Law Times

PAGE 12 FOCUS June 1, 2009 • Law Times Ten years later Gladue produces little change BY GLENN KAUTH Law Times I t's been 10 years since a landmark Supreme Court judgment directed judges to consider aboriginals' disad- vantages into account during sentencing, but so far its lament over high incarceration rates has produced little change. "[From] the macro picture, if you look at incarceration rates, it doesn't look like much has been done. In fact, it looks worse than it was 10 years ago," says Jonathan Rudin, a resentation of aboriginal people in the country's jails and noted that in some cases they should receive a lesser sentence for the same crime than non-natives. Statistics, however, show that aboriginals continue to go to jail in large numbers and in many cases they make up a larger share of the prison population than they did in 1999. As Rudin points out, be- tween 2001 and 2007, the num- bers of adults in jail decreased by nine per cent. But for aboriginals, those numbers went up by four per cent. "Th ere is a real reason to think that the promise of admissions in 2001-2002 to 18 per cent four years later. Melchers points out, though, that the fed- eral prison population is much smaller than the provincial one, meaning aboriginal off enders still go to jail in disproportion- ate numbers given that less than four per cent of Canadians iden- tify themselves as native. Why the issue continues to persist is a matter of debate. Ru- din, who has studied the prob- lem, notes his work shows that in many cases aboriginal youth were going to jail at twice the rate as non-aboriginals for the same At the heart of Gladue, what judges need is information . . . I think that in many places, it's business as usual. That's not going to lead to any changes. program director at Aboriginal Legal Services of Toronto. Rudin's comments come as the 10th anniversary of the Su- preme Court judgment in R. v. Gladue nears. In that case, a young woman challenged her three-year sentence for stab- bing her husband to death, and while the top court upheld the ruling, it paid particular heed to 1996 Criminal Code amendments directing judges to consider alternatives to jail when dealing with aboriginal off enders. It also highlighted the need to tackle the over-rep- Gladue is not being met," he says. Ron Melchers, a University of Ottawa law professor who has compiled statistics on incar- ceration rates, paints an equally stark picture of aboriginals in the justice system. His numbers, obtained from Statistics Canada, show aboriginals made up 24 per cent of admissions to provincial and territorial custody in 2006- 2007, up from 21 per cent four years earlier and from 15 per cent in 1997-1998 before the Gladue ruling came out. Federally, how- ever, the numbers did decrease slightly from 19 per cent of Credit not automatic Continued from page 9 Trudell, though, insists such examples aren't an accurate refl ec- tion of how the courts deal with people. "I believe that it is anec- dotal because if you visit some of the hellholes that are detention centres, it is ridiculous to suggest they're doing that." Trudell adds that judges already have the right to deny double credit in such cases. "It's not automatic. Th ey don't grant it with- out looking at the circumstances." Of course, cases like Lebar's show that even when the govern- ment does get tough, the answers still aren't necessarily straight- forward. "I don't think we have a serious engagement of the issue by the Court of Appeal," McCartney says. LT crimes. But rather than conclude that aboriginals are committing more serious off ences, he points out that for aboriginals, few charges get withdrawn in court. As a result, they tend to rack up long rap sheets when facing judg- es, a key fact in why judges will elect to send them to jail. Rudin adds that less access to defence lawyers or duty counsel — his re- search shows they tend to spend less time with aboriginals during the legal process — plays a role in that result since they are less likely to get adequate representation that can get charges dropped. "We see that a lot," he says. Melchers, meanwhile, believes other factors are at play. One, for example, is demographics. With aboriginal birth rates soaring over the years, a larger propor- tion of that group fi ts in with what Melchers calls the "off end- ing population bubble" of peo- ple between 18 and 31 years old. Also, legal and social changes have led more people to identify themselves as aboriginals, par- ticularly as Metis, which means the population — as well as the number of potential off enders — are growing quickly. Melchers admits to being uncomfortable with one aspect of his conclusions: that aborigi- nal people get charged with more violent off ences and consequent- ly are more likely to receive jail terms. "Th at is especially true of the territories. It's especially true of the northern areas of Western Canada," he says, noting, for example, that spousal violence rates in Nunavut are four times that of Canada as a whole. "I don't know how to explain that," he adds. Part of the issue likely has to do with social factors, including the fact that aboriginals are less likely to have a permanent home or have a regular job. Melchers notes these issues come into play in court during sentencing or during bail hearings, especially as judges take factors like em- ployment status into account when deciding whether someone should go to jail or get bail. "It's not aboriginal identity. It's more the aboriginal experience that plays into this," he says. Rudin, though, is at least par- tially optimistic that Gladue is having some eff ect in places like Toronto and has the potential to make a diff erence elsewhere. In Toronto, for example, three so-called Gladue courts accept guilty pleas, hand out sentences, and deal with bail hearings for aboriginals accused of crimes. Th ey often base decisions on Gladue reports written by ALST staff outlining the life circum- stances of off enders that might be relevant to their criminal his- tory. A judge might, therefore, order treatment for an off ender who can document suff ering abuse as a child rather than giv- ing a jail sentence, Rudin notes. "At the heart of Gladue, what judges need is informa- tion," he says. "We fi nd that judges take the reports very seriously and judges come up with sentences that they wouldn't have otherwise," he adds. But, Rudin argues, the prob- lem is that courts aren't applying that approach in enough places. In Saskatchewan, for example, aboriginals make up a whop- ping 80 per cent of admissions to provincial jails, far in excess of their roughly 15 per cent of the population, according to num- bers Melchers obtained from the Canadian Centre for Justice Sta- tistics. In Ontario, meanwhile, the numbers are still high but to a lesser degree. Th ere, aboriginals represent about nine per cent of provincial inmates compared to their roughly two-per cent share of the population. "I think that in many places, it's business as usual. Th at's not going to lead to any changes," Rudin says. Defence lawyers, also play a big role. Part of the problem, Ru- din argues, is that counsel don't necessarily know how to make a strong case under Gladue, such as through a Gladue report, or don't have the resources to do so. But, he notes, a decision by Legal Aid Ontario to allocate addition- al funding for defending cases against aboriginals should help. As a result, Rudin says there have been small changes for the better since 1999. Shin Imai, an Osgoode Hall law professor, is similarly optimistic that Canada has made progress. In particu- lar, he says Gladue represented an important recognition of longstanding discrimination against aboriginals, a step he believes played a role in events such as last year's offi cial apol- ogy for mistreatment at residen- tial schools. "Th e Gladue case named it," says Imai, referring to lingering social grievances. Critics, of course, have raised concerns that Gladue could sim- ply amount to a get-out-of-jail- free card for certain people, a notion Imai dismisses. "I think it's a challenge and I think we need to get beyond just think- ing about the criminal justice system as nothing more than handing down a certain num- ber of years in jail," he says. "Of course, that's not what fi xes human beings." LT Looking for an easier way to attract attention? it's easy. www.lawtimesnews.com _sailing_half.indd 1 11/5/08 2:50:47 PM

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• Self-regulation At Stake
• Tizzy In Lotusland
• Focus On Criminal Law