Overrepresentation of Indigenous People in the Canadian Criminal Justice System: Causes and Responses

Addressing Overrepresentation

The report will now turn to some of the policies and initiatives designed and implemented with a view to addressing problems arising from systemic discrimination, colonialism, socio-economic marginalization, and culture clash. Five aspects will be addressed: first, changes to the Criminal Code regarding sentencing introduced by the Government of Canada and subsequently elaborated upon by the Supreme Court of Canada; second, the establishment of Gladue Courts; third, issues of bail and remand; fourth, a review of Gladue case law; and fifth, community initiatives and government relations with regard to addressing Indigenous justice issues. A common aim of the approaches discussed in the following sections has been to reduce the overrepresentation of Indigenous people in the criminal justice system, particularly in custodial facilities.

Sentencing Policy: Section 718.2(e) and Gladue

In June 1995, Parliament passed Bill C-41, a bill amending the Criminal Code with respect to sentencing. The new law came into force in 1996 and contained Criminal Code Section 718.2(e), which was intended to ameliorate the high rates of incarceration of Indigenous people. Section 718.2 reads: “A court that imposes a sentence shall also take into consideration the following principles: (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders” (emphasis added). In proposing this legislation, the government recognized that the rate of sentencing involving custody for Indigenous people was unacceptable and action was needed. As Rudin points out, before the amendments came into force “sentencing was the exclusive purview of judges who balanced the principles of deterrence, denunciation, incapacitation, and rehabilitation in their own personal fashion, subject only to appellate review” (2007: 40-41). The amendments reflected in s. 718 introduced a degree of restriction on judges’ decision making by imposing legislated sentencing guidelines. The primary aim of the amendments was to reduce the frequency of custodial sentences imposed by Canadian courts. The implications of s. 718.2(e) are addressed below but the reasons why it was needed fall under the rubric of systemic discrimination facing Indigenous people, as discussed in section 4.3, above.

Rudin points out that “[a]s with much legislation, the actual meaning of s. 718.2(e) remained somewhat vague until the Supreme Court of Canada released its decision interpreting the section in 1999 in the case of R. v. Gladue” (2007: 42). The Gladue appeal arose from a sentencing decision handed down by a trial court judge in British Columbia in the case of Jamie Gladue, an Indigenous woman convicted of murder. The sentence, which involved incarceration and probation, was appealed on the grounds the trial judge had not adequately considered the circumstances and heritage of the offender as an Indigenous person according to s. 718.2(e). The judge’s decision was based, in part, on the notion that because Ms. Gladue lived in an urban setting and not in a reserve community, she was estranged from her Indigenous heritage and way of life. The judge therefore concluded that Ms. Gladue was not subject to s. 718.2(e) whereby all reasonable and available sanctions other than imprisonment should be considered for all offenders, especially Indigenous offenders. The British Columbia Court of Appeal upheld the ruling of the trial court judge and the case then went to the Supreme Court of Canada.

In its response to the appeal, the Supreme Court of Canada left no doubt as to its position regarding Indigenous overrepresentation and s. 718.2 (e):

These findings [regarding Aboriginal overrepresentation] cry out for recognition of the magnitude and gravity of the problem, and for responses to alleviate it. The figures are stark and reflect what may fairly be termed a crisis in the Canadian criminal justice system. The drastic overrepresentation of aboriginal peoples within both the Canadian prison population and the criminal justice system reveals a sad and pressing social problem. It is reasonable to assume that Parliament, in singling out aboriginal offenders for distinct sentencing treatment in s. 718.2(e), intended to attempt to redress this social problem to some degree. Footnote 18
It arises also from bias against aboriginal people and from an unfortunate institutional approach that is more inclined to refuse bail and to impose more and longer prison terms for aboriginal offenders.Footnote 19

The Supreme Court of Canada’s judgment added weight to the government’s concerns about Indigenous overrepresentation, and affirmed the underlying principle and general guidance in s. 718.2(e). The Court also recognized the roles played by poverty, marginalization, and systemic discrimination in the overrepresentation of Indigenous people. Significantly, the Supreme Court of Canada’s judgment supported the idea – contrary to the view of the British Columbia trial court judge – that Indigenous people in urban areas, as well as in reserve communities and more remote and isolated areas, should be considered under s. 718.2(e).

The Supreme Court of Canada recognized the importance of sentencing alternatives for both Indigenous and non-Indigenous offenders. In the Indigenous context, alternatives are often categorized under the umbrella “restorative justice.” The Court referred to “restoring a sense of balance to the offender, victim, and community, and in preventing future crime.” This is very much a restorative approach to dealing with crime. However, Roach and Rudin (2000) predicted one year after the Gladue judgment that while it was positive in many respects, it was not likely to reduce the disproportionate rate of incarceration of Indigenous offenders, a prediction that appears to have been accurate. According to Roach and Rudin,

[a]lthough the court recognized the congruence between restorative justice and aboriginal justice, it also realized that such programmes are relatively rare and stressed the need to consider all possible alternatives to imprisonment for aboriginal offenders even if those alternatives do not have a cultural component (2000: 356).

The availability of viable, culturally relevant community-based programming has improved since the Supreme Court’s ruling in Gladue (see section 5.5, below). However, the proportion of Indigenous adults in provincial and territorial institutions has continued to increase substantially relative to non-Indigenous adults. Similarly, Aboriginal youth continue to be involved in the corrections system at disproportionate and increasing rates. Why is this so?

While the Supreme Court in Gladue was progressive in some respects, it was less helpful in others (Roach, 2009). Rudin notes that the court stated that s. 718.2(e) did not automatically mean an Indigenous person would receive a lesser sentence, and said further that when convicted for a serious violent offence, an Indigenous person would likely receive the same sentence as a non-Indigenous offender.Footnote 20 As Rudin points out, “[i]n the subsequent case of R. v. Wells – a conditional sentencing case – the court continued to send some mixed messages as to the impact of s. 718.2(e) in cases of violence” (Rudin, 2007: 43). According to Anand, “[i]f one of the functions of the Supreme Court is to clarify the law and provide effective guidance to lower courts, then Gladue is a failure” (Anand, 2000: 414). Rudin continues with the following regarding vagueness in the Gladue judgment:

What the court did not do in Gladue was to indicate to a sentencing judge how she was to obtain the information she needed to sentence according to the new provisions found in the Criminal Code. It was not clear how a legal system that had contributed to the over-incarceration of Aboriginal people was suddenly to reconstitute itself to redress the same problem that it had a hand in creating (Rudin, 2007: 43).

The Supreme Court in Gladue directed sentencing judges to look at alternative sentencing options, and to consider broad systemic and background factors that affect Indigenous people generally and the offender in particular. Following the lack of clarity expressed by the Supreme Court in Gladue, the ruling in a more recent case was intended to rectify the situation (R. v. Ipeelee, 2012 SCC 13). In Ipeelee, the Court reaffirmed the importance of Gladue and confirmed that it applies in all contexts, including when sentencing a long-term Indigenous offender for breach of a Long-Term Supervision Order. The Supreme Court noted two errors being made regularly by the lower courts when sentencing Indigenous offenders. The errors concerned a lack of understanding of Gladue principles as set out by the Supreme Court in Gladue, and the inconsistent application of those principles. In the Ipeelee ruling, the Supreme Court acknowledged with regret that despite Gladue, “section 718.2(e) of the Criminal Code has not had a discernible impact on the overrepresentation of Aboriginal people in the criminal justice system.” In fact, according to the Court, “statistics indicate that the overrepresentation and alienation of Aboriginal peoples in the criminal justice system has only worsened”.Footnote 21 As Rudin points out, “In Ipeelee the Court decried the failure of the system to answer the call of Gladue and renewed its call for changes in the way Indigenous offenders were sentenced by the courts” (Rudin, 2018: 2).

It is not unusual for Supreme Court rulings to be written in a relatively general manner, at which point governments and the lower courts are left to assign practical meaning and manage the realities on their own. In the case of the Gladue ruling, this is precisely what happened in Toronto on the initiative of the Ontario Court of Justice, as described later in this report. Other jurisdictions have not been so effective in adapting to Gladue.

Other, perhaps more serious, concerns have been raised with respect to the Gladue judgment. For example, there is a danger, identified by Roach and Rudin, that s. 718.2(e) and Gladue might result in net-widening for Indigenous offenders. Their concern is that judges might choose to apply conditional sentences as an alternative to imprisonment in instances when a less serious sanction might have been ordered prior to the arrival of s. 718.2(e) and Gladue. Footnote 22 As Roach and Rudin explain,

Conditional sentences, however, can result in net widening if they are ordered in cases where less intrusive sanctions would ordinarily have been ordered.... There are real grounds for concern that conditional sentences are resulting in net widening as judges apply them to offenders who would not normally have been subjected to actual imprisonment (2000: 369).

The use of a conditional sentence is more serious than commonly understood. It is not a probationary sentence, but a jail sentence of less than two years to be served in the community under certain conditions set by a judge. The breaching of the conditions associated with such a sentence could automatically lead to the actual incarceration of the offender for the remainder of their term. If Roach and Rudin are right and judges are applying conditional sentences when they would normally have handed down a less serious sentence such as a probation order, a fine, or a suspended sentence, then net widening is resulting in more serious sentences than perhaps are justified. The upshot, according to Roach and Rudin, is that “[a]t the most basic level, it is clear that prison populations have not decreased to the same extent as conditional sentences have been ordered. With over 28,000 conditional sentences being ordered in their first two years of existence, prison populations have not been reduced to nearly the same extent” (Roach and Rudin, 2000:369). In part, at least, this may be due to the relatively high rate of breaching the terms of conditional sentences by Indigenous offenders and the subsequent incarceration of those individuals.

A related concern is that judges may impose a conditional sentence of greater duration than if they had handed down a sentence of actual incarceration at the outset. This is especially concerning in light of the fact that Indigenous offenders, especially in the western provinces, are disproportionately likely to breach their conditions. The result may be that when an Indigenous offender is sent to prison for the remainder of their sentence after a breach, they may be incarcerated longer than if they had been sent to prison in the first place (Rudin, 2018).

Again, such problems can be explained by systemic discrimination in the criminal justice system. More up-to-date research is required to thoroughly address these issues.

The problem of breaching conditions, whether linked to fine payment, probation orders or conditional sentences, is serious for Indigenous offenders, and is largely tied to socio-economic marginalization. Dickson-Gilmore and La Prairie (2005) argue that Indigenous people are at higher risk of offending, re-offending, and breaching conditions due to their relative marginality in Canadian society. This marginality is characterized by the problems noted earlier in the report: poverty, unemployment, low educational attainment, poor housing, and poor mental and physical health. Dickson-Gilmore and La Prairie are careful to note that the severity of these conditions and the degree of Indigenous marginality vary among different groups and in different parts of the country. However, they discuss the emergence of a growing “Aboriginal underclass”, comprising mainly First Nation individuals living in reserve communities (2005: 35-36). Relatively speaking, this group is the most disadvantaged among all Indigenous groups in the country and therefore at greatest risk. Overall, however, Dickson-Gilmore and La Prairie confirm that social and economic marginality resulting from a history of living the colonial experience contributes to higher risk of offending, re-offending, and breaching conditions among Indigenous people. In the case of conditional sentences, this means a disproportionate likelihood of being sent to jail.

Have the policies represented by the Criminal Code amendment in the form of s. 718.2(e) and the subsequent Supreme Court judgment in Gladue had their intended effects? Certainly, the scale of the problem of Indigenous over-incarceration was recognized and the relevant motivation was present. Government and judicial support for the concept of alternatives to incarceration – community-based justice – was strongly indicated. However, not much appears to have changed. The incarceration rate for Indigenous offenders has continued to rise since the Gladue decision in 1999. Indigenous offenders continue to be incarcerated at levels significantly higher than non-Indigenous offenders. Judges often have little recourse to sentencing alternatives at the community level, although the Indigenous Justice Program in the Department of Justice is making headway on this problem. Net widening through the use of conditional sentences and the likelihood of breaching conditions are still serious potential problems. It would appear that, while s. 718.2(e) and Gladue were steps in the right direction, they are a work in progress (Knazan, 2009; Pfefferle, 2008; Roach, 2009; Rudin, 2009). As the Supreme Court stated in Ipeelee,

To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. (R. v. Ipeelee, SCC 13 2012)

Perhaps the difficulty lies in the intersection of two realities: the enormous scope of the problem and the limitations of the justice system in coming to grips with the fundamental issues underlying Indigenous overrepresentation. RCAP, among many others, has shown us that overrepresentation stems from the colonial experience, from socio-economic marginalization, and from culture clash. The resulting conditions facing Indigenous people as a whole create a higher risk of being involved in the system as an offender or a victim. It is these fundamental problems that must be addressed in a comprehensive and proactive way by courts, other justice institutions, and governmental and non-governmental institutions operating in other sectors such as health, education, housing, and employment.

The Establishment of Gladue Courts

Gladue Courts are plea and resolution courts with diversion being a possible resolution. Sentencing is part of the process as prescribed by the Supreme Court of Canada in Gladue. A further important factor is that the accused individual must plead guilty prior to their case being heard in Gladue Court. If a not-guilty plea is entered, the individual’s hearing would be held in regular trial court.

The number of Gladue Courts is steadily increasing across Canada. The first was at Old City Hall in Toronto in 2001 and others have followed. There are higher numbers of Gladue Courts in Ontario and British Columbia. However, caution should be taken when identifying a court as a Gladue Court. The assumption is sometimes made that because a court predominantly processes cases involving Indigenous persons, it is thus a Gladue Court. In fact, a true Gladue Court is characterized by certain specific factors relevant to the intent of s. 718.2(e) and the Supreme Court decision in Gladue. These factors, or goals, can be summarized as follows:

  • Directly address section 718.2(e) of the Criminal Code in order to reduce Indigenous incarceration;
  • Apply the Gladue principles identified by the Supreme Court, notably by understanding and accounting for the offender’s background and the history of marginalization, systemic discrimination, and socio-economic deprivation experienced by Indigenous peoples in Canada;
  • Encourage effective restorative justice/community-based justice alternatives to incarceration for Aboriginal offenders, developed through a culturally and individually appropriate process;
  • Encourage the development of resolution plans that will engage Aboriginal persons in their own rehabilitation; and
  • Provide opportunities for Aboriginal community agencies to engage in the rehabilitation of Aboriginal persons.

In order to achieve these goals, a Gladue Court requires the provision of detailed information regarding the offender to the presiding judge. This takes the form of Gladue Reports, which are prepared by trained experts who do relevant background investigations on individuals. Gladue Reports are usually prepared when the Crown is seeking a custodial sentence of at least ninety days for an out-of-custody individual or three additional months for an individual who is in-custody. Consistent with the Gladue ruling, Gladue writers may take weeks to document, through interviews with individuals who know the offender and other means, the life factors that have led the offender to their present state and to have committed a crime. Courts that do not have the capacity to access Gladue Reports generally do not meet the standards of Gladue because the presiding judge is not provided with the essential information to make a sentencing decision appropriate to the individual Indigenous offender, as indicated in Gladue.

Not every court applying Gladue principles has the benefit of a resident Gladue writer. While some courts in Ontario such as Toronto, Ottawa and Thunder Bay, for example, are supported directly by a Gladue writer, others require the assistance of Aboriginal Legal Services (ALS), the Toronto-based Indigenous legal support organization. ALS Gladue writers provide report writing services to at least twenty Ontario courts upon request.

Another essential component of the Gladue process is the availability and accessibility of culturally appropriate rehabilitative programs, often referred to as community-based justice programs. The Supreme Court in Gladue recognized the importance of such programs and also recommended that, if specifically Indigenous programs are not available, the court should attempt to refer the offender to any program as long as it is restorative in nature. This presents a challenge for many Canadian courts as restorative programs, especially those designed for Indigenous people, are still lacking in much of the country. While larger centres such as Toronto are relatively well equipped with these kinds of programs (for example, the Community Council at Aboriginal Legal Services in downtown Toronto), many communities are not. It therefore becomes important for local Indigenous communities to be supported in their efforts to provide restorative programming of their own design and management so that courts have appropriate alternatives to which offenders can be diverted. The Department of Justice has achieved success in this regard, as noted later in this report.

Similarly, Gladue Courts benefit significantly from the presence of an Indigenous Courtworker who often plays a key role in facilitating the Gladue process in several ways. Among other duties, the Courtworker explains the court process to the accused and determine if Gladue Court is appropriate, ensure the accused is connected with the court’s Duty Counsel (a legal aid lawyer who works at the courthouse and is often the first legal contact for accused individuals), work with the Crown prosecutor to identify the best diversion program for the individual, work with program providers to set up the diversion program, and advise the presiding judge as required.

A further essential component of an effective Gladue Court is the involvement of committed justice professionals, including judges, Crowns, and defence counsel, who are trained in Indigenous justice issues. However, this appears not to be present in all courts addressing Indigenous cases. An evaluation of the Aboriginal Youth Court in Toronto, for example, found that some courts in the Toronto area were attended by lawyers who had very little idea of Gladue and Gladue principles as set out by the Supreme Court, even though they were prosecuting and representing Indigenous persons (Clark, 2016a). Further, it became apparent that many defence counsel were not aware of the availability and the importance of culturally appropriate diversion programs. This appears to be changing in the Toronto area thanks to the efforts at increasing awareness by the judges at the Aboriginal Youth Court, the Old City Hall Gladue Court, and Aboriginal Legal Services. It remains a concern in other parts of Ontario and in other provinces and territories.

In recent years, courts designed to address sentencing, access to restorative justice programs, and the overrepresentation problem have been initiated in several locations across Canada. However, the various courts do not necessarily share the same structure or process.Footnote 23 For example, the sentencing circle concept is seen as relevant to Indigenous ways of addressing problems and finding solutions in a communal, supportive manner. It has taken hold in many venues involving Indigenous offenders and victims, including at the Toronto Old City Hall Gladue Court where sentencing circles are increasingly being held in a room other than a regular courtroom and take on a more informal character. Similarly, and more regularly, other courts are using the circle model. The Tsuu T’ina First Nation Court in Alberta is a good example. According to Spotlight on Gladue: Challenges, Experiences, and Possibilities in Canada’s Criminal Justice System, a report prepared by the Department of Justice Canada (2017a),

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 same report goes on to say,

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.

In British Columbia there are four First Nations (Gladue) Courts with more on the way. They accept referrals of Indigenous individuals who have pled guilty and take on most bail and sentencing hearings. These courts are similar in format and process to the Aboriginal Youth Court in Toronto. Proceedings are held in relatively informal settings where the judge works with a range of resource persons to devise an individualized healing plan for the offender. The offender is requested to return to court after a certain period of engagement with the plan so they can be monitored by the judge hearing the case. In the Aboriginal Youth Court, this responsibility is taken on more directly by the Crown prosecutor, with the judge’s approval.

The Cree-speaking Gladue Court based in Prince Albert, Saskatchewan is run by Cree justice professionals, including Cree judges and Crown prosecutors. It is unique in that it is a circuit court serving several First Nations in northern Saskatchewan. Similarly, the Gladue Court in Meadow Lake, Saskatchewan takes a restorative approach and conducts hearings in Dene, Cree or English (Department of Justice Canada, 2017a).

In addition to courts specifically established to apply Gladue principles, certain other specialized courts also operate effectively. For example, Domestic Violence Treatment Option Courts in Yukon and the Northwest Territories process mainly Indigenous offenders in a manner consistent with Gladue principles.

Relevant court-ordered programs are tied to the process and are aimed primarily at healing and reintegration (Clark, 2013). The courts monitor each individual’s rehabilitative progress and a judge makes a final sentencing determination. Similarly, Yukon and the Northwest Territories have established Wellness Courts, designed to provide rehabilitative support for offenders with issues of mental health, addiction or cognitive impairment (see Hornick, Kluz and Bertrand, 2011). It would appear that Gladue – together with acknowledgement of the serious overrepresentation of Indigenous people – has stimulated movement to address issues of fairness and equity through problem-solving in the criminal justice system.

It should be noted, however, that one size does not fit all. It is important to remember that community-based approaches that involve the court, such as circle sentencing, are not appropriate in all cases. As noted earlier, Indigenous peoples in Canada represent many different cultures, each having its own views on justice. For example, while court mandated sentencing circles can work well in Ontario or Saskatchewan, they do not fit with Inuit culture. Inuit prefer smaller group approaches to restorative justice (see Crnkovich, 1995). The importance of ensuring the relevance of programs to individual communities is discussed further below.

Issues of Bail and Remand

Bail remand, and pre-trial detention have been particularly serious issues requiring attention, as noted in section 4.3.2, above. Justice Knazan of the Ontario Court of Justice (2003) points to the recognition by those working in the criminal courts that once an individual has been denied bail and imprisoned for a pre-trial period, the likelihood is higher that they will also receive a custodial sanction at sentencing. Judges may not be aware they can be influenced by the fact of pre-trial detention (assumes a greater risk of some form) and subsequently assume the offender deserves further prison time at sentencing. Higher rates of pre-trial detention for Indigenous accused, particularly in view of a lack of appropriate community-based pre-trial alternatives, may then translate into an increased likelihood of custodial sentences.

Bail relates directly to issues discussed earlier regarding systemic discrimination, s. 718.2(e) and the Gladue decision. In its examination of Manitoba courts, the Aboriginal Justice Inquiry of Manitoba identified the denial of bail and pre-trial detention as concurrent problems commonly facing Indigenous accused (1991: 221-4; 360-1).Footnote 24 The Commissioners noted that, according to analyses of provincial court data, Indigenous men and especially women were significantly more likely to spend time in pre-trial detention than non-Indigenous accused. A major reason for the difference was the higher likelihood that an Indigenous accused would be denied bail. This view was also held by the Supreme Court in R. v. Gladue.Footnote 25 However, to the extent that unequal denial of bail and pre-trial detention are realities, at least in some jurisdictions, the causes of the problems lie in underlying practices. When a judge or justice of the peace makes a decision regarding bail and pre-trial detention, the following basic questions form part of their consideration: “Is this a dangerous person?” and “Is this a person who can be trusted?“ (Aboriginal Justice Inquiry of Manitoba, 1991: 100). The first question covers potential danger to the public, an individual, and/or to the accused individual themselves. The second question refers primarily to whether the accused would be likely or unlikely to adhere to bail conditions and to return to court on their hearing date.

The Manitoba Commissioners point out that while these questions are important, they are “inherently subjective” (Aboriginal Justice Inquiry of Manitoba, 1991: 100). They are subjective in the sense that the information required by the decision-maker contains a bias that often works against the accused Indigenous person. For example, information regarding education, employment, income, and permanent residency, which is typically sought from the accused, generally favours non-Indigenous individuals who are significantly more likely than Indigenous accused to have completed a certain level of education, have a job, earn a steady income, and have a permanent residence where the alleged offence was committed. Thus, bail may be less likely to be granted to an Indigenous accused than to his/her non-Indigenous counterpart. Consequently, according to the Manitoba Commissioners, pre-trial detention is more frequent for Indigenous accused.

The Criminal Code does not specifically address the question of bail for Indigenous offenders. In fact, as the case law material used in this report demonstrates, many judges remain unconvinced of the applicability of Gladue to bail applications. For example, the following formed part of a judge’s ruling in a bail application in the Provincial Court of Saskatchewan (R. v. Heathen, 2018 SKPC 29):

In four separate decisions over the course of 17 years, the Supreme Court of Canada has had the opportunity to declare that Gladue should be applied to bail hearings. Each time, the Court has chosen not to direct lower courts to take such a step. Even in Antic, when the Supreme Court laid out an explicit set of rules for bail courts to follow, the Court did not see fit to mention Gladue. It would seem that the Supreme Court of Canada is not interested in expanding Gladue to a bail context.Footnote 26

Nonetheless, as Justice Knazan says, “[a]ll the same, the Toronto Gladue Court addresses the particular circumstances of Aboriginal offenders at the bail hearing as an important part of considering ‘all available sanctions other than imprisonment that are reasonable in the circumstances’ as s.718(2)(e) requires” (2003: 11). This is a significant policy decision by the Toronto Gladue Court. It is premised on the realization noted by Knazan that “[a]s any lawyer knows ... the bail hearing becomes the most important proceeding because a detention order will effectively pre-determine the sentence as one of imprisonment.... Pre-trial detention is an obstacle to applying s.718(2)(e) and R. v. Gladue because imprisonment occurs before the judge can fulfill her role of considering the unique circumstances of Aboriginal offenders” (2003: 11-12; 2009).

One of the Manitoba Justice Inquiry’s “inherently subjective” factors in decision making regarding bail is the ability of the accused person to cover the cost of bail or provide a surety. This, as noted in section 4.1.2, above, is a form of systemic discrimination for Indigenous accused. Indigenous people are less likely to be employed or to have an income and are often alienated from family and community, making bail is a real problem. Pre-trial detention is almost inevitably the result in many courts. In the Toronto Gladue Court as in some other Gladue Courts, however, every effort is made to accommodate individuals who cannot cover bail or provide a surety by assessing the individual’s risk and by developing a pre-trial release plan. Bail is not guaranteed, but it is a real possibility for those who qualify by the standards set by the court. The court now has an Aboriginal Bail Program supervisor who is associated with the Toronto Bail Program and who interviews and screens accused without sureties for eligibility for release. The Toronto Bail Program agreed to adapt its guidelines so that Indigenous persons without a surety, including those with histories of failing to appear in court, can be considered for supervision.

Pre-trial detention or remand is a serious problem across the country for both Indigenous and non-Indigenous accused. Up to 60 percent of admissions to provincial or territorial jails are remands while approximately 40 percent are sentenced individuals. This places significant stress on the correctional system, as well as on the individuals in remand. As Rudin says, “[t]he importance of release on remand cannot be stressed [enough]” (Rudin, 2007: 53).

In June, 2011, Justice Marion Cohen of the Ontario Court of Justice, Youth Court Division began hearings in the Aboriginal Youth Court in Toronto, the first of its kind in Canada. In so doing, Justice Cohen was applying Section 38(2)(d) of the Youth Criminal Justice Act (YCJA), which states:

A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in section 3 and the following principles:… (d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons.

Section 38(2)(d) of the YCJA corresponds directly to s. 718.2(e) of the Criminal Code and is expressly designed to lower the high incarceration rate among Indigenous youth. Justice Cohen ran her court with a view to avoiding sentenced incarceration and pre-trial detention for youth. The Aboriginal Youth Court hears cases in a more relaxed atmosphere than regular youth court and diverts youth to culturally relevant programs in Toronto, particularly to the Community Council Project at Aboriginal Legal Services.Footnote 27 The court monitors the youth’s progress in diversion programming and the result is typically the withdrawal of charges. An evaluation of the Aboriginal Youth Court concluded the court was achieving positive results with respect to several measures, including re-offending (Clark, 2016a). The Toronto Aboriginal Youth Court is a model worthy of consideration in other jurisdictions.

Gladue Case Law Review

Gladue has not had the positive results many had expected. As Maurutto and Hannah-Moffat state,

Notwithstanding the promise of significant reforms, section 718.2(e) and subsequent case law have not significantly altered rates of incarceration for Aboriginal offenders. In fact, the imprisonment of Aboriginal people has increased since R. v. Gladue…. The Supreme Court of Canada itself recognized in R. v. Ipeelee [2012] the “worsening” overrepresentation of aboriginal people following the Gladue decision. Moreover, it reaffirmed the “inadequacy” and “failure” of Canadian courts “to take into account the unique circumstances of Aboriginal offenders that bear on the sentencing process.” (Maurutto and Hannah-Moffat, 2016: 458)

Incarceration statistics and relevant case law appear to confirm the statements made by Maurutto and Hannah-Moffat. An analysis undertaken for this report involved a limited review of case law in which the court referenced Gladue in sentencing. While the focus of the review was on Gladue citations, in some cases other rulings, such as Ipeelee, were also brought to bear on sentencing.Footnote 28

The case law review indicated certain trends. It demonstrated that judges in 2018 were more aware of Gladue principles and the significance of their application than they were in 2010 and, especially, in 2000. There appears to be a substantial degree of consensus on the question of the requirement to cite Gladue, at least. Similarly, Ipeelee now tends to be acknowledged as judges appear to accept that mandatory minimum sentences should not apply when Gladue principles are cited, and that Gladue principles should be applied in every case involving an Indigenous offender, including in cases addressing serious charges. On the other hand, while the frequency of judges referencing Gladue increased from 2000 and 2010 to 2018, there were still many cases where Gladue received only a cursory mention. Gladue Reports are not being requested in many cases and pre-sentence reports (PSRs) are used to fill the gap in knowledge of the individual offender. This continues to be problematic for two reasons. First, PSRs are used to assess risk. This can have negative impacts on the accused and can further result in net widening in terms of more incarceration and over classification of the offender in terms of jail security. (This point was made consistently over the years by the Office of the Correctional Investigator.)

Second, the absence of a Gladue Report, written by a trained Gladue writer, denies a judge the opportunity to fully understand the individual offender’s background and the life factors that led them to commit a crime. In turn, this decreases a judge’s ability to hand down a non-incarceration sentence appropriate to the individual offender, thereby failing to follow the Supreme Court of Canada’s ruling in Gladue.

Finally, review of the cases from 2018 suggests that there remains some disagreement among judges as to whether Gladue principles should apply to bail and remand. Judges who assume the negative position are often concerned primarily with public security and the perceived need to keep the offender in pre-trial detention. Those who favour granting bail, if reasonable, tend to agree that Gladue should apply to all Indigenous offenders because incarceration, whether as part of a sentence or pre-trial, is still incarceration and contradicts Gladue. Unsurprisingly, judges in the latter category, especially in 2018, were more likely to request a Gladue Report in order to fully understand the offender’s background and to grant bail with appropriate conditions.

While there have been positive changes in judicial approaches between 2000 and 2018, it appears that Gladue principles are still not being applied universally in sentencing or in bail decisions.

Community Initiatives and Government Relations

In 1991, the Government of Canada implemented the Aboriginal Justice Initiative (AJI). The five-year program was administered by the Department of Justice Canada, although it was established as a cost-sharing program with provincial and territorial governments. It aimed to support community-based justice projects such as diversion programs, community involvement in sentencing, and mediation and arbitration processes for civil disputes. In 1996 the government renewed and expanded the initiative and changed its name to the Aboriginal Justice Strategy (AJS). In 2002, the AJS was renewed for a further five years, and in 2007 it was renewed with enhanced funding until 2012. It was again renewed in 2012, 2013, and 2014. Most recently, it was renewed in the 2017 federal budget and was re-named the Indigenous Justice Program (IJP) with a permanent mandate. Like the AJS, the IJP is primarily intended to fund community-based initiatives and is the primary and most comprehensive federal program in support of Indigenous people and criminal justice.

The IJP supports Indigenous community-based justice programs that offer alternatives to mainstream justice processes in appropriate circumstances. The program has three main objectives: (i) to assist Indigenous people in assuming greater responsibility for the administration of justice in their communities; (ii) to reflect and include Indigenous values within the justice system; and, (iii) to contribute to a decrease in the rate of victimization, crime and incarceration among Indigenous people in communities with community-based justice programs funded by the IJP. (Department of Justice Canada, 2018b)

Programs vary somewhat in terms of specific purpose and structure; however, they all take a community-based justice approach. In the North, for example, community justice committees and youth justice committees are funded to carry out a variety of functions including family group conferences, elder counselling, and spousal mediation. Sentencing circles and healing circles are supported in other regions.

Is this approach effective? The final report of the summative evaluation of the AJS dedicates the following paragraph to conclusions on this question: “To what extent have community-based programs had an impact on crime rates in the communities where they are implemented?” The conclusion reads as follows:

Individuals who participate in the AJS programs are more likely to get rehabilitated than those who are sent into the mainstream justice system. The recidivism study conducted in support of this evaluation indicates that offenders who participate in AJS-funded programs are approximately half as likely to re-offend as are offenders who do not participate in these programs (Department of Justice Canada, 2007: 47).Footnote 29

This finding is encouraging. It is essentially replicated in the final report on the Evaluation of the AJS 2016:

For individuals accessing AJS-funded programs, recidivism rates are lower
than for those not participating, and the evaluation found anecdotal evidence that the programs can help bring about transformational change in the lives of participants and in some cases improve community safety (Department of Justice Canada, 2017b: iii).

Yet why are rates of Indigenous overrepresentation continuing to rise in spite of the work of the AJS/IJP, provinces and territories, legislators (s. 718.2(e)), and the Supreme Court (Gladue and Ipeelee)? Is there something lacking in our approach to community-based justice? The following analysis considers the working relationship between Indigenous communities and governments and between Indigenous communities and the criminal justice system.

Dickson-Gilmore and La Prairie (2005) raise questions about how funding agencies have, in the past, at least, employed “top-down” approaches to defining community and community needs that often do not serve the interests of the community itself. Proulx attributes this hegemonic approach to defining community as the result of “historically and geographically specific colonial discourses and practices”, including legislation such as the Indian Act (2003: 152). The alternative is a “bottom-up” definition “which recognizes that communities are self-defined by people as a reflection of their local interactions and participation” (B.C. Resources Community Project, 1998: 3 quoted in Dickson-Gilmore and La Prairie, 2005: 8). In other words, people are capable of defining themselves as a community according to the criteria that matter most to them. Further, the community – not a researcher or government– is best able to identify its needs, aspirations, and appropriate approaches to addressing problems. The community must, at the very least, directly engage with government in defining issues and creating innovative solutions (Ross, 1996; Warry, 1998; Proulx, 2003; Dickson-Gilmore and La Prairie, 2005; Clark and Landau, 2012; Iacobucci, 2013).

This is a critical point for many reasons. For example, consider the importance of culture and culture clash in the development of new approaches to Indigenous justice. The concept of culture clash suggests that Indigenous worldviews and approaches to justice are often significantly different from the principles and methods of the mainstream system. It is also the case that the problem of Indigenous overrepresentation is seen to exist, in large part, because the dominant justice system, including police, courts and corrections, has often been socially and culturally out of step with the needs of Indigenous people and the dynamics of Indigenous communities. The Aboriginal Justice Strategy Formative Evaluation noted the following:

Although there is support for the notion of restorative justice, which is critical to an Aboriginal approach to justice, there is still a need for more emphasis on Aboriginal values within the Canadian justice system. One community indicated that the most successful programs are the ones where cultural practices are emphasized (Department of Justice Canada, 2005: 27-28).

In response to this argument, governments and related organizations such as the RCMP often claim to have initiated “culturally relevant” or “culturally appropriate” community-based alternatives as an effective way to address problems. However, for such claims to be valid, it is essential for funding bodies and their affiliates, such as the RCMP, to take very seriously the proposals developed by communities and community-based groups (Clark, 2007). In every case, discussion must take place and culturally relevant justice alternatives supported if reasonable. Regrettably, this has not always happened and, until recently, there were concerns expressed in the literature and by Indigenous communities and organizations that top-down approaches prevented the initiation of culturally relevant and effective community-based alternatives. The Department of Justice Canada has worked to address these concerns; hence the relative success of the AJS/IJP with respect to Indigenous communities.

Since the AJI began in 1991, the federal government has developed a strong capability to enter into effective dialogue with provincial and territorial governments and with the Indigenous communities and community groups proposing community-based justice programs. It is understood that the essential question is this: What approach would best meet the needs of a community in ways that make most sense for the community itself? Governments and Indigenous communities alike are well served by accepting this as the key question and by working together to address it.

While governments are doing a reasonably good job supporting community-based initiatives, two problems with regard to policy and practice continue to negatively affect the development of community-based alternatives and the reduction of overrepresentation. First – and this is a serious critique of the mainstream justice system – the system often fails to support the attainment of community goals by not doing its part to make the intersections between Indigenous communities and the mainstream system work effectively. Second, there continue to be gaps in successfully addressing fundamental social and economic factors underlying Indigenous overrepresentation in the criminal justice system.

With regard to the first point, we see instances of the mainstream justice system not following through on its responsibilities – responsibilities which are essential in making the intersection of mainstream approaches and community alternatives viable. Two anecdotes from my own experience are symptomatic and may help to demonstrate the problem. As the first example, I have witnessed occasions where a long-standing and effective Community Justice Committee has been shut out of the business of rehabilitating young offenders simply because a newly arrived RCMP Detachment Commander did not agree with the concept of restorative justice and therefore would not divert pre-charge cases to the local committee (although restorative justice was claimed to be a fundamental aspect of RCMP policy). Similarly, I have witnessed a judge referring a man convicted of spousal assault to a Community Justice Committee for “traditional counselling” as part of his probation order when, in fact, the Committee was not at all prepared to deal with such offenders. When asked, the judge acknowledged never having spoken with the local committee about what they could and would take on. These examples suggest the mainstream justice system must fulfil its part of the bargain if innovative community-based approaches are to work. The mainstream system is, after all, still the dominant system. Until Indigenous communities achieve greater responsibility in managing their own justice matters, alternative approaches will work only if the mainstream system allows them to proceed and works closely and cooperatively with communities.

Even more serious is the social and economic marginality of Indigenous people in Canada. Earlier this report addressed the unacceptably high rates of poverty and unemployment, and the substandard levels of housing, education, and health care currently experienced in Indigenous communities. Again, in the words of RCAP, “[t]here is no doubt in our minds that economic and social deprivation is a major underlying cause of disproportionately high rates of criminality among Aboriginal people” (1996:42). Similarly, the Supreme Court of Canada recognized the extent of the problem in Gladue:

It is clear that sentencing innovation by itself cannot remove the causes of aboriginal offending and the greater problem of aboriginal alienation from the criminal justice system. The unbalanced ratio of imprisonment for aboriginal offenders flows from a number of sources, including poverty, substance abuse, lack of education, and the lack of employment opportunities for aboriginal people.Footnote 30

Like the decision to sustain the Aboriginal Justice Strategy and now the Indigenous Justice Program, policy decisions required to address issues of marginalization are largely the responsibility of the Government of Canada and, to a lesser extent, provincial and territorial governments. While the federal government continues to address those issues through various departments (e.g., Crown-Indigenous Relations and Northern Affairs Canada; Health Canada), it never seems to be enough. Social and economic marginalization, together with the disastrous intergenerational effects of residential schools, remains a critical problem and rates of overrepresentation continue to rise. While the current government is committed to implementing the Calls to Action by the TRC, much remains to be done; for example, the provision of clean drinking water to First Nation communities, the provision of adequate housing to northern communities, and the provision of sound health, education and employment programs in most Indigenous communities. Lack of success in these areas and others continues to be a major impediment to solving the problem of overrepresentation. Hopefully, the 2019 federal budget, which included substantial funding for Indigenous programs, will have positive effects.

A comprehensive strategy is required to address continuing problems of colonialism, social and economic marginalization, and systemic discrimination. The absence of such a strategy might be the most serious policy failing with respect to the overrepresentation of Indigenous people in the criminal justice system. Adequate resources must accompany positive policies and consultations with Indigenous communities and organizations must be open and in-depth. The problems will not be resolved quickly, in part because they have developed over many years, and in part because they are so serious. But the Government of Canada, together with provincial and territorial governments and Indigenous communities and organizations, has a responsibility to make reversing the marginalization of and discrimination against Indigenous people a priority.

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