Indigenousmatters CARRIE ROBINSON
Gladue Principles and Indigenous Identity Mitigating factors and criminal sentences
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ndigenous youth are overrepresented in the Canadian prison system. A link between systemic discrimination and incarceration is often made within Gladue Reports that may supplement an Aboriginal person’s defence in the criminal legal system. Indigenous youth aged 20 to 34 without a high school diploma or employment, in Alberta for example, are 3.3 to 5.1 times more likely than their non-Indigenous peers to be incarcerated.1 “Aboriginal youth accounted for 46% of admissions to correctional services in the 10 reporting jurisdictions in 2016-2017, while representing 8% of the general youth population in those same jurisdictions… (Statistics Canada, 2018a).”2 In R v. Gladue in 1995 the Supreme Court of Canada sentenced Jamie Gladue to three years imprisonment for second-degree murder. Jamie’s young, female, Cree identity was not considered by her sentencing judge. Jamie appealed the court’s decision in 1999 and won. The court overturned the trial decision because Jamie’s Aboriginal status was discounted.3 The Criminal Code subsection 718.2(e) requires courts sentencing Aboriginal offenders to take into consideration, “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community, with particular attention to the circumstances of Aboriginal offenders.”4 Providing a Gladue Report helps decisionmakers see the larger life story of the Aboriginal offender.5 Gladue Factors that judges will consider include: Intergenerational impacts 14 BARTALK / DECEMBER 2021
of colonialism and displacement, Racism and systemic discrimination stemming from the Indian Act, Indian Residential School attendance, “Sixties Scoop” of Indigenous children being adopted without consent, physical/ sexual/institutional abuse, loss of parenting skills and familial composition, normalization of violence and neglect, substance abuse/addiction, mental health, over-representation of Indigenous peoples in the child welfare and criminal justice systems, fetal alcohol spectrum disorders, lack of opportunity or isolation of communities, high rates of unemployment and poverty, low levels of educational attainment, loneliness, abandonment and dislocation from culture, community, and family, etc.6 Consideration of these factors may prevent the perpetuating of historical harms committed by the government against Aboriginal peoples through sentencing. A person’s Aboriginal identity matters. Rhaea Bailey, the Manager of Indigenous Services at Legal Aid BC stated that, “Gladue writers are an essential conduit through which the stories of Indigenous people are shared with the criminal justice system. These stories are what ground the application of Gladue principles so that judges understand the impact of colonialism and intergenerational trauma on the individual before the court as well as their strength and resilience. The BC First Nations Justice Council
is taking some important steps to advance and expand the application of Gladue principles in BC as well as to increase the accessibility of Gladue reports through its justice strategy.” The BC First Nations Justice Council (“BCFNJC”) is normalizing the role of Gladue report writers. In BC, there are only three writer positions at three Indigenous centres serving twenty communities. According to Mitch Walker, Director of Gladue Services at BCFNJC, there is a need to follow up on the aftercare healing plans written within the Gladue Reports as they are “part of a broader effort towards reconciliation” and are “focusing on individual client, nation, story and how all those entities have been impacted by colonization.” Statistics Canada. The incarceration of Aboriginal people in adult correctional services, online: <150.statcan.gc.ca/n1/ pub/85-002-x/2009003/article/10903eng.htm#a10> 2 Government of Canada, Overrepresentation of Indigenous People in the Canadian Criminal Justice System: Causes and Responses, online: <justice. gc.ca/eng/rp-pr/jr/oip-cjs/p3.html> 3 R. v. Gladue, [1999] 1 SCR 688. [Gladue] 4 Criminal Code, RSC 1985, c C-46 at s. 718.2(e). [Criminal Code] 5 Legal Services Society, Gladue Report Guide (British Columbia: March 2018) at 2. 6 BC First Nations Justice Council, Gladue Report for Randall Charlie – Sentencing Hearing (November 8, 2019). [Sample Gladue Report prepared for the purpose of sentencing pursuant to section 718.2(e) of the Criminal Code & Gladue]. 1
Carrie Robinson is an Anishinaabe lawyer. She currently works as a Senior Policy Advisor at the Assembly of First Nations.
