Indigenous people make up approximately four per cent of the Canadian population, but more than 23 per cent of the federal inmate population. In Saskatchewan prisons, the ratio is 57 per cent of inmates compared to 10 per cent of the adult population of the province.
The justice system has long recognized the historical factors for this overrepresentation. According to the federal Office of the Correctional Investigator (OCI) the “high rate of incarceration for Aboriginal peoples has been linked to systemic discrimination and attitudes based on racial or cultural prejudice, as well as economic and social disadvantage, substance abuse and intergenerational loss, violence and trauma.”
In fact, that recognition was codified in 1996 when Section 718 of the Criminal Code, which deals with sentencing principles, was amended to instruct judges to use restraint in imposing imprisonment and consider all possible alternatives, including restorative justice practices “with particular attention to the circumstances of Aboriginal offenders,” (718.2 (e))
The theory: R. v. Gladue and R. v. Ipeelee
It was not long before the new principle was put to the test. In 1995, Jamie Tanis Gladue, a 19-year-old Cree woman stabbed her common-law husband to death in Nanaimo, B.C. She was charged with second-degree murder and pleaded guilty to the lesser included charge of manslaughter. The trial judge sentenced Gladue to three years in prison.
Gladue appealed to the Supreme Court of Canada (SCC) claiming due consideration was not given to 718.2(e). The lower court judge had disqualified her on the basis she was living off-reserve. On April 23, 1999, the Supreme Court upheld the original sentence saying 718.2(e) does not negate the rest of the sentencing principles in the Code, but said the sentencing judge was mistaken in his reasoning.
And the Court did uphold the principle giving sentencing judges more breadth and clarity for applying it. The circumstances the justices identified have become known as Gladue Factors and include: “effects of the residential school system; experience in the child welfare or adoption system; effects of the dislocation and dispossession of Aboriginal peoples; family or community history of suicide, substance abuse and/or victimization; loss of, or struggle with, cultural/spiritual identity; level or lack of formal education; poverty and poor living conditions; and exposure to/membership in Aboriginal street gangs.”
In 2012, a lower court was again challenged on its interpretation of 718.2(e) in the Supreme Court. Manasie Ipeelee appealed a three-year sentence for breaching a Long-Term Supervision Order (LTSO) by consuming alcohol. Ipeelee had an extensive criminal history including violence and had been deemed a long-term offender. The SCC reaffirmed Gladue and reduced Ipeelee’s sentence to one year. Writing for the majority, Justice Louis LeBel noted two errors some judges had been making in applying Gladue. First, tying the factors to the commission of the current offence was erroneous and not the intention of Gladue. It said the interconnections were “too complex” to draw a direct causal link. Secondly, it said in many cases the principle was not being applied for serious or violent offences, when the Gladue decision and the Criminal Code are clear it is to be applied in “every case involving an Aboriginal offender.”
“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,” LeBel wrote.
Putting Gladue and Ipeelee into practice locally
In 2014, Cunliffe Barnett, a retired British Columbia provincial court judge, criticized Saskatchewan for not paying enough attention to Gladue. Some provinces, such as B.C., Alberta and Ontario, routinely generate specific Gladue reports, but it is rare in Saskatchewan. Shane Wagner, a local lawyer, who splits his time between defence and Crown files has seen it from both sides. He said just because judges don’t often see specific Gladue reports, they are not shirking their obligation to take the principle into account.
“Under our pre-sentence reports, there is a heading where that gets canvassed in nearly every presentence report,” Wagner said. “Recently, I have seen a turn where judges are doing specific requests for a Gladue or an Ipeelee report to be more in-depth. It’s obviously something our judges are very cognizant of and sensitive toward. It’s right in our legislation, the needs of Aboriginal people and socioeconomics need to be taken into account at the time of sentencing and there is a duty on the lawyers, even without in-depth reports, to put this forward to the Court to make sure the judges have a better understanding of it, and it is something that the Court is very receptive to.”
Terri-Ann Lepowick runs the Justice Unit for the Yorkton Tribal Council, which manages Alternative Measures in Yorkton. She explained the foundation of traditional justice is essentially an attempt at making things right again. In the context of the formal justice system, offenders who qualify are diverted from the court system.
Once referred, a case typically takes the form of a mediation, Lepowick explained. A caseworker consults with the offender, victim(s) and other potential community stakeholders. She attempts to ascertain the underlying factors that led to the crime and what the stakeholders are seeking to get out of the process. Victims do not have to appear in person, but their needs are represented. The offender is required to come up with a plan to make things right. The agreement generated from the process can take many different forms. It is not always easy, Lepowick said, to get victims involved, but when they are, it benefits both the offender and victim.
“When people think of justice, they often think the offender will go to court and then they will go to jail, and the victim will be able to feel that they’ve been justified, in some way,” she said. “But a lot of the time, from that court process, they’re not getting a voice and they’re still left with a lot of unanswered questions. With this process, it puts it back into the victim’s hands so when they sit in a mediation and you have a mediator there, who is neutral and providing a safe environment, the victim can say ‘this is how you harmed me; this is how I’m feeling.’ They might feel scared or angry and sometimes they just want to know why. In the court process, they don’t get answers.”
Having to be accountable in this way, is part of the benefit to the offender and, Lepowick said, contrary to popular belief, it is not just a slap on the wrist.
“They have to take responsibilty for what they’ve done,” she said. “And when they’re talking to the victim, it’s not an easy thing to sit in that room. It takes a lot of courage, sometimes more than the court process, I think. The mediator basically helps two people have a very difficult conversation, guides them through the process, then connects them to any resources that may come out of it.”
That may including providing restitution, doing community service work, attending education and/or treatment programs etc.
Getting ahead of the game
Going hand in hand with restorative justice practices are intervention and prevention. In 2012, Yorkton became the second city in Saskatchewan after Prince Albert to implement a provincial program called Building Partnerships to Reduce Crime (BPRC), frequently referred to as Hub.
The local group comprises a variety of agencies and community groups including the RCMP, the school divisions, the ministries of social services and justice, Sunrise Health Region, the Yorkton Tribal Council, SIGN (Society for the Involvement of Good Neighbours) and the Yorkton Housing Authority. At the heart of the BPRC philosophy is recognition the traditional approach to crime reduction—suppression through law enforcement, prosecution and incarceration—must work in concert with early intervention and prevention.
The initiative targets at-risk youth to get them the services they need, such as substance abuse treatment, education, employment and/or housing, before they wind up in the justice system.
Evan Wasylyniuk, who has represented Christ the Teacher Catholic Schools since the inception almost four years ago, said the program is now mature and functions very smoothly in Yorkton. It is difficult to quantify success, however.
“I’m not sure if we have the quantitative data to support how we’re doing,” he said. “What we do know is the individuals who do go through the program and connect with services, usually they’re not using acute services as often.”
Staff Sgt. Greg Nichol, commander of the Yorkton municipal RCMP detachment, also feels positive.
“It’s hard from a policing standpoint to say if it’s working as far as our crime stats go, but I think it’s a good initiative and I know we are having some success stories and every one of those indicate it’s working.”
Back to the future
Despite Gladue and Ipeelee, Indigenous people are still overrepresented and the numbers continue to rise. Part of the explanation has to do with the fact underlying causes are still not being addressed. In 2014, 64 per cent of food bank users were Indigenous people and one in two status First Nations children lived in poverty. Non-Aboriginal people who face similar socioeconomic challenges are also overrepresented in the correctional system.
The previous federal government endured a lot of criticism for its more penal approach to justice and indifference to First Nations issues. For example, Howard Sapers, the former Correctional Investigator called the Conservatives’ justice system reforms “ad hoc and ineffective.”
It appears the new government is committed to turning back the clock and forging ahead with an even more ambitious agenda for addressing, in particular, First Nations justice needs.
“You should conduct a review of the changes in our criminal justice system and sentencing reforms over the past decade with a mandate to assess the changes, ensure that we are increasing the safety of our communities, getting value for money, addressing gaps and ensuring that current provisions are aligned with the objectives of the criminal justice system,” Prime Minister Justin Trudeau wrote in his mandate letter to Jody Wilson-Raybould, minister of justice and attorney general. “Outcomes of this process should include increased use of restorative justice processes and other initiatives to reduce the rate of incarceration amongst Indigenous Canadians, and implementation of recommendations from the inquest into the death of Ashley Smith regarding the restriction of the use of solitary confinement and the treatment of those with mental illness.”
