Gladue principles are failing in courts; how will they work in correctional system if ‘enshrined’ in law?


The number of Indigenous people being incarcerated in this country keeps rising.

That’s a phrase heard year after year.

Now Indigenous people represent 29 per cent of offenders in the correctional system, a jump of two per cent over a year ago.

Female offenders have kept pace, jumping from just under 38 per cent to 40.

“We’re talking about a system that is, frankly, profiting off of incarcerating Indigenous people. You know, it’s rife in all steps of the way, systemic racism,” said NDP MP Nikki Ashton on Nation to Nation Thursday. “And we need to counter this. Like these numbers aren’t acceptable.”

One way the Trudeau government is proposing to fight the growing trend is to “enshrine” Gladue principles to the correctional system in the hopes of lowering the number of Indigenous people in custody.

They want to do so through proposed changes to the Corrections and Conditional Release Act, or Bill C-83.

“But now it will be actually enshrined in law that Indigenous histories and backgrounds and characteristics need to be take into account in the custodial, transfer and treatment decisions made by the Correctional Service of Canada,” Public Safety Minister Ralph Goodale this week at the Public Safety and National Security committee.

Those same principles are supposed to be applied before Indigenous people ever end up behind bars, also to curb incarcerations rates.

But numbers have continued to rise since the Supreme Court of Canada first ordered lower courts to apply the principles in 1999 (Gladue) and again in 2012 (Ipeelee).

The Supreme Court said courts needed to take into account the impacts of residential schools and the generational impacts they continue to have.

In most jurisdictions they are applied in court through what’s known as Gladue reports that detail an Indigenous person’s history and provide alternatives to jail, such as treatment programs.

“I refer to them as sacred stories,” said Mark Marsolais-Nahwegahbow, a Gladue report writer, on Nation to Nation.

“When you look at reports themselves it’s a report from when they were really young … generational and systemic problems, right through to where they are today and how they became involved in the justice system.”

Marsolais-Nahwegahbow said the Gladue system is failing, particuarly as incarceration rates rise, and if the federal government really wanted to lower incarceration rates it would properly fund the Gladue report system on the outside.

That means long before someone is facing a jail sentence, as the reports are almost always applied when someone has already been found guilty.

And in some cases an Indigenous person could have gone years, with multiple convictions, before a report is ever written.

That’s the case in Ontario, which is seen as a leader in Gladue, as Legal Aid Ontario provides funding to Aboriginal Legal Services to do most of the reports in the province. That legal firm provides reports to people facing a jail term of at least 90 days.

“Let’s be truthful. These (Gladue) reports need to be presented in an individual’s life right from when they are young and involved, even as a young offender or they need to be involved right in their first entry to the justice system,” said Marsolais-Nahwegahbow.

“Right now the way legal aid (in Ontario) has it they have loss of liberty 90 days before they are even entitled to having a report. That’s not right.”

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