Principle aims to end persecution

Joe, an alcoholic with a history of 16 convictions for drunk driving, seemed unaffected by a series of jail sentences he served as a result. An aboriginal man in his 60s, Joe (not his real name) would be charged, convicted and quietly serve his time, and then resume his old habits as soon as he got out of jail.

Joe, an alcoholic with a history of 16 convictions for drunk driving, seemed unaffected by a series of jail sentences he served as a result.

An aboriginal man in his 60s, Joe (not his real name) would be charged, convicted and quietly serve his time, and then resume his old habits as soon as he got out of jail.

The sanctions placed upon him in court did not address his issues, nor did they protect society from the menace he would become when drinking and driving, says defence counsel Andrew Phypers, Joe’s lawyer for his 17th charge of drunk driving.

It wasn’t a matter of taking away his driver’s licence — he didn’t have one.

Looking to the heart of Joe’s apparent disregard for mainstream justice, Phypers pulled out a tool that was created in 1999 and is only now beginning to gain traction in Canadian courtrooms.

Phypers asked a provincial court judge to consider a Gladue pre-sentence report, which would address the factors behind his client’s disregard for mainstream law and create a sentence that would have both meaning and value for Joe and for the greater community.

The groundwork for creating the report was laid in 1999 by the Supreme Court findings from the Jamie Tanis Gladue murder trial.

In their investigations of Gladue’s sentence, the justices of the Supreme Court determined that, although she did not live on a reserve, Gladue was nonetheless profoundly affected by the unique circumstances of her life.

The impact of residential schools on her parents and grandparents loomed large, as did other factors that arose from those influences.

The Supreme Court ruled that the type of sentence that would be appropriate for a member of mainstream society would not be appropriate for Gladue.

The Gladue Principle, based on her case, was established in the Criminal Code of Canada to encourage sentencing that would be more effective in addressing the unique circumstances of people whose futures are mapped on the course of their past.

The Gladue pre-sentence report, in essence, analyzes the offenders’ past as a means of influencing their future.

The court workers responsible for Joe’s Gladue report found that, because he is a Cree speaker, he does not believe the Creator understands words spoken in English, says Phypers. Courtroom pronouncements made in English are therefore meaningless to him.

A provincial court judge adopted the recommendations of Joe’s Gladue report, placing him in the hands of elders in his own community. Having to answer to and attend ceremonies with his own leaders in his own language has made a world of difference to Joe, who got rid of his pickup truck altogether and is now making an effort to battle his alcohol addiction, says Phypers.

For Joe, being placed in the hands of his elders was actually a more onerous sentence than spending a few months in jail, he says.

“It’s not a get-out-of-jail free card,” Phypers says.

Joe’s relationship with the courts up until his 17th conviction is far too common, say Phypers and Ruby Fermaniuk, a Red Deer-based court worker for Native Counselling Services of Alberta.

Phypers describes a “monumental” over-representation of aboriginal people in Canada’s justice system, which was noted in the Supreme Court’s 2012 Ipeelee and Ladue decisions as being especially high in Alberta.

“To me, it’s a more complex issue than simply a sentencing problem and the justice system’s problem,” says Phypers.

“Aboriginals are more likely to stay in remand, they’re more likely to go to jail, they’re more likely to repeat, and they’re more likely to be persecuted — more likely to be caught.”

He uses the word persecution to describe the treatment of aboriginal people for even the most benign offences, on and off the reserves.

“They’re more likely to be before the courts on the same matters that others wouldn’t be. An assault would go unnoticed in some situations, but they’re charged and put in front of the court.

“(The Gladue decision) is basically the Supreme Court saying (that) throwing them in jail isn’t working — let’s figure out sentencing that can work.”

Fermaniuk says she would like to see more of her clients take advantage of the opportunity, but there is a lack of available workers who have the necessary skills and abilities.

In most cases, it’s almost a given that the report writers must be aboriginal as well, because of the deep trust they must develop with the offenders they are hired to help, she says.

Workers from Native Counselling Services are well equipped to write the reports, but the task is especially difficult for probation officers who come from outside of the aboriginal community, says Fermaniuk.

“It isn’t a judgmental thing,” she says.

“Our community does not trust and do you blame them?”

Native Counselling trains its workers to understand and spot the signs of past traumas, including the impact of residential schools on an offender’s family history.

“You’re trained in catching those multi layers of trauma. I think that makes a big differences. As soon as that person knows that you understand what they’re talking about, they’ll start disclosing more to you.

“They know we’re doing it because we really care, where a probation officer may be doing it because that’s part of a job, and that’s a big difference.”

Smudging, prayers and storytelling are big issues as workers prepare to interview offenders and pull out the details that will help the courts create an effective sentence for them — and that means many hours of time spent in preparing a report for the court, says Fermaniuk.

“I’ve worked here for 12 years. You didn’t hear mention of the term Gladue report, up until the last two years. Now, I’m hearing it all the time,” she says.

Much of the impetus for that change was the justices’ comments in the 2012 Ipeelee decision, which identified a number of areas where Gladue principles were being misapplied in court.

The Ipeelee decision did a great deal to clarify the role of Gladue principles for judges and lawyers, says Allan Lefever, Deputy Chief Judge of the provincial court of Alberta.

All the same, there has been a mixed bag of responses from Alberta’s judges so far, says Lefever.

“Our hope and expectation is that all of the judges will ask at the time of sentencing on a criminal matter: is there any application for a Gladue report? There are times when you can tell … that it’s likely that there are Gladue factors that may be at play. Many times, you can’t tell that, so we simply ask: is there an application for a Gladue report?”

Often, rather than having a report prepared, defence counsel will include Gladue factors in sentencing submissions, which may be accepted by the Crown prosecutor.

Lefever recalls only one instance where the Crown prosecutor did not accept Gladue factors as presented by defence counsel, forcing defence counsel to call evidence for sentencing.

When it came back to court, Lefever said the family did not want to revisit those factors, so the accused, in effect, waived his right to have a Gladue report prepared.

“The family members felt that recounting the evidence of those factors publicly, at that point, would be a form of re-victimization,” says Lefever.

He says the judges, the Court of Queen’s Bench justices and the Solicitor General’s office have been working together to try to streamline the process, recognizing that the use of mainstream probation officers could be viewed as yet another paternalistic approach to the issues they have been told they were to consider.

Lefever says Native Counselling has been asked to step in, recognizing that they have the skills and the connections to meet the goals stated by the Supreme Court and in the Criminal Code.

Phypers says he recognizes that the shortage of people qualified to write Gladue reports is a growing problem that must be addressed as more offenders become aware of their options.

Pointing to Rocky Mountain House, where Joe’s case was heard, Phypers says there was only one report underway in June 2012, when he first started working there. That number has now hit 19 and the sentences are starting to hit home, he said.

“The O’Chiese, the Sunchild, they’re a remote community. (Offenders) are going to care a lot more about who’s talking about them out there than in Rocky. When it becomes the norm to do a little sentence, they don’t suffer much. But if they’re forced to go to meaningful ceremonies, feel shameful in front of (their communities), then you’re getting to the bottom of it.”

The Gladue Principle

The Gladue Principle was crafted through a Supreme Court decision published in 1999, concerning a B.C. woman convicted of manslaughter after killing her boyfriend in a jealous rage.

Justices of the Supreme Court were asked for a ruling when Jamie Tanis Gladue was denied access to sentencing provisions normally available for aboriginals. The sentencing judge felt those provisions did not apply to Gladue because she did not live on a reserve.

The justices of the Supreme Court determined after reviewing Gladue’s sentence that different guidelines were needed for all First Nations people, regardless of where they live, because of the unique circumstances of their lives.

The high proportion of aboriginals in prisons and the excessive number of repeat offenders within their communities were among the issues addressed in the decision and clarified in a subsequent set of decisions.

The Supreme Court’s Ipeelee and Ladue decisions, released in March 2012, clarified the purpose of the Gladue Principle while giving a stark description of the role of sentencing in addressing the excessively high proportion of First Nations people languishing in jails and prisons.

In their written comments on the Ipeelee appeal, the justices noted that aboriginal people were “sadly overrepresented indeed” in the federal prison system:

“Government figures from 1988 indicated that aboriginal persons accounted for 10 per cent of federal prison inmates, while making up only two per cent of the national population. The figures were even more stark in the Prairie provinces, where aboriginal persons accounted for 32 per cent of prison inmates compared to five percent of the population. The situation was generally worse in provincial institutions.”

They went on to cite the authors of a 1991 report by the Royal Commission on Aboriginal Peoples, who decree that the Canadian criminal justice system has miserably failed the people of the country’s First Nations:

“The principal reason for this crushing failure is the fundamentally different world views of aboriginal and non-aboriginal people with respect to such elemental issues as the substantive content of justice and the process of achieving justice.”

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