Not just an Indigenous issue: The north of 60 perspective on Gladue

  • January 02, 2018
  • Melissa Atkinson

I live and work in the Yukon justice system, which is also within the traditional territory of the Ta’an and Kwanlin Dun First Nation lands here in Whitehorse.

I am a proud member and citizen of Tr'ondëk Hwëch'in First Nation, which is a self-governing nation. I am Han, Tlingit and Kaska. My mother’s people come from Dawson City and my father’s people are from Ross River. My family’s story spans the legacy of Residential School to Law School. The key to my resilience is education.

I do my legal work through the lens of my Indigenous identity. I am a senior lawyer with Yukon Legal Services Society. My entire legal career, 18 years, has been spent practising in the field of criminal law. I began my career as a federal Crown prosecutor and for the last seven years I have worked at Legal Aid.

I deal every day with sentencing principles and what are often referred to as “Gladue factors,” and the reality of the systemic over-incarceration of Yukon Indigenous people.

In 1996, amendments to the Criminal Code required judges to consider all available options other than incarceration when sentencing Indigenous offenders. The 1999 decision in R. v Gladue established the principle that judges must recognize how Indigenous offenders’ lives have been affected by decades of colonial oppression. In 2012, with the case of R. v Ipeelee, the court acknowledged that the criminal justice system has failed Indigenous people.

“If you’re a young Indigenous man in Saskatoon, you’re more likely to go to jail than finish high school,” Kyle Edwards wrote in an Oct. 18, 2017 MacLean’s article entitled: “Why Gladue has not lived up to its promise for Indigenous Justice.” The article notes that Indigenous people, who represent four per cent of the Canadian population, make up 24 per cent of the federal prison population overall, and 34 per cent of the female inmates in federal institutions.

Section 718.2(e) of the Criminal Code, R.S.C. 1985, c-C-46, requires a sentencing judge to consider and give tangible effect to an offender’s Aboriginal heritage when crafting a sentence, (R. v Joe, 2017 YKCA 13 (CanLII) at para. 78). A direct causal link between the systemic and background factors that affect Aboriginal people in Canada and the commission of the offence at issue need not be shown. Rather, systemic and background factors provide the context within which the judge must evaluate case-specific information and determine an appropriate sentence. On their own, they do not excuse criminal conduct or necessarily justify a different sentence (R. v Ipeelee, 2012 SCC 13 (CanLII) at para. 60). In all cases, what is required of the judge is a real and demonstrated consideration of the offender’s Aboriginal heritage (R. v Sunshine, 2014 BCCA 318 (CanLII) at para. 31).

There is the recent Yukon case dealing with this very issue, R. v Joe, 2017 YKCA 13 (CanLII)

"While not totally ignoring Gladue, I would rate it as infinitesimal in and of itself," Judge Luther wrote in the sentencing of Mr. Joe.

But the decision released from the Appeal Court is clear that sentencing judges must take a person's Aboriginal heritage into account when crafting a sentence.

"By effectively ignoring Mr. Joe's background, it is self-evident in my view that the sentencing judge committed an error in principle that impacted the judge's analysis leading to the sentence," Chief Justice Robert Baumann wrote in the appeal court decision.

Mr. Joe, 65, a Yukon Aboriginal man, was raised by his maternal grandparents until he was five and was then sent to a residential school. His parents frequently drank, and his mother froze to death, court documents show.

"Mr. Joe was sent to the Lower Post Residential school in northern B.C. The school had a reputation as one of the more repressive and brutal residential schools in Canada," Baumann wrote.

Baumann ordered the sentence to be reduced to 23 months and five days, which Joe had already served as his case went through the courts, meaning Joe has completed the incarceration portion of his sentence and is now on probation.

The Maclean’s article concluded with a quick cross-country snapshot:

In the Yukon, there is no Gladue report program, despite Indigenous people making up 64 per cent of the inmate population. There are no Gladue report programs in Nunavut, the Northwest Territories, Manitoba, Saskatchewan, New Brunswick, and Newfoundland and Labrador. ‘When something is at the Supreme Court level, it becomes a federal matter,’ says Anisa White, the chairperson and co-founder of the Gladue Writers Society of British Columbia. ‘And the federal government has consistently failed to fulfil what we would call the promise of Gladue.’

In Yukon in November there was a training opportunity offered locally regarding Gladue reports and perhaps the beginnings of a program.

From my perspective, the Gladue reports need to remain at a grassroots Indigenous community level. Canada needs to allocate financial and human resources beyond pilot projects. The government cannot continue to expect already over-burdened non-profit organizations to create these reports off the sides of their desks.

How can we move forward? Court orders are worthless if there are no legal remedies available to enforce them. What is to be done when there is a systemic failure to comply? If the court orders a Gladue report and there is no Gladue program?

Do you understand the Gladue factors? Read the case, take time to learn our Canadian history and acknowledge the dark portions of it that have directly affected Indigenous people. Therein lies the disconnect: Are Gladue factors: a box you tick? Is it a concept? Is it an ideal? This is not an Indigenous issue, this is not just a criminal law issue, this is a Canadian issue.

Melissa Atkinson is Senior Staff Lawyer with Tutshi Law Centre in Whitehorse