Law Times

Page 8 April 29, 2013 Law Times • Focus On Aboriginal Law Incarceration rates Overrepresentation continues despite Gladue principles BY SIOBHAN McCLELLAND For Law Times D espite years of discussion on the issue, there has been little progress on the overrepresentation of aboriginal offenders in the criminal justice system, according to a recent report and court rulings. In a report on aboriginals and the justice system, the Office of the Correctional Investigator Canada found the issue of overrepresentation of aboriginals has actually worsened. And at an Ontario Bar Association event on April 2, moderator Amy Shoemaker noted the report, along with former Supreme Court justice Frank Iacobucci's recent look at the underrepresentation of aboriginals on juries, suggest the landmark decision in R. v. Gladue hasn't had the impact many people thought it would. For many aboriginals charged with crimes, incarceration is often the norm rather than the exception. Government statistics from 1988 reveal that although aboriginals made up only two per cent of Canada's population, they accounted for 10 per cent of those in federal prisons. In some areas, such as the Prairie provinces, aboriginals made up five per cent of the population yet accounted for 32 per cent of prison inmates. There have been steps taken to try to address the problem. Section 718.2(e) of the Criminal Code requires sentencing judges to consider "all available sanctions other than imprisonment that are reasonable in the circumstances" with "particular attention to the circumstances of aboriginal offenders." Specifically, sentencing judges have to apply the Gladue principles in cases involving aboriginal offenders. In Gladue, the Supreme Court of Canada declared judges have to pay particular attention to the circumstances of aboriginal offenders when considering what sentence to impose, including "the unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts." Judges also must consider "the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection." The decision led to the establishment of so-called Gladue courts in some areas of Ontario to address the issues unique to aboriginal offenders in sentencing as well as at bail hearings. While the Gladue principles have helped some aboriginal offenders over the years, the Supreme Court noted last year in R. v. Ipeelee that the overrepresentation of aboriginal people in prisons hasn't declined since Gladue. In that decision, the court said: "Whereas aboriginal persons made up 12 per cent of all federal inmates in 1999 when Gladue was decided, they accounted for 17 per cent of federal admissions in 2005." Applying the Gladue principles isn't simple. In Toronto, the Gladue courts run regularly at Old City Hall. But in more rural areas, there are no dedicated Gladue courts. Although the Gladue principles apply whenever an 'The realities of aboriginal people are often simply things that most lawyers and judges are not aware of,' says Jonathan Rudin. aboriginal person is up for sentencing, judges in non-Gladue courts don't always have the information they need. Jonathan Rudin, program director at Aboriginal Legal Services of Toronto, says defence lawyers need to help the courts by explaining some of the person's circumstances and "what might be put in place to address some of the issues so that the person gets a non-custodial sentence." It can also be difficult to obtain a Gladue report in rural areas. While Toronto has several caseworkers who write them, other areas may have limited or no access to Gladue reports. Instead, defence counsel often rely on probation officers' presentence reports that may contain a Gladue component. Neil McCartney, a criminal defence lawyer in Thunder Bay, Ont., says there's one Gladue report writer in the area. While he says most probation officers do a good job when writing presentence reports, he notes Gladue report writers bring a heightened level of sensitivity to the process. As well, he suggests some aboriginal offenders are more comfortable with Gladue report writers as they may see them as a neutral party or someone from their community as opposed to someone who's part of the system who they may associate with the police. Rudin also finds Gladue reports to be helpful. "We find that when judges have a Gladue report and they have more information about the offender that their sentences tend to lean to less custody, if not no custody, when absent that information, there probably would have been a custodial sentence." However, Gladue reports that show a bias or advocate for the defendant will have little, if any, weight with courts. In her 2013 decision in R. v. Florence, B.C. Supreme Court Justice Jeanne Watchuk found the Gladue report writer "engaged in an unacceptable level of advocacy in the report." She went on to note that a Gladue report must be objective and "present accurate and comprehensive information through a neutral lens." Even with information on the offender's background and circumstances before the courts, Rudin says some people assume the Gladue principles apply only to people who went to residential schools or grew up on reserves with many not understanding the notion of intergenerational trauma. According to McCartney, intergenerational trauma affects aboriginals whose relatives spent their youth in residential schools and didn't have family lives. When they left the residential schools and returned to their communities, they were estranged from their families. McCartney notes many people had no capacity to raise a child when they became parents themselves and says their inability to do so manifested in the next generation of children who, when they grew up, had all sorts of problems. Rudin also says people often don't understand that an aboriginal person who was adopted faces a number of challenges even though they didn't grow up in the aboriginal community. "Statistics show that aboriginal people are significantly overrepresented in the ranks of child welfare and that adoptions of aboriginal children by non-aboriginal parents break down at a higher rate than other adoptions. The realities of aboriginal people are often simply things that most lawyers and judges are not aware of." LT Get fast and easy access to l t y ble to you s and itt's availa a day. 24 hours Canada's legal professionals! Canada's most comprehensive online directory of legal professionals gives you a direct route to the information you need. departments location and area of practice Visit www.CanadianLawList.com and find out how we're serving you better than ever. compiled by top Canadian legal researchers Untitled-1 1 www.lawtimesnews.com 13-01-03 9:02 AM

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