A CALL FOR RECOMMITMENT AND ACCOUNTABILITY

2012 Ontario Federation of Indian Friendship Centres (OFIFC) 219 Front Street East Toronto, Ontario M5A 1E8 Tel: 416-956-7575 Fax: 416-956-7577 Website: www.ofific.org GLADUE RIGHTS A CALL FOR RECOMMITMENT AND ACCOUNTABILITY 1

2

GLADUE RIGHTS: A CALL FOR RECOMMITMENT AND ACCOUNTABILITY CONTENTS INTRODUCTION - ABOUT OUR POSITION... 5 ABOUT THE ONTARIO FEDERATION OF INDIAN FRIENDSHIP CENTRES (OFIFC)... 6 HISTORY OF GLADUE... 7 DEFINING THE BARRIERS:... 10 Differing Notions of Justice... 10 Inconsistent Gladue Services... 11 Absence of Alternatives to Custody... 16 Lack of Preventative Programming... 17 Current Political Climate... 18 RECOMMENDATIONS: ADVANCING A RECOMMITMENT TO GLADUE... 19 PRACTICAL AND PROCEDURAL... 20 Recommendations... 20 RESTORATIVE AND REHABILITATIVE... 22 Recommendations... 22 PREVENTATIVE... 23 Recommendations... 23 3

4

INTRODUCTION ABOUT OUR POSITION It is almost nine times more likely that an Aboriginal person will be incarcerated by the Canadian justice system than a non-aboriginal person. 1 Despite the potential of the landmark 1999 Gladue case to decrease the overrepresentation of Aboriginal people in the criminal justice system, it has been over a decade since the Supreme Court s ruling and rates have not declined. While the overall incarceration rate for both provincial and federal institutions across Canada is 130 per 100,000 adults, the incarceration rate for Aboriginal people is 1,024 per 100,000 adults. 2 According to 2006 Census data, 2.7% of the Canadian population self-identified as Aboriginal. In stark contrast, the Office of the Correctional Investigator reported that Aboriginal offenders make up 18.5% of federally incarcerated inmates and estimates that, should these carceral trends continue, Aboriginal inmates could account for 25% of the federal inmate population in less than a decade. 3 When controlling for gender, the incarceration rate has already far surpassed this threshold for women as currently 30% of all female inmates selfidentify as Aboriginal. 4 While Canada s federal incarceration rates experienced an overall decline of 12.5% from 1996-2004, the rate of First Nations inmates committed to federal institutions rose by 21.7%, and the rate of First Nations women inmates rose by 74.2% during this same time period. 5 Tragically, the situation for Aboriginal youth in custody mirrors these trends and in 2000, 41.3% of incarcerated Aboriginal offenders were 25 years or younger. 6 In Ontario, Aboriginal people account for 2% of the overall population, but make up 9% of the provincially incarcerated population according to 2006 census data. 7 While these statistics are shocking, they are not new. Overrepresentation in the justice system today is linked to Aboriginal people s long, entrenched history with the Canadian justice system through which colonial regimes including the reserve system, residential schools, and child welfare have been strictly regulated. The effects of the Canadian justice system s reinforcing role in the systematic banning of traditions and cultural practices, the outlawing of Indigenous governance structures, the regulation of economic pursuits, and the breakdown of family life have had a lasting impact on the social and economic marginalization of Aboriginal people in today s society. These colonial legacies have been passed down to younger generations and have been manifested as social ills perpetuating cycles of lateral violence, victimization, sexual abuse, and subsequently, poverty, addictions, and the criminalization of a disproportionate number of Aboriginal people. Through the Gladue ruling, the Supreme Court sought to recognize this history and called for a change in the sentencing practices of courts across Canada in an effort to limit the use of 1 Mann, Michelle M. (2010) Incarceration and the Aboriginal Offender: Potential Impacts of the Tackling Violent Crime Act and the Corrections Review Panel Recommendations. Aboriginal Policy Research: Exploring the Urban Landscape (Volume VIII) 233. 2 Ibid. 3 Office of the Correctional Investigator of Canada. Backgrounder: Aboriginal Inmates. Retrieved on January 16, 2012 from: http://www.oci-bec.gc.ca/rpt/annrpt/annrpt20052006info-eng.aspx 4 Ibid. 5 Ibid. 6 Ibid. 7 Statistics Canada. Aboriginal people as a proportion of admissions to adult provincial/territorial sentenced custody, and as a proportion of the general population, 2007/2008. Retrieved on January 16, 2012 from: http://www.statcan.gc.ca/daily-quotidien/090721/dq090721b-eng.htm 5

incarceration on Aboriginal offenders. Guidelines were set out which guided the application of sentencing provision of the Criminal Code. It has become clear that significant barriers have prevented Gladue from being properly applied and affecting a downward shift on the rates of incarceration. These barriers include: Differing notions of justice; Inconsistencies in Gladue services and their uniform application; The reluctance of the criminal justice system to accommodate Gladue; An absence of alternatives to custody; and The current political climate. This paper aims to examine these barriers and provide recommendations for the application of Gladue principles at every stage of the justice system. Through a review of the Supreme Court s initial guidelines for the practical application of Gladue, as well as recent case law that has expanded the scope of Gladue, the paper will reveal the inconsistencies inherent in the current delivery of Gladue services across Canada, as well as within the province of Ontario. The analysis will expose the systematic barriers contributing to the current patchwork of underfunded programming and practices that are in place nationwide. Finally, specific recommendations in the areas of service provision and access to services will be advanced. The OFIFC believes that the onus of ensuring that the principles of Gladue are upheld is on the government together with key players within the justice system. There is a critical need for governments to ensure that the appropriate programming and supports are in place so that the principles of Gladue are viable options whenever Aboriginal people come before the law. There is also a need for dedicated investments to meet the growing needs of urban Aboriginal communities as it is estimated that 70% of all Aboriginal people sentenced to penitentiaries are either residents of urban (non-reserve) communities, or committed their offences off reserve. 8 Finally, the current political climate promoting the return to a retributive and punitive approach to criminal justice will inevitably see the rates of over-incarceration of Aboriginal people continue to increase unless serious care is taken to address the root causes of over-incarceration and a serious recommitment to the principles of Gladue is acted upon. ABOUT THE OFIFC The Ontario Federation of Indian Friendship Centres (OFIFC) is a provincial Aboriginal organisation representing the collective interests of twenty-nine member Friendship Centres located in towns and cities throughout the province. Friendship Centres are not-for-profit corporations which are mandated to serve the needs of all Aboriginal people regardless of status and are the primary service delivery agents for Aboriginal people living in urban areas. The OFIFC recognized the needs of Aboriginal people in navigating a foreign, westernized system of justice early on and made the provision of justice services for urban Aboriginal communities a priority since the OFIFC s inception. The Aboriginal Criminal Courtwork (ACCW) Programme is one of the OFIFC s longest running programmes. First developed in the 1960s, the ACCW was developed to support urban Aboriginal people who were coming to Friendship Centres and required specialized information about their rights and the operation of the 8 The Solicitor General of Canada as quoted by McDonald, Rana. (2008). The Discord Between Policy and Practice: Defence Lawyers use of Section 718.2 (e) and Gladue. University of Manitoba. 90. 6

Canadian justice system. Today, the OFIFC s justice initiatives include Criminal, Family, and Combined Courtworkers, Community Justice Programs, and one Gladue Writer. Courtwork Programs are delivered by thirty three Courtworkers in nineteen Friendship Centres and three Delivery Sites across Ontario. The Community Justice Programs are delivered at five Friendship Centres with one regional program encompassing three Friendship Centres while the Gladue Writer delivers services at one Friendship Centre. The goals of the Justice Initiatives Programs are to support Aboriginal people in better understanding their rights, options and responsibilities when appearing before the justice system and to ensure that the individual receives fair and equitable legal representation.the OFIFC recognizes the many systemic factors that contribute to an Aboriginal person s involvement with the justice system and for this reason, we support a wholistic, wraparound model of service provision through the design of a number of programs that are administered and delivered by local Friendship Centres in areas such as health, family support, children and youth, employment and training, and culture. Connections and referrals to specialized programming for victims, the accused, and their families help to restore balance to communities and heal offenders. The OFIFC s vision is to improve the quality of life for Aboriginal people living in an urban environment by supporting self-determined activities which encourage equal access to, and participation in, Canadian Society and which respects Aboriginal cultural distinctiveness. HISTORY OF GLADUE A number of high profile reports and inquiries that paid attention to the treatment of Aboriginal people before the law preceded the legislative amendments that would result in the 1999 R. v. Gladue ruling. The rates of over-incarceration of Aboriginal people were specifically documented in both the 1987 report of the Canadian Sentencing Commission and the 1988 Daubney Committee report Taking Responsibility. 9 By 1996, the special report of the Royal Commission on Aboriginal people (RCAP) Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada, in analyzing the state of the Canadian justice system, had concluded that the justice system had failed Aboriginal people. The report attributed this failing in part to the drastically differing worldviews between Aboriginal and non-aboriginal people in relation to justice and the process for achieving justice. Furthermore, the overincarceration of Aboriginal people and higher rates of crime experienced by Aboriginal people was intrinsically linked to historic and contemporary effects of colonialism. 10 That same year, Parliament attempted to address the overrepresentation of Aboriginal people in the criminal justice system by mandating the consideration of the circumstances of Aboriginal people in its sentencing reform Act, Bill C-41. 11 The result of the reform was the implementation of Section 718.2(e) of the Criminal Code which states 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. 12 9 McDonald, Rana. (2008). The Discord Between Policy and Practice: Defence Lawyers use of Section 718.2 (e) and Gladue. University of Manitoba. 2. 10 Royal Commission on Aboriginal people. (1995). Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada. 11 Stephens, Megan. (2007). Lessons From the Front Lines in Canada's Restorative Justice Experiment: The Experience of Sentencing Judges. Queen s Law Journal. 26. 12 Criminal Code, R.S.C. 1985, c. C-46, s. 718.2(e), online: Department of Justice Canada. Retrieved from: http://laws.justice.gc.ca 7

The full effect of Parliament s sentencing reforms on Aboriginal offenders was first seen in R. v. Gladue, the landmark decision in which the Supreme Court of Canada found the lower courts to have erred in their interpretation of Section 718.2(e) of the Criminal Code and identified a framework for how trial judges should proceed in applying this important sentencing provision by taking into account both the purpose of the statute, and the intention of Parliament. 13 Supreme Court Justices Cory and Iacobucci noted that Parliament s intent in amending the Criminal Code s sentencing provisions were remedial in nature and explicitly directed at decreasing the rate of over-incarceration of Aboriginal people by promoting alternatives to incarceration, stressing the value of restorative justice measures. 14 The limited yet direct responsibility of sentencing judges to take into account the complex historical factors that contributed to the appellant s crime and to respond to the wider systemic issues of over-incarceration of Aboriginal people is clearly highlighted: The unbalanced ratio of imprisonment for [A]boriginal offenders flows from a number of sources, including poverty, substance abuse, lack of education, and the lack of employment opportunities for [A]boriginal people. It arises also from bias against [A]boriginal people and from an unfortunate institutional approach that is more inclined to refuse bail and to impose more and longer prison terms for [A]boriginal offenders. There are many aspects of this sad situation which cannot be addressed in these reasons. What can and must be addressed, though, is the limited role that sentencing judges will play in remedying injustice against [A]boriginal peoples in Canada. Sentencing judges are among those decision makers who have the power to influence the treatment of [A]boriginal offenders in the justice system. They determine most directly whether an [A]boriginal offender will go to jail, or whether other sentencing options may be employed which will play perhaps a stronger role in restoring a sense of balance to the offender, victim, and community, and in preventing future crime. 15 The framework for sentencing judges set out in R. v. Gladue identifies the paramount necessity of the judiciary to take into account the unique systemic and background factors that have lead to bringing an Aboriginal offender before the courts as well as the importance of considering restorative justice approaches to sentencing. It is noted that sentencing decisions must be made on a case-by-case basis taking into account issues such as the combination of systemic or background factors influencing an individual in committing an offence, the effects of poverty, substance abuse, overt racism, community breakdown, and whether imprisonment is a fit sentence for a particular offender. 16 In discussing the duty of the sentencing judge in cases involving Aboriginal offenders, R. v. Gladue makes it clear that the unique situation of an Aboriginal offender must always be considered and that the only discretion afforded to judges is that of the determination of a fit sentence. 17 While it has been argued that there has been little direction as to the practical way in which the interpretation of Section 718.2(e) of the Criminal Code and the principles of Gladue ought to be procedurally adopted by the courts, R. v. Gladue does provide some guidelines to orient the practical application of the legislation: How then is the consideration of s. 718.2(e) to proceed in the daily functioning of the courts? The manner in which the sentencing judge will carry out his or her statutory duty may vary from case to case. In all instances it will be necessary for the judge to take 13 R. v. Gladue, [1999] 1 S.C.R. 688 para 25 14 Ibid. para 47-48 15 Ibid. para 65 16 Ibid. para 80 17 Ibid. para 82 8

judicial notice of the systemic or background factors and the approach to sentencing which is relevant to [A]boriginal offenders. However, for each particular offence and offender it may be that some evidence will be required in order to assist the sentencing judge in arriving at a fit sentence it will be extremely helpful to the sentencing judge for counsel on both sides to adduce relevant evidence. Indeed, it is to be expected that counsel will fulfill their role and assist the sentencing judge in this way. 18 [emphasis added] The guidelines do emphasize the importance of offenders background information to the decisions of the sentencing judge and cautions that Aboriginal accused cannot receive automatic lesser sentences on the basis of their self identification alone. While these important stipulations provide a note of caution in the careful application of s. 718.2(e), they are not intended as deterrents to applying the principles of Gladue under any circumstances, including very serious offences, or cases in which an Aboriginal accused may not be connected to a historic Aboriginal community. While the Supreme Court of Canada did name sentencing judges as those holding the decision-making power regarding Gladue, an additional responsibility was entrusted upon defense counsel to be active and vigilant in providing the necessary relevant information to the court. 19 Invariably, this has not been the case as a meaningful application of Gladue principles has not been adopted nation-wide. What has resulted is a patchwork of Gladue services, unmet needs, and an unwavering increase in the rates of Aboriginal incarceration. While there are ongoing inconsistencies in effectively applying the principles of Gladue in the sentencing of Aboriginal accused, there have also been significant advancements and remedial appeals that have promoted the expansion of Gladue s scope. The Ontario Superior Court of Justice has ruled that the principles of Gladue apply to bail sentences in R. v. Bain and R. v. Crawford. In the former case, Justice Archibald ruled that clearly the principles of Gladue are overriding principles in the justice system from the time a person comes into the justice system to sentence." 20 Gladue has also been applied to the length of parole ineligibility in R. v. Courtereille where the British Columbia Court of Appeal reduced the Aboriginal appellant s parole ineligibility from 14 to 12 years. 21 In another Ontario Court of Appeals case regarding parole ineligibility for a life sentence, R. v. Jensen, the Ontario Superior Court of Justice noted that despite the severity of the case, the judiciary should not read Gladue as saying that there are cases in which the Gladue principles do not apply... the Gladue principles remain applicable in all cases where an [A]boriginal person is the offender. 22 Most recently, in March 2012, the Supreme Court of Canada s decision in R. v. Ipeelee 23 reaffirmed the Court s commitment to the principles of Gladue and sent a clear message to sentencing judges across Canada that alternatives to incarceration must be sought in all cases involving Aboriginal accused. 18 Ibid. para 83 19 Turpel-Lafond, as cited by McDonald, Rana. (2008). The Discord Between Policy and Practice: Defence Lawyers use of Section 718.2 (e) and Gladue. University of Manitoba. 3. 20 Roach, Kent. (2009). One Step Forward, Two Steps Back: Gladue at Ten and in the Courts of Appeal. Criminal Law Quarterly, (54). 502. 21 Ibid. 499. 22 Ibid. 500. 23 R. v. Ipeelee [2012] S.C.C. 13. 9

DEFINING THE BARRIERS DIFFERING NOTIONS OF JUSTICE Critical to the analysis and evaluation of justice policy issues that directly affect Aboriginal people is the recognition and consideration of the fundamentally different worldviews of mainstream Western society and many Indigenous cultures. A traditional understanding of justice in many Aboriginal cultures relates to the maintenance of harmony and balance within a community. Should that harmony be compromised, a fit sentence would be one that takes into account the needs of both the offender and victim, the values of the larger community, and the steps necessary to restore balance. In Green s Justice in Aboriginal Communities he notes this distinction: In the mainstream justice system, much emphasis is placed on punishment as a means of achieving safer communities. Jail is seen as the most effective tool in achieving this. Alternatively, Green found that Aboriginal people consulted throughout his study put forward perspectives on justice that showed a greater emphasis on healing and reconciliation and on finding alternatives to jail. 24 A discussion of Aboriginal conceptions of justice and criminal sentencing was included in R. v. Gladue in which it was acknowledged that a diversity of Aboriginal justice practices exist and that while not all Aboriginal people will prescribe to notions of traditional justice: What is important to recognize is that, for many if not most [A]boriginal offenders, the current concepts of sentencing are inappropriate because they have frequently not responded to the needs, experiences, and perspectives of [A]boriginal people or [A]boriginal communities. 25 Under the Canadian justice system, in instances where the harmony and balance in communities is broken, there is a reliance upon incarceration to warehouse offenders, many of whom suffer from histories of substance abuse addiction and mental illness. Canada s high incarceration rates eclipse those of most industrialized democracies and in terms of the rate of youth incarceration, the Department of Justice reports that Canada leads all other Western nations, including the United States, in terms of locking up young people. 26 Not only are the root causes and factors influencing criminality often not dealt with through the carceral system, but it is a vastly more expensive way of dealing with crime. According to the Adult Correctional Services in Canada: The cost of imprisoning people is typically higher than supervising them in the community (e.g. while they are on probation, serving a conditional sentence, etc.). In 2008/2009, the provinces and territories spent slightly over $1.4 billion to operate prisons, compared to about $299 million to supervise offenders in the community. 27 24 Green, Ross Gordon. Justice in Aboriginal Communities: Sentencing Alternatives. Purich Publishing. Saskatoon, Saskatchewan. 28. 25 R. v. Gladue, [1999] 1 S.C.R. 688 para 70-74 26 Department of Justice. The Youth Criminal Justice Act: Summary and Background. Retrieved from: http://www.justice.gc.ca/eng/pi/yj-jj/ycja-lsjpa/back-hist.html 27 Calverley, Donna. (2009). Adult Correctional Services of Canada 2008/2009. Statistics Canada. Retrieved on January 22, 2012 from: http://www.statcan.gc.ca/pub/85-002-x/2010003/article/11353-eng.htm#a8 10

This disconnect regarding the concept of a responsive, restorative justice system has high fiscal and societal costs. In a December 2011 article on Bill C-10, the Canadian government s crime legislation that stands to increase incarceration rates and disproportionately affect Aboriginal offenders, Kenora, Ontario defense counsel Peter Kirby observed: Instead of putting money into improving living conditions and rehabilitation programs, the government appears content to make jails the residential schools of the 21st century. 28 INCONSISTENT GLADUE SERVICES Despite case law that has reinforced the scope of Gladue, confirming that Section 718.2(e) of the Criminal Code should apply in all instances where an Aboriginal person comes into conflict with the justice system, the current processes across the country and within provincial/territorial jurisdictions reveal serious inconsistencies and service delivery gaps. Researchers have found that challenges contributing to the uniform, equal application of Gladue can be attributed in part to a justice system that is resistant to change and jurisdictions lack of uniform approach to sentencing using Gladue principles. 29 If Gladue remains an important step forward in recognizing the failures of the justice system with respect to Aboriginal people, its implementation at a national level represents two disappointing steps back: the failure to reduce Aboriginal overrepresentation and the focus on the seriousness of the offence. Indeed, some of the cases even demonstrate a third step back, namely an acceptance of a pessimistic and legally wrong idea that some repeat and serious offenders have placed themselves beyond the purview of Gladue. 30 The challenge in practical process is one further hampered by a lack of education in Aboriginal history and current circumstances by representatives at all levels of the criminal justice system, the expectation of fast and efficient criminal trial sentencing, a chronic underfunding of Gladue services, and most acutely, the lack of investment in culturally appropriate alternatives to custody including preventative programming and services. With each jurisdiction in Canada having responsibility for the delivery of its own provincial or territorial justice systems, the regional practices in adopting Gladue principles vary significantly across the country as well as within provinces and territories. One consistency in the overall operation of the criminal justice system across jurisdictions is that of the adherence to a managerial efficiency approach to the administration of criminal justice that provides for little time for cases to be meaningfully presented by already overtaxed defense counsel. 31 But this is where the similarities in Gladue service delivery end. A National Snapshot Ontario maintains the highest profile in terms of programmatic advancements in promoting the principles of Gladue. Aboriginal Legal Services of Toronto (ALST) and Legal Aid Ontario have established the first Gladue Courts in Canada as well as available services including Gladue 28 Kirby, Peter. (2011). Crime bill cuts concessions to aboriginal circumstance. Winnipeg Free Press. http://www.winnipegfreepress.com/opinion/westview/135086603.html 29 Stephens, Megan (2007). Lessons From the Front Lines in Canada's Restorative Justice Experiment: The Experience of Sentencing Judges. Queen's Law Journal. 33(1). 42. 30 Roach, Kent. (2009). One Step Forward, Two Steps Back: Gladue at Ten and in the Courts of Appeal. Criminal Law Quarterly. (54). 474. 31 McDonald, Rana. (2008). The Discord Between Policy and Practice: Defence Lawyers use of Section 718.2 (e) and Gladue. University of Manitoba. 147. 11

caseworkers, report writers, and the support of a dedicated community counsel. 32 ALST provides services within Toronto and surrounding Southern Ontarian communities and has been at the forefront of promotion and awareness efforts through training sessions and national conferences. Taking a similar approach, Legal Services Society (LSS) of British Columbia, the province s legal aid authority, has been advocating for a wider application of Gladue in B.C. courts through the promotion of Gladue reports. In B.C. intensive training sessions have resulted in a roster of skilled Gladue Writers that is maintained and called upon on a freelance basis to meet the needs of the courts. The roster aims to have writers from different regions of the province provide culturally-appropriate reports and referrals from across the province. 33 The Yukon and Québec have each begun to increase the use of Gladue reports produced in a similar format as ALST and British Columbia s LSS, but with a less standardized application or mandate. While these examples represent a concerted effort at promoting a greater awareness of Gladue, in each instance the services are stretched, the resources are short-term, demand is high, and gaps still exist in service to clients. In the majority of other provinces and territories, there has not been a consistent, programmatic use of Gladue. Some jurisdictions struggle not only with the implementation of Gladue, but also with a practical understanding of the seminal legislation and the Supreme Court s direction. Through the use of a qualitative methodological approach to the question of why Gladue has not had a significant impact on the over-incarceration of Aboriginal people in Manitoba, Sociologist Rana McDonald conducted extensive interviews with criminal defense lawyers in Winnipeg and found important insights into the discord between policy and practice that is happening in Manitoba, and presumably, in other jurisdictions across the country. In McDonald s research, she consulted with 40% of the criminal defense lawyers in the city of Winnipeg, all of whom had experience representing Aboriginal clients, but most of whom admitted to a limited use of Gladue principles. The interviews, conducted in 2008, showcase the disregard for the consideration of the unique circumstances of Aboriginal people by defense lawyers as masked by the adherence to misguided principles of race-neutrality or equal treatment of all clients. 34 In many cases, defense lawyers upheld this rhetoric while making altogether false statements about Gladue including ideas about principles not applying to urban Aboriginal accused or in cases of more serious or violent offences. 35 McDonald s research also shed light on a reluctance or outright unwillingness of defense lawyers to see themselves as agents of social change. 36 A common theme in the lawyers responses identified a frustration with government s expectation to solve social issues at the criminal sentencing stage: You can t rectify the issue of Aboriginal over-incarceration and all of its social causes through sentencing. If those issues are so recognizable that we are prepared to put that section into the Criminal Code, why are we not putting them into the social milieu and out of the Criminal Code? 37 Furthermore, one lawyer interpreted Section 718.2(e) as only a symbolic political gesture, as Gladue only provides minimal guidance not enough to affect legal procedures and practice. 38 32 Aboriginal Legal Services of Toronto. Retrieved from: http://www.aboriginallegal.ca/gladue.php 33 Personal Correspondence. Telephone Call. Legal Services Society of British Columbia. January 2012. 34 McDonald, Rana. (2008). The Discord Between Policy and Practice: Defence Lawyers use of Section 718.2 (e) and Gladue. University of Manitoba. Chapter 4. 35 R. v. Gladue, [1999] 1 S.C.R. 688 36 McDonald, Rana. (2008). The Discord Between Policy and Practice: Defence Lawyers use of Section 718.2 (e) and Gladue. University of Manitoba. 83. 37 Ibid. 79. 38 Ibid. 81. 12

The study concluded that, tragically, the cynical and misinformed stances of the majority of the surveyed defense lawyers had led to a shocking misunderstanding of the principles of Gladue and their subsequent absence in the majority of defense strategies. To apply Gladue principles in cases involving Aboriginal offenders requires an understanding of the history of colonization in Canada and the lasting effects that this history has had on Aboriginal people. The Supreme Court made this expectation clear directing counsel to produce the necessary background information on clients and for sentencing judges to take notice of the background and systemic factors that contribute to the current issues faced by Aboriginal accused. Representatives at all levels of the criminal justice system are expected to be working from a place of cultural competence when making decisions that have an impact on Aboriginal accused and their communities. This cultural awareness and understanding is cited as the primary reason for Saskatchewan s ability to easily integrate Gladue principles into sentencing. In conversation with a criminal law representative from Legal Aid Saskatchewan, the consistent application of Gladue principles in Saskatchewan was associated with both the province s demographics and the thorough cultural awareness training of criminal justice system representatives. This environment has ensured that Gladue principles are upheld. The systemic background issues that contribute to the circumstances of Aboriginal offenders are taken as judicial notice in Saskatchewan without the need for lengthy reports that can delay sentencing. 39 The Saskatchewan approach was suggested as one more in tune with the Supreme Court of Canada s demand for a learned counsel and judiciary. Saskatchewan courts quite often depend on Gladue principles being incorporated into pre-sentence reports which include information on an accused s background and current circumstances and focuses on a comprehensive treatment plan that will help the court find alternatives to incarceration. Pre-sentence reports within the criminal justice system in Saskatchewan are prepared within 4-6 weeks, but are guaranteed in 2 weeks if the accused is in custody awaiting trial. 40 The Saskatchewan model was suggested as one that is least burdensome on the criminal court system and contingent on an educated, experienced judiciary and counsel who are knowledgeable about the circumstances of Aboriginal people in the province. 41 While the impression of sentencing fairness described by Legal Aid Saskatchewan does suggest a way forward in promoting the consistent application of Gladue, it should be noted that there have been successful Crown appeals to Gladue-inspired sentences in Saskatchewan that question the reliable commitment of the province s courts to Gladue. 42 Still, the day-to-day criminal court experience of Aboriginal people in Saskatchewan merits further research as it stands as a viable approach at normalizing the use of Gladue in all circumstances where an Aboriginal accused is before the courts. The Practical Application of Gladue in Ontario The most widely known procedural adoption of Gladue has been the establishment of the Gladue Courts by Aboriginal Legal Services of Toronto through Legal Aid Ontario in Toronto, the Greater Toronto Area (GTA), and more recently, some outlying communities including Sarnia. In these Southern Ontarian municipalities, the establishment of Gladue Courts, a 39 Personal correspondence with Legal Aid Saskatchewan, January 27, 2012. 40 Ibid. 41 Ibid. 42 Roach, Kent. (2009). One Step Forward, Two Steps Back: Gladue at Ten and in the Courts of Appeal. Criminal Law Quarterly. (54). 479-487. 13

Gladue caseworker program, and Gladue aftercare workers have created a network of support and advocacy for offenders and an important source of information for the courts. 43 In a three-year evaluation of the Gladue caseworker program from 2004-2007, some important challenges were identified including an increasing demand for Gladue reports from outside of Toronto and Brantford, the insufficiency of current investments, as well as concerns about the time it takes to write the very thorough reports. 44 In the Year Two evaluation of ALST s Gladue courtworker program it is stated that: Some justice personnel have suggested preparing short, expedited and stand-down reports, partly as a solution to the time issue. A report could be prepared based on one meeting with the offender and the development of sentencing options. However, this falls far short of the areas covered by Gladue reports which, according to the justice respondents, are their major strength. These short reports appear to be closer to the nature of the PSRs that are now readily available, except that the disposition options would be non-custodial. It is not clear that such reports would adequately meet the needs of either the court or the offender. 45 While the evaluation cautions that changes to the format of the reports may compromise their usefulness in court, constructive changes to reporting are an important consideration in the evolution of the adoption of Gladue by more courts so that processes can be easily integrated. The Year Two Evaluation goes on to list five judges responses to the ways in which the Gladue caseworker program can better assist them in following the requirements of section 718.2(e). Of the six documented suggestions, 50% of the responses call for an expedited Gladue report writing process. 46 When asked specifically about Gladue Reports, the judges requested expedited reports, summaries, and an emphasis on the most important information with defined recommendations for a healing plan presented in an accessible way. 47 One judge felt that the timeframe of 4-6 weeks for a Gladue Report was far too long, especially when offenders are being remanded during this time awaiting trials or sentencing court dates. 48 While these suggestions were put forward in 2004-2007, the current process has writers preparing the reports in much the same intensive way. At the 2011 National Research Conference on Urban Aboriginal people, Fostering Biimaadiziwin, a current report writer with ALST notes the continued importance of detailed background information: [t]he historical portion of the Gladue report is often the most cumbersome. It requires chronological accuracy and logical flow. 49 The judiciary s expectation for expediency in report writing could be taken as a sign that the judiciary in some jurisdictions like Toronto is increasingly aware of Gladue, is amenable to taking judicial notice of the systemic background factors that have contributed to an offender s current circumstances, and are confidently prepared to consider alternatives to incarceration in more cases without the need for excessively long biographical Gladue reports. 43 For more information see ALST website: http://www.aboriginallegal.ca/gladue.php 44 Aboriginal Legal Services of Toronto. Gladue Caseworker Review Year 3. 12. 45 Aboriginal Legal Services of Toronto. Evaluatin of the Aboriginal Legal Services of Toronto Gladue Caseworker Program Year Two. 14. 46 Ibid. 26-27. 47 Ibid. 27 48 Ibid. 26 49 King, Leslie. (2012). Chapter 11: Gladue Reports: Reframing Lives. Well-Being in the Urban Aboriginal Community. Thompson Educational Publishing,Inc. Toronto, Ontario. 230. 14

While ALST s services have raised awareness of Gladue across the province and country, there are still significant gaps in Gladue services and associated justice programming outside of Southern Ontario that the Friendship Centres are uniquely positioned to identify and address as best suits their local communities. The grassroots push to establish a Gladue Court in London, Ontario is a model example of community-driven efforts to uphold the principles of the Gladue decision. Established in January 2012, the London Gladue Court is supported by a judiciary that works closely with community partners including N Amerind Friendship Centre s Gladue Report Writer. N Amerind s report writer adheres to interview processes with clients that identify key historical and background factors that may have influenced clients actions and circumstances while also emphasizing clients future goals and their commitment to wellness. By reducing excessive biographical information on the client and focusing the majority of the report on constructive sentencing options that emphasize healing, the Gladue report writer has directly contributed to the increase in conditional sentencing decisions for Aboriginal accused. Expressing concern with the increasing demand and lengthy wait times for the average Gladue report, the judge at the London Gladue Court recently suggested that N Amerind s Gladue Report Writer adopt a more streamlined process for sharing Gladue reports by presenting them orally before the court. 50 These expedited reports represent a unique process by which a community member is able to stand up in solidarity with the accused and the larger Aboriginal community to identify background factors contributing to a client s circumstances while suggesting a detailed healing plan for the individual. Gladue reports crafted by N Amerind s Report Writer focus on rehabilitation and community reintegration and are delivered to the court without review by legal counsel in an effort to uphold the autonomy of the OFIFC and its community-centred mandate. The experience of N Amerind s Gladue Report Writer has showcased an expedient way of delivering Gladue reports that respects the rights of the accused, represents the interests of the community, and promotes the efficiency of the busy criminal court. A number of local partnerships and access to diversion programs have created a positive way forward for the recently established Gladue Court in London. In stark contrast, the Community Justice Program worker in Kenora has been approached by the local judiciary to try to fill the void of needed services to support Gladue in the region. 51 Underfunding of community programming and a lack of rehabilitative resources mean that the viability of Gladue principles being upheld is dismal in communities like Kenora. Responding to the recent reaffirmation of Gladue principles by the Supreme Court of Canada, 52 judges have become outraged at the lack of Gladue services available to them. When an Ontario judge recently sought a Gladue report, the National Post reported that she was told the service was not available in Windsor. 53 In response, she noted that the [c]ompliance with the law should not depend on what jurisdiction the case is being heard in. 54 A consistent, efficient approach to Gladue is required across Ontario to ensure that Aboriginal accused s rights are upheld in all criminal cases. 50 Personal correspondence with OFIFC Gladue Writer. January 18, 2012. 51 Personal correspondence with CJP Worker, Kenora. January 2012. 52 R. v. Ipeelee [2012] S.C.C. 13. 53 Humphreys, Adrian. (May 2012). Aboriginal sentences reduced over shameful lack of background reports. National Post. Retrieved from: http://www.nationalpost.com/m/wp/news/blog.html?b=news.nationalpost.com/2012/05/17/aboriginalsentences-reduced-over-shameful-lack-of-background-reports 54 Ibid. 15

ABSENCE OF ALTERNATIVES TO CUSTODY The Toronto and GTA Gladue Courts have become the models for the delivery of Gladue services in urban settings in Canada. The reason that the Gladue Courts in Toronto can function so well is due to their proximity to services that factor into an offender s conditional sentencing plan. Similarly, the OFIFC s Gladue Writer in London is also uniquely positioned to offer a number of alternative services to clients and has the added benefit of strong relationships with nearby First Nations and non-profit organizations. 55 R. v. Gladue demands that judges take into account the backgrounds of Aboriginal offenders and attempt to limit the use of incarceration in every instance where and Aboriginal person is in conflict with the justice system. Unfortunately in many regions the only possible sanctions available for Aboriginal accused are custodial sentences due to a severe lack of appropriate regional services. In Kenora, where the majority of accused coming before the courts are Aboriginal, counsel and judiciary are well-aware of the principles of Gladue, but lack the programming and resources to create meaningful treatment plans or propose alternatives to incarceration. 56 The situation in Kenora is disproportionately affecting young Aboriginal men and causing an increasing number of offenders to build lengthy criminal records related to minor offences like breach of probation, minor domestic offences, and minor drug possession charges. 57 These are offences that could be more effectively addressed through alternatives to incarceration, if the appropriate resources were at the court s disposal. In McDonald s study of barriers to the practical application of Gladue principles, similar challenges in access to alternatives to custody were found in Manitoba: There has been a dramatic shift in government funding away from these types of programs. Those programs that do manage to survive have a staggering number of people on the waiting lists. It is very, very difficult to get people into alternative programs. That is the problem, it is not just a question of recommending a program, it s getting in. 58 Furthermore, funding for restorative methods of justice has been limited, short-term, and often under the guise of pilot projects. The Aboriginal Justice Strategy of Ontario has promoted community justice programs in only 23 communities across the province. 59 Of this total, a mere five Friendship Centres have been funded to offer the OFIFC s Community Justice Program. The Community Justice Program is instrumental in changing attitudes about justice in communities as it uses concepts of healing and restorative approaches to provide supports to offenders, victims, and their families. 60 There remains a serious need for investment in the implementation of restorative justice in proportion to the needs of Aboriginal communities. For offenders who are sentenced to custody, appropriate and effective programming for Aboriginal inmates remains a serious gap of the Correctional Service of Canada. Aboriginal offenders serve a larger proportion of their sentences behind bars and in higher security classifications. They also experience higher re-incarceration rates while on conditional 55 Personal correspondence with OFIFC Gladue Writer. January 18, 2012. 56 Personal correspondence with OFIFC CJP Worker, Kenora. January 2012. 57 Ibid. 58 McDonald, Rana. (2008). The Discord Between Policy and Practice: Defence Lawyers use of Section 718.2 (e) and Gladue. University of Manitoba. 173. 59 Ministry of the Attorney General. Aboriginal Justice Strategy. Retrieved from: http://www.attorneygeneral.jus.gov.on.ca/english/aboriginal_justice_strategy/reduce_overrepresentation.asp 60 Ibid. 16

releases. 61 In a 2008 report of the Office of the Correctional Investigator of Canada it was acknowledged that programs for Aboriginal inmates are often localized and not rolled out on a consistent national basis and have therefore had limited impact on narrowing the gap in correctional outcomes between Aboriginal and other offenders. 62 Alarmingly high recidivism statistics for Aboriginal offenders illustrate the current gap. An absence of supports and release planning for Aboriginal inmates while in custody combined with a severe lack of social supports in offenders communities can almost guarantee the widening, not narrowing of this gap: resources and services, such as employment, education, and counseling, are also required to meet community needs and facilitate the reintegration process. Most offenders, however, have few options about where they go upon release. Many return to the same criminogenic conditions. 63 LACK OF PREVENTATIVE PROGRAMMING The ruling in R. v. Gladue represents the Supreme Court of Canada s efforts to remediate the over-incarceration of Aboriginal people, but also recognizes that this crisis is not solely the fault of the courts. Roberts and Melchers refer to this observation in their exploration of the impact of Gladue: The solution to the high numbers of Aboriginal offenders entering provincial correctional institutions must lie earlier in the criminal justice process, or possibly outside the justice system altogether. 64 The overrepresentation of Aboriginal people at every level of the justice system is ultimately a reflection of the profound failings of the federal and provincial/territorial governments in providing basic services that are on par with standards of health, education, and safety in non- Aboriginal communities. With the onset of austerity measures driven by an unfavourable economic climate, there is now the threat of a further diminished social safety net for younger generations of Aboriginal young people that may contribute to their criminal involvement. Often by the time Aboriginal people become involved with the justice system there have been a number of social issues that have contributed to this fate. As observed by University of Saskatchewan criminal law professor, Thomas Quigley, socioeconomic factors, such as employment status and level of education, though deemed neutral by the legal system, actually conceal an extremely strong bias in the sentencing process because the unemployed, transients... [and] the poorly educated are all better candidates for imprisonment. 65 The legacy of colonialism persists and affects every quality of living standard of Aboriginal people today including health, housing, education and economic achievement. Justice LaForme noted that for Aboriginal people in cities the challenges increase: In urban areas, these issues are exacerbated by isolation, loneliness, racism, transience and the loss of family, community 61 Mann, Michelle. (2010). Good Intentions, Disappointing Results: A Progress Report on Federal Aboriginal Corrections. Office of the Correctional Investigator. Retrieved from: http://www.oci-bec.gc.ca/rpt/oth-aut/othaut20091113-eng.aspx#toc2 62 Ibid. 63 LaPrairie, Carol. (1996). Examining Aboriginal Corrections in Canada. Public Safety Canada. Retrieved from: http://www.publicsafety.gc.ca/res/cor/apc/apc-14-eng.aspx 64 Roberts, J. Melchers, R. (2003). Incarceration of Aboriginal Offenders 1978 2001. Canadian Journal of Criminology and Criminal Justice. 236-237. 65 Vasey, Adam. (2003). Rethinking the Sentencing of Aboriginal Offenders: The Social Value of s.718.2(e). Windsor Review of Legal and Sociological Issues. 73. 89. 17

and cultural support systems. 66 Healthy outcomes will only be achieved once the cultural regeneration and basic needs of future generations of young Aboriginal people are on par with those of non-aboriginal communities. Serious, long-term investments in preventative programming that consider every life stage of the members of a community are needed. Aboriginal people are the youngest, fastest growing segment of the Canadian population and have unique needs that must be considered in order to break cycles of poverty and social ills that have influenced outcomes for generations. Friendship Centres have been delivering important preventative programming within urban Aboriginal communities for decades. The model of community-based programming, support services, and cultural awareness contribute to the Friendship Centres unique position as critical service providers for urban Aboriginal people across Ontario. While the majority of Aboriginal people in Ontario are now living in urban centres, funding to support services for urban Aboriginal communities is not meeting the needs of these growing communities. Strategically located in cities and towns across the province, Friendship Centres are uniquely positioned to serve the needs of growing urban Aboriginal communities. Serving as important community hubs, Friendship Centres are able to deliver a number of preventative programs that bring together children and parents with the wider community to provide cohesive and wholistic services that contribute to the healthy development of young people through culturally sensitive methods. Unfortunately, due to funding constraints, not all Friendship Centres are able to deliver the full range of OFIFC programmes. There is an express need to support children and youth programmes in Friendship Centres and to invest in the expertise of Friendship Centres so that they can deliver the full range of OFIFC programmes in all 29 Friendship Centre communities across Ontario so as to ultimately reduce the need for criminal justice programming for future generations. CURRENT POLITICAL CLIMATE The current political climate is a major barrier in advocating for a recommitment to Gladue and a reduction in the use of incarceration. The prevailing tough-on-crime agenda that favours the use of punitive force in dealing with crime is diametrically opposed to the tenets of Gladue. This ideologically-driven reorientation of the justice system is being marketed as the only way to ensure greater public safety and increase offender accountability, despite statistics that illustrate an overall reduced crime rate. Legislative changes to the criminal justice system are being passed at the same time as larger prisons are being constructed. Most notably, Bill C-25,Truth in Sentencing Act, was recently passed which amended the Criminal Code to limit the credit a judge can allow at the time of sentencing for any time spent in pre-sentence custody, effectively increasing prison stays for offenders. 67 With the significant increase in remand populations where Aboriginal adults account for 18% and Aboriginal youth account for 24% of remanded youth, 68 the removal of 2-for-1 sentencing will disproportionately target Aboriginal offenders. 66 Laforme, Harry. (2005). The Justice System in Canada: Does it Work for Aboriginal People? Indigenous Law Journal. 4. 17. 67 Legislative Summary for Bill C-25: Truth in Sentencing Act http://www.parl.gc.ca/about/parliament/legislativesummaries/bills_ls.asp?language=e&ls=c25&mode=1&parl=4 0&Ses=2&source=library_prb 68 Porter, Lindsay and Donna Calverley. (2011). Trends in the use of remand in Canada. Statistics Canada. Retrieved from: http://www.statcan.gc.ca/pub/85-002-x/2011001/article/11440-eng.htm 18