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

5. Participants’ Experiences in Gladue-Related Programs

There has not yet been extensive or comprehensive research on the experiences of participants of the criminal justice system in Gladue related programs, and existing research is largely qualitative. For example, participants of community stakeholder engagement sessions run by the Aboriginal Justice Directorate (AJD) have generally provided anecdotal feedback that culturally appropriate programs are better suited to responding to clients’ circumstances. This section will highlight some of the experiences of (1) accused persons/offenders, (2) members of the judiciary, and (3) defense council, while noting that further and more comprehensive research should be done in this area.

5.1 Experiences of Accused Persons / Offenders

5.1.1 The Lived Experiences of Clients of the Community Council Program

In his thesis, Craig Proulx (2001) noted that the lived experiences of clients of the Community Council Program (CCP), the diversion program at Old City Hall, were often shaped by the impacts of residential schools and the child welfare system. While some clients were weary of defining the Indigenous experience as being based predominantly on victimization, the effects – direct or intergenerational – of abuse in residential schools and the child welfare system are for many an underlying cause of substance abuse and criminality.

Experiences of discrimination were prevalent at all stages of the mainstream criminal justice system. Clients described the perception of being charged simply for being Indigenous – whether due to overt police racism or a presumption of criminality rooted in negative stereotypes of Indigenous people normalized in Canadian culture. As many CCP clients lived on the streets, they were also more visible to law enforcement. CCP members and staff described clients arriving at their offices after being released from custody with injuries from being beaten, and note also the excessive use of strip searches by police. In short:

“The racism, stereotypical thinking, and physical/ mental/ spiritual/ emotional abuse and torture by the police are seen as endemic… Aboriginal knowledge that they are more likely to be picked up for a crime than non-Aboriginals is a form of mental abuse.” (p. 71)

CCP clients and duty counsel also described the phenomenon of lawyers pressuring accused persons to plead guilty without proper investigation so as to spend less time on each file, though Proulx notes that evidence of this is anecdotal. Clients cited also the lack of knowledge and understanding of the Indigenous experience on the part of both counsel and judges presiding over their case.

5.1.2 Experiences at the Gladue Court

In an independent evaluation of the Gladue Court at Old City Hall, Clark (2016) interviewed accused persons awaiting hearings, as well as people who had been diverted to the Community Council Program.

Over the 7-month evaluation period, approximately 94 Indigenous persons appeared at the Gladue Court. In general, despite the fact that cases took longer to process at OCH, Indigenous individuals generally had positive feedback about their experiences. Participants noted, for example, that “in this court they take you seriously” (p. 26), “they take the time to talk to you, see what you need, and figuring out a way to help you” (p. 40). For those who have had cases heard at another court, the bail process at Old City Hall was seen as “fair, reasonable, and culturally relevant,” in part because clients of the Toronto Bail Program, Gladue Supervision participate in the designing of their release plans. Similarly, Indigenous clients had positive feedback about participating in rehabilitative programs through diversion to Community Council.

While participants indicated that they would tell other Indigenous accused about the Gladue Court, they also pointed to the need for greater awareness in other courts around the Greater Toronto area. As the opportunity to identify as Indigenous depends on court professionals, Clark recommended that there be greater outreach and education for judges, Crown, and defence counsel at other courts in the city. In addition, some participants questioned why the court was not structured as a sentencing circle. While there have been some attempts at using the circle format at the Gladue Court, Clark notes that turning completely to sentencing circles would cause major delays and is not feasible at this time.

5.2 Experiences of Members of the Judiciary

5.2.1 Judges’ experiences with Gladue

While the judiciary has not spoken extensively about their experience with Gladue, it is clear that sentencing reform alone will not be adequate to address overrepresentation, as the Supreme Court notes in Gladue (para 65). In R v Dantimo, Judge O’Neill writes that the difficulty for sentencing judges is that they “can only deal with the symptoms of the problem… and not the causes” (para 31).

Justice Melvyn Green (2012), who presides over the Gladue Court at OCH, is also critical of “the Supreme Court’s repeated invocation of ‘restorative justice’” in Gladue and Ipeelee as the Court does not mention anything more specific, or provide “a roadmap” for how restorative justice might be implemented (p. 8). For Justice Green, the Gladue Court falls short in that it replicates an adversarial model, instead of creating a process more in line with a restorative justice approach.

5.2.2 Judges’ Perception of Restorative Justice Programs

Belknap and McDonald (2010) analyzed the experiences of 27 judges regarding the use of Indigenous sentencing circles in intimate-partner abuse cases. Most judges noted that the benefits of using sentencing circles was greater community involvement and awareness, as well as the fact that the accused takes responsibilities for their actions before the circle is convened.

The judges considered the following as essential conditions that must be met to use sentencing circles: the victim’s consent; support for the victim; the skills and ability of the community to deal with intimate-partner abuse cases (i.e. that the members of the circle are physically and emotionally available, that they understand the dynamics of intimate-partner abuse, etc.) and that the voluntary programs ordered by the court, such as rehabilitation programs on substance abuse, anger management, counselling are completed by the parties involved.

Judges noted that the most challenging aspect of sentencing circles was the time and resources required to convene and conduct them. Some communities lack the capacity to effectively convene them, notably because of a lack of neutrality on part of members of the circle. Some judges also questioned sentencing circles’ effectiveness in preventing abuse and were concerned about the safety of victims in the absence of incarceration.

5.3 Defense Counsel Experiences with Gladue

McDonald (2008) examined the effects of Gladue on defense counsel, which revealed a number of barriers to the implementation of Gladue principles. Many defense counsel indicated that they had not yet integrated Gladue into their strategies, as they were under the impression that it would not carry much weight in plea bargaining. Some were under the impression that Gladue principles were discriminatory towards non-Indigenous offenders, echoing some of the post-Gladue critique which is addressed by the Supreme Court in Ipeelee. Others felt that s. 718.2(e) would have only been successful if the offenders had lived on a reserve – which is a misconception addressed by the Gladue decision itself. Defense counsel also noted that accused persons in remand sometimes refused the preparation of a Gladue Report, as it would have lengthened their time in custody. Finally, counsel pointed to the lack of culturally appropriate alternatives to incarceration and limited access to well-prepared Gladue Reports as other barriers to the implementation of Gladue principles.

On the other hand, Clark’s 2016 evaluation of the Gladue Court paints a different picture. In addition to accused persons, courtworkers, judges, and Community Council members, Clark also interviewed defense counsel at the Gladue Court. Defense counsel used Gladue Reports prepared by courtworkers, but noted that it was often difficult to bring up accused persons’ background information from their Gladue Reports in court, as accused persons who had experienced trauma did not “want the painful details of their life raised in a forum” (p. 29). Defense counsel familiar with Gladue Court proceedings would speak about the Gladue Report in general terms, and point the presiding judge to a specific page; however, not all lawyers were sensitive to this. Defense counsel also indicated that culturally relevant release plans made it easier for judges to grant bail and diversion (p. 34).