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

4. Gladue in Practice: Initiatives and Model Programs

The summary of literature in the above sections highlights the complexities of addressing Indigenous overrepresentation; to do so requires much more than just changes in sentencing principles. Programs and resources are needed in every stage of the criminal justice process to meaningfully implement Gladue principles: from courtworkers who prepare pre-sentence information for judges, to alternate sentencing processes that operate in accordance with Indigenous legal tradition, to community-based alternatives to incarceration both on reserves and in urban centres.

A number of initiatives aimed at alleviating Indigenous over incarceration exist across Canada, many of which are funded by the federal, provincial, and territorial governments. Governments also partner with NGOs – often Indigenous community organizations – to deliver services. These initiatives include: the establishment of specialized Indigenous courts, the implementation of restorative justice based alternatives to incarceration, access to courtworkers, awareness training for the judiciary, Indigenous police programs, and culturally appropriate correctional programs. From their development to their implementation, these programs attempt to adapt to the needs and values of the Indigenous community for which they are intended. While this section will not be an exhaustive list of existing initiatives, it will highlight and describe a number of programs that have been key to the implementation of Gladue principles.

Not all programs mentioned have been evaluated. Nonetheless, they are considered best practices because they reflect Gladue principles, whether they were established before or as a response to the addition of s. 718.2(e) and the Gladue decision. The initiatives and programs are organized into the following categories: courts specializing in Indigenous matters, community justice committees, Indigenous courtworker programs and restorative justice programs.

4.1 Courts Specializing in Indigenous Matters

The establishment of courts specializing in Indigenous matters is considered one of the most direct and representative implementations of Gladue principles. These courts aim to ensure that charges against Indigenous individuals are heard in a way that would give sufficient consideration to the unique circumstances of Indigenous accused and offenders in a culturally appropriate environment. Specialized Indigenous courts are part of the provincial courts system, and thus have the same powers. Depending on how the court is structured, non-Indigenous individuals may be tried in an Indigenous court. There is some debate on whether non-Indigenous peoples should be tried in Indigenous courts: while some argue that where a crime is committed should determine where judgment takes place, others feel that a specialized Indigenous court may not be suitable for non-Indigenous accused persons who do not share the same values and beliefs. To date, eight jurisdictions have established specialized courts for Indigenous accused persons (Department of Justice Canada 2013). Footnote 25

4.1.1 The Gladue Court at Old City Hall in Toronto

In the wake of the Gladue decision, there was concern among judges that criminal justice system actors did not have the resources to pay adequate attention to the background and systemic factors of Indigenous accused and offenders, particularly in urban areas. In Toronto, a group of judges, academics, and community organizations met for a year to discuss their concern. Their efforts culminated in the creation of the Gladue Court at Old City Hall (OCH). As the first Indigenous court in an urban environment in Canada, the Court began offering its services in 2001, and is voluntary and open to all self-identifying Indigenous persons (Aboriginal Legal Services Toronto 2016). Currently, there are three additional Gladue Courts in Toronto, as well as in Sarnia, London, Brantford, and Thunder Bay (Clark 2016). As well, a number of other courts are serviced by Gladue Report Writer programs funded by the Ontario Ministry of the Attorney General, Legal Aid Ontario, and the Department of Justice Canada (Department of Justice Canada 2013).

The Gladue Court at OCH is a sentencing and bail hearing court that takes a case management approach. While the Gladue Court itself is not set up too differently from other OCH courts, it aims to incorporate Indigenous values, principles, and conceptions of justice into court processes and proceedings. Personnel at the court including judges, Crown and duty counsel all receive Gladue-related training, and specially trained Indigenous courtworkers play a critical role in working with the accused.

Accused persons at OCH are given opportunities as early as possible to identify as Indigenous by the presiding justice of the peace, duty counsel, Crown counsel and Indigenous courtworker. Once they identify as Indigenous, an Indigenous courtworker explains the option of the Gladue Court, and liaises with Crown Counsel about the possibility of diversion. An accused person released on promise to appear can be diverted to Community Council at Aboriginal Legal Services upon a guilty plea, or may proceed to a Gladue Court hearing, where charges may be withdrawn or stayed, or where the accused may proceed to trial court. An accused person not granted bail can apply to the Toronto Bail Program, Gladue Supervision, which is designed to cover bail in the absence of a surety. The program allows the accused person to work with a Gladue bail supervisor to design a plan of care (a release plan).

Upon a guilty plea, Indigenous accused diverted to Community Council are able to access culturally appropriate rehabilitationFootnote 26. The Community Council at Aboriginal Legal Services Toronto is a “restorative circle of Indigenous volunteers,” including Indigenous Elders, who work with the client to discuss why the offence occurred, and set up a rehabilitative plan of care. Green (2012) notes that Community Councils existed prior to colonization, and the Gladue Court at OCH is the first initiative that has adapted the concept to an urban environment. Through the plans of care, Indigenous individuals are connected to culturally relevant services suited to their needs, which can include, but are not limited to: harm reduction, sweat lodges, support for anger management, counselling for substance abuse, housing, education and training, and employment assistance. Through diversion, Indigenous offenders have their charges withdrawn, and are often referred to opportunities to engage with their culture, something that is often lacking in urban centres. Indigenous accused who are not diverted may also work with Indigenous courtworkers to design a plan of care, which is then provided to the judge in a Gladue Report, and is usually adopted (Green 2012). Because individuals before the court actively participate in designing their plans of care, these rehabilitative programs “have an impressive success rate… as measured by the completion of court-directed programs” (Green 2012, p. 7).

An independent evaluation of the Gladue Court at OCH was conducted by Clark (2016), who interviewed court officials, staff from Aboriginal Legal Services, accused persons, and others in the Indigenous criminal justice process, and also reviewed files, statistics, and conducted court observation. He provided some recommendations, such as taking a “circle” approach in Gladue Court hearings, as is done by the Aboriginal Youth Court in Toronto, or at least holding occasional sentencing circles so that there are opportunities for a more culturally appropriate sentencing format. Clark is also concerned that, since accused persons can only be diverted upon admission of guilt, Indigenous accused have an incentive to plead guilty in order to access rehabilitative programs. A defense counsel interviewed by Clark remarked that Gladue Courts are “a safe place for [his] clients to plead guilty” (p. 46). More research undoubtedly needs to be done on the issue.

Nonetheless, Clark concluded that the Gladue Court is meeting its objectives, has maintained flexibility, and along with Aboriginal Legal Services, Community Council, and the Toronto Bail Program, Gladue Supervision, is “providing a critically important service to Aboriginal individuals, their families and the larger Aboriginal community” (p. 4). Similarly, Justice Melvyn Green (2012), who presides over the Ontario Court of Justice at OCH, explained the significance and the important role of the Court:

“The Court enables cross-institutional understanding. It provides positive reasons to identify as Aboriginal and to embrace that identity. It affords a channel for community-building. And it facilitates, or at least accommodates, the catharsis and insight that sometimes accompanies focused introspection through the telling of personal accounts of cultural, familial and personal disintegration.” (p. 7)

Indeed, clients who had gone through the Gladue Court and diversion to Community Council were less likely to re-offend when compared to Indigenous offenders in other jurisdictions.

4.1.2 Tsuu T’ina First Nation Court in Alberta

Established in 2000, the Tsuu T’ina First Nation Court is on the Tsuu T’ina reserve, and its judge, prosecutors, court clerks, court social workers, probation officers, Peacemaker and some defence counsel are Indigenous. The court blends two systems: the Provincial Court of Alberta and the peacemaker process – a circle process that involves the victim and offender, their respective families, and volunteers and resource personnel. It presides over Tsuu T’ina members, non-Tsuu T’ina Indigenous persons, and non-Indigenous persons, and has jurisdiction over criminal justice, youth justice, and First Nation by-law offences.

The Court uses peacemaking traditions that reflect the values of the Tsuu T’ina Peoples, including smudging with sage or sweet grass. Local Peacemakers and Elders are directly involved in the court process and review the cases diverted from the justice system as well as cases that require dispute resolution. Cases can be referred to the Peacemaker’s office by schools, police, provincial courts, the Tsuu T’ina Band Administration or by a community member (Alberta Justice and Attorney General and Alberta Solicitor General and Public Security 2006). The Peacemaker process occurs only if the victim agrees to participate, and homicides and sexual assault offences are excluded from this process (Proulx 2005). The associated Office of the Peacemaker operates a peacemaking program that employs culturally appropriate mediation and alternative dispute resolution techniques (Department of Justice Canada 2015).

4.1.3 First Nations Courts in British Columbia

There are currently four First Nations (Gladue) Courts in British Columbia, located in North Vancouver, Duncan, Kamloops, and New Westminster. Two more First Nations Courts have been proposed, by the Tsilhqot’in National Government and Sto:lo Tribal Council (Dhillon 6 March 2016).

Indigenous persons who have pleaded guilty to a criminal offence can be referred to a First Nations Court for most bail and sentencing hearings. The Courts take a restorative justice approach to sentencing. The judge hears from the offender; victim; their respective family, friends, and community members; Crown counsel; defense counsel; as well as others involved with the court, such as Elders, social workers, Native Courtworkers, counsellors, probation officers, and police officers. The judge works with all parties involved to devise a healing plan, which aims to help the offender, the victim, and the community. Through the healing plan, the offender will take responsibility for their actions, work on the root causes of the offence, and be asked to return to the court so that the judge can monitor their progress (Legal Aid BC 2014).

4.1.4 The Cree‐speaking Court and the Dene‐speaking Court in Saskatchewan

Based in Prince Albert, the Cree-speaking Court was established in 2001, and is composed of Cree judges, court clerks, Crown prosecutors, legal aid lawyers, and victim services. The court travels to serve nearby Indigenous communities, including Pelican Narrows, Sandy Bay, Montreal Lake, and Big River First Nations. Participants may request to speak in English or Cree. The peacemaking process is used where appropriate for the situation.

In 2006, the Dene-speaking Court in Meadow Lake began providing services in both the Cree and Dene languages with the assistance of translators. The presiding judge is Cree and the court uses a restorative approach (Whonnock 2008).

4.1.5 Nunavut Court of Justice

Established in 1999 with the creation of Nunavut, the Nunavut Court of Justice is the only unified criminal court in Canada. Although not a designated Gladue Court, Gladue elements are in a sense built into the court because of the mostly Inuit population in Nunavut. One of the Court’s main objectives is to provide an “efficient and accessible court structure capable of responding to the unique needs of Nunavut” (Clark 2011, p. 345). It aims to provide culturally appropriate services and engage with communities through providing court interpretation services, utilizing elders’ panels and youth panels in sentencing, and other community-based sentencing alternatives.

As Nunavut has the highest rate of crime in Canada – in violent crimes, property related offences, and administration of justice offences, the Nunavut Court of Justice faces unique challenges. Judges hear cases in Iqaluit, and also spend a significant amount of time in circuit due to the territory’s large geographical area. Hearings can at time be delayed due to weather. Language is a barrier for non-Inuit lawyers, judges, and staff, as Inuktitut or Innuinaqtun is the first and often only language for most community residents. Interpreters and Inuit courtworkers play a crucial role in minimizing court delays, which can be especially problematic since offenders and victims often live in small communities.

Clark (2011) observed that in order for the Court to function effectively and meet its goals, there needs to be more resources for hiring, training and supporting legal aid lawyers, Inuit courtworkers, and community-based Justices of the Peace. Legal aid lawyers have had to take on additional work since the Gladue decision in preparing pre-sentence reports, as nearly all sentencing hearings are Gladue hearings in Nunavut. Inuit courtworkers, who are funded through a cost-sharing agreement between the federal and Nunavut Departments of Justice, play a critical role in case preparation, communicating between lawyers and clients, and follow up. Justices of the Peace, depending on their level, may preside over trials relating to summary convictions, Nunavut statutes and bylaws; breach of conditional sentence hearings; peace bond applications; child welfare hearings; and may even act as Youth Court judges and issue telewarrants. As Justices of the Peace do not have to be lawyers in Nunavut, there is flexibility for a member of the community who speaks Inuktitut or Innunaqtun to be trained to adjudicate certain matters, so that disputes do not have to wait for circuit judges to travel from Iqaluit.

In addition to greater resource provision to legal aid lawyers, Inuit Courtworkers, and Justices of the Peace, Clark also recommends the implementation of community-based restorative alternatives to the court system such as community justice committees and youth justice committees. As there is concern amongst critics that circuit courts lacking knowledge and understanding of remote communities may not have sufficient credibility and legitimacy in the eyes of community residents, community-based alternatives could both complement the court system and relieve some of its responsibilities.

4.2 Indigenous Courtworker Programs

Indigenous courtwork programs are found in every province and territory across Canada, with the exception of PEI and New Brunswick. Nationally, over 180 courtworkers provide services to approximately 60,000 Indigenous clients in over 450 communities each year.Footnote 27 Indigenous courtworkers provide support to Indigenous accused throughout various court processes, including translation, interpretation, and guidance. Courtworkers also refer accused persons to other services or organizations if needed, ensure liaison with other agencies, and follow up on the cases (Department of Justice Canada 2008). Indigenous Courtworker Programs are considered to be complementary to other Aboriginal Justice initiatives, and Indigenous courtworkers play an essential role as frontline workers of the criminal justice system.

In a number of jurisdictions, Indigenous courtworkers play a critical role in the preparation of Gladue information prior to sentencing. Among the programs currently in operation, the Gladue Caseworker Program established by Aboriginal Legal Services of Toronto was independently evaluated. Over a two-year period, Campbell Research Associates (2008) interviewed judges, Crown attorneys (federal and provincial), defence counsel, Gladue caseworkers, and the Gladue program manager. Relevant records such as Gladue caseworkers’ daily logs and client records were also reviewed.

Gladue Reports were generally requested by judges and defence counsel, and accused persons generally agreed that a report should be prepared (Campbell Research Associates 2008). If a Gladue Report was refused by the accused, it was usually because the accused was in remand and did not want to delay their sentencing, or because the accused person did not want to have family members contacted by a courtworker. The cases analyzed by the evaluation indicated that sentencing was completely consistent with Gladue Report recommendations in over 60% of the cases, and mostly consistent in 20% of the cases.

4.3 Other Restorative- and Community-Based Alternative Programs

Through the Aboriginal Justice Directorate (AJD), the Department of Justice Canada supports Indigenous community-based justice programs that offer alternatives to mainstream criminal justice processes. AJD programs use a restorative justice approach, and their services are based on the justice-related priorities and designed to reflect the culture and values of the communities in which they are situated. Clients are referred from over 750 communities across Canada, including urban, rural, and Northern communities, both on- and off-reserve. There are also many restorative- and community-based alternative programs funded exclusively by the provinces and territories. A number of programs are based in the circle principle, and in general, programs are characterized by the community’s active participation, the offender taking responsibility and being held accountable, the intervention on the causes of crime, the principles of reparation and the offender’s positive reintegration into society. There are diverse approaches to Indigenous, restorative, and community based programs, reflecting the diversity of Indigenous peoples in Canada. This section features examples of (1) community justice committees (2) healing circles and (3) sentencing circles.

4.3.1 Community Justice Committees

Generally, Community Justice Committees are made up of local volunteers who partake in the dispute resolution process. Certain criminal matters may be diverted to Community Justice Committees by the Royal Canadian Mounted Police (RCMP) or Crown Prosecutors. Offences that are eligible for diversion include theft, mischief, breaking and entering, alcohol and drug offences, vandalism, and minor assaults. Like the Community Council at Aboriginal Legal Services Toronto, an individual may be diverted only after accepting responsibility for the offence, and the community justice process is voluntary. Taking a restorative approach, Community Justice Committees hear from all parties involved in an offence when creating a resolution that aims to repair the harm done by the offence. Possible resolutions include but are not limited to community service, restitution, counselling and apologies (Northwest Territories Justice).

There are Community Justice Committees in nearly all provincial and territorial jurisdictions. In Ontario, for example, there are ten community justice programs for adults serving 24 communities. In Québec, community justice committees may identify certain measures that the court could impose in the sentencing context or act as mediators in certain disputes between members of the community. They may also work with enforcement or probation officers to follow up on measures set out in an order (Ministère de la justice du Québec 2008). In Alberta, the Alexis Restorative Justice Initiative promotes information sharing between the court system and the Alexis Justice Committee, Elders, and other members of the community. The justice committee plays an important role in sentencing by identifying the cultural and social resources available on reserve. The committee also assists the probation officer in monitoring offenders and preparing reports on offenders’ compliance with probation conditions.

While there are many community justice committees across the country, inadequate information sharing, coordination, and integration between justice system stakeholders and community justice programs remains a challenge (Department of Justice Canada 2013). Greater integration and communication would undoubtedly improve the effectiveness of service delivery for Indigenous persons in the criminal justice system.

4.3.2 Healing Circles

Like other forms of alternative programs with a restorative component, healing circles involve the participation of the offender, the victim (if they wish to participate), their respective families, and other community members such as Elders. Taking a holistic approach, healing circles aim to reach a consensus on how to repair the harm done by the offence, which includes its effects on the relationships of the offender with the victim and the community. They also address the underlying causes of the offence so as to rehabilitate the offender. Similar to community justice committees, resolutions from healing circles can include specialized counselling programs, community service with an Elder’s council, potlatch or other remedies specific to the offender’s cultural traditions, as well as direct restitution. As an alternative to formal court proceedings, the circle process tends to better serve the needs of Indigenous communities, and is in line with Indigenous conceptions of justice. A healing circle or other form of restorative justice process may be part of a set of conditions imposed by the court, where the court would enforce the recommendations of the circle, as well as additional conditions that it sees fit (Justice Education Society 2016).

As was noted in Gladue, restorative approaches are not necessarily “lighter sentences,” but may in fact be a “greater burden on the offender than a custodial sentence” (para 72). As offenders must take responsibility for and accept the harm that they caused, a healing circle process “is intensive and in many ways more difficult than a passive jail sentence” (Justice Education Society 2016). Victims who participate may also find the process less traumatic than the court process. Some examples of healing circles include: Biidaaban: The Mnjikaning Community Healing Program in Ontario; the Community Holistic Justice Program in Newfoundland and Labrador; and the Prince George Urban Aboriginal Justice Society in British Columbia. The Mi’kmaq Confederacy of Prince Edward Island’s Aboriginal Justice Program provides a series of circle processes for the various stages of the criminal justice process. The circles serve the objectives of Conflict-Resolution, Early Intervention, Sentencing, Healing, and Reintegration (Mi’kmaq Confederacy of PEI).

4.3.4 Sentencing Circles

Based on the traditional circle process, sentencing circles facilitate community participation in sanctioning an offender. Community members join the judge, the offender and the victim to discuss the factors that contributed to the offence, and options for sanctions and community reintegration. The circle often will arrive at recommendations for a community sentence that includes some form of restitution, community service, counselling, and possibly a period of custody. Unlike community justice committees and healing circles, sentencing circles are not outside of the court process. The circle’s recommendations do not have to be adopted by the sentencing judge (Mi’kmaq Confederacy of PEI).

There are three types of sentencing circles: (1) the simple circle where accused persons, victims, their respective families, community representatives and members of the justice system are together in the same circle; (2) the double circle where the persons who form the simple circle are together in an inner circle, and onlookers sit in an external circle (they may move their chairs and join the inner circle if they wish); (3) separate circles, which provide for two stages in the sentencing process. In the first stage, a circle known as the “sentencing council” meets without a judge being present. Once this first committee has reached a consensus, the second circle is organized with the judge present, who is informed of the council’s recommendations (Jaccoud 1999).

Sentencing circles are used throughout Canada and are integral to the provision of culturally appropriate processes for Indigenous offenders.

4.3.4 Community Holistic Circle Healing Program (CHCHP) at Hollow Water

The Community Holistic Circle Healing Program at Hollow Water is one of the most documented restorative justice programs in Canada (see, for example, Bushie 1999; Green 1998; LaPrairie 1998; Department of Justice Canada 2009; Umbreit et al. 2002). The program was established in 1983 by social service providers looking to address problems faced by youth in the community, such as truancy, substance abuse, and suicide. In the process, social workers identified victimization from sexual abuse as the underlying cause for many of the community’s issues. According to Ross (1994), 75% of Hollow Water’s population had been victimized by sexual abuse and 35 % were offenders.

The CHCHP is both a healing circle and a sentencing circle (Bushie 1999; Jaccoud 1999). Evaluations of the program have been generally positive, indicating benefits to both participants and the community at large (Native Counselling Services of Alberta, 2001; Lajeunesse and Associates, 1996). The program nonetheless faces a number of challenges. Since the process requires public acknowledgement of sexual abuse, the confidentiality of participants is necessarily compromised. Additionally, the complexity of social bonds in the community can create distrust throughout the healing process.

In summary, the large variety of programs for Indigenous persons in the criminal justice system reflects the diversity of Indigenous communities, as well as the possibilities of making the criminal justice process more restorative, community-based, and culturally appropriate.

While these programs provide valuable services for Indigenous accused and offenders, we note also the criticism that restorative justice approaches need to be better integrated into the court system, including Gladue Courts. Relying on community efforts alone may not be sustainable in the long run:

“These community-mediated efforts at restorative justice are logistically challenging and often time-consuming and emotionally draining. They are, from a court-management perspective, inefficient. They may also, over time, produce a kind of justice fatigue by exhausting the energy and good will demanded of the host communities and, in particular, community Elders.” (Green 2012, p. 9)

The lack of independent evaluative studies of many existing programs, as well as greater efforts of integrating programs into the mainstream court system remain areas for future work.