail practices are not adhering to the ladder principle, particularly for marginalized individuals. Discretion in bail decisions imports “inherent biases and discriminatory attitudes”, as the assessments of risk of flight and to public safety “is impacted by factors such as race, class, Aboriginal heritage, [and] ability” (p. 44). Such perceived risk is managed by the use of sureties and increasingly onerous pre-trial release conditions (Rogin 2014, p. 44). Considering the socio-economic conditions and existing criminal records of many Indigenous accused, they are often unable to access pre-trial release, or are released with overly stringent bail conditions (Kellough and Wortley 2002; Rudin 2005).

Rogin’s analysis of cases concludes that the application of Gladue to bail has been sporadic and lacking in clarity, deemed relevant in some cases and not explicitly recognized in others. As Gladue is a framework for sentencing, applying it to bail hearings without adaptation could violate the presumption of innocence. For example, examining background factors that brought the person before the court is inappropriate in the bail context because such evidence is meant to diminish an offender’s moral culpability in sentencing. It would not only take more time to provide such information – which would prolong the amount of time that Indigenous accused persons spends in pre-trail custody compared to non- Indigenous accused, but it also presupposes that the accused will be found guilty. Rogin similarly critiques references to rehabilitation and restorative justice in bail hearing decisions, which justify onerous release conditions “more directed at ‘reforming’ the accused than with concerns related to the law of bail” (p. 80). It is problematic if pre-trial release conditions begin to look like a probation order or conditional sentence, since at this point the accused has not been convicted of an offence and hence does not require “reform.” Footnote 24

Echoing Gevikoglu (2013), Rogin notes also that courts tend to over-emphasize Indigenous heritage when applying Gladue without drawing connections to the legacy of colonialism. Ultimately, Rogin is concerned that the misapplication of Gladue could perpetuate the same stereotypes and biases which contributes to the over incarceration of Indigenous persons in the criminal justice system:

“However unintended, the erosion of the presumption of innocence for Aboriginal accused re-enforces a bias that Aboriginal people are ‘criminals’, more likely to commit crimes, and more likely to be guilty than their non-Aboriginal counterpart.” (p. 55)

Additionally, being denied bail leads to criminalization through pre-trial custody. Accused persons charged with minor offences may need to wait months in pre-trial custody, but may face little to no jail time if they plead guilty (Rogin 2014; Rudin 2015). The incentive to plead guilty is troubling: an innocent accused person could be criminalized through pre-trial custody, and should they be charged with an offence in the future, they will have even less possibility of accessing bail. Needless to say, this further exacerbates the bail crisis and the over incarceration of Indigenous persons.

Rogin concludes with recommendations for the application of Gladue to bail. Instead of examining factors that brought the accused person before the court and considering ways to rehabilitate and to adhere to restorative justice, bail courts should consider the factors and practices that disproportionately affect Indigenous peoples and contribute to their over incarceration. These factors include racial bias and the tendency to over-charge Indigenous persons in policing, the over-reliance on sureties, and the use of overly stringent forms of release. In order for the application of Gladue to bail to serve its intended purpose, the framework must be adapted to the bail process so as to not erode the presumption of innocence for Indigenous accused, and in a way that acknowledges the systemic bias in the bail process.

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