Lewis Waring
Jun 27, 20215 min
Updated: Jul 10, 2021
Indigenous Over-Representation
As it currently stands, Canada’s indigenous peoples are grossly overrepresented in the Canadian prison population. For those behind federal bars, roughly 30% are indigenous while this population only makes up only around 5% of the general Canadian population. (1) This number changes quite drastically when we look at provinces like Manitoba or Saskatchewan, where the number can be as high as 75% as of 2018/2019. (2) This issue is nothing new, and approaches to remedy this issue can be found over the past few decades. One such reform came from Bill C-41 (1995), which amended section 718.2 of the Criminal Code to give indigenous offenders special consideration with regards to sentencing. (3) This amendment and the subsequent interpretation found in R v Gladue (“Gladue”) clearly did not have the impact on prison demographics as the drafters and the Justices of the Supreme Court of Canada (“the Court”) may have thought. (4) These actions alone are clearly not enough to solve this complex issue.
What Happened in Gladue?
Gladue was a hallmark case in the Court’s history, instituting a new approach to interpreting section 718.2(e) of the Criminal Code. (5) In Gladue, the accused, a Cree woman, pled guilty to manslaughter after having killed her partner. (6) At both the trial and appeal levels, courts held that section 718.2(e) was not applicable as the accused was not living on a reserve, and the details regarding the manslaughter did not require section 718.2(e) to be considered. (7) The Court found that the lower courts did make errors in their decisions. First, the Court found that section 718.2(e) was not limited to only aboriginal persons living on reserve; it applied to all aboriginal peoples wherever they may reside. (8) Under this section of the Criminal Code, judges must consider the unique background factors the aboriginal offender may have and the procedures and sanctions that may be appropriate for the offender because of their particular heritage or connection. (9) In Gladue, the time that the accused had served behind bars, six months, was deemed to be enough and a new trial for re-sentencing was not ordered, any more time would not be in the interest of the appellant or society. (10)
Gladue’s Legacy
The Court was fairly vague in how the Gladue interpretive approach was to be enacted in practice but in trying to meet these requirements most provinces and territories have embraced the concept of a “Gladue report”. (11) Gladue reports are documents drafted by actors like probation officers, providing insight into the offender’s history and a possible systemic background that has contributed to their criminal acts. (12) Such reports would be used to guide a judge in their decision when it comes to sentencing. Ideally, this consideration would help reduce the disproportionate number of aboriginal people in custody.
A Problem with Gladue
Indigenous persons currently represent 30% of those in federal custody, a proportion which has increased 13% in the past 20 years ago. (13) This is a clear indicator that what was done previously did not help solve the issue it initially sought to remedy. The reasons this has not yet worked are broad. Firstly, the procedures that surround the drafting and the subsequent submission of these reports vary widely across the country. (14) While the courts may have mandated the consideration of these factors, as they should have, they failed to provide more concrete guidance on how this process should look in reality. As a result of this, the way that Gladue reports are currently being prepared is highly dependent on provincial public funding. Therefore, it is more than probable that in some cases the necessary information is overlooked and not brought forward to a judge. (15) Different provinces or territories have access to different levels of funding and thus it could be an issue for a judge to order a Gladue report and require the province to use said funds. Outside of a Charter remedy, courts should not have the authority to require the production of reports from the government. (16) However, pre-sentence reports can be ordered under section 721 of the Criminal Code. (17) Pre-sentence reports, much like Gladue reports, provide a judge with external information to consider when deciding a sentence.
Considering Ipeelee
With this in mind, what we are seeing really could be considered the “empty promise” that the Court in R v Ipeelee (“Ipeelee”) argued against. (18) When addressing this criticism, the Court in Ipeelee argued that sentencing judges could reduce indigenous crime and incarceration rates, impose sentences that deter criminality and rehabilitate offenders, and ensure that systemic factors are not contributing to discrimination in sentencing. (19) Though having these factors in place for around 20 years does not bode well for its efficacy, Ipeelee represents a double-down on a system that has in the past and continues to fail to address the issue of indigenous over-incarceration. While the courts do mention that sentencing may not be the primary remedy for this issue, it could be argued that it would play a more minor role than one may think.
Final Thoughts
While there are clear issues in how Gladue reports are made and submitted, the reports themselves are not well suited to address the issue of indigenous overrepresentation in the penal system. While they may reduce an Indigenous person’s sentence or better yet provide alternative sentences rather than a custodial sentence, they do not adequately address the issues that brought the offender before a judge. Gladue reports, or the consideration of the Gladue factors by a judge, only occur when an indigenous person has committed a crime. Consideration of Gladue reports or Gladue factors seeks to reduce the culpability of indigenous persons for their crimes because of the role their background played in their commission of a criminal act. The Court in Gladue forces judges to consider things like the poor social and economic conditions that are disproportionately felt by Canada’s indigenous population or the systemic or direct discrimination that Canada’s indigenous peoples face. (20) A reduction in sentence or pan provision of alternative punishment does little to tackle these issues. Therefore, indigenous overrepresentation will remain an issue until the root of the issue is addressed. Having a judge recognize and consider these factors will not help. Instead, only a proactive approach rooted in reconciliation will adequately address the pressing issue the government is currently faced with, as they have been for many years. This would mean solving the many issues that colonialism has historically and currently presented. This would also mean creating a system of programs whereby indigenous communities are given the ability to decide what may be best for themselves and not have their issues solved by colonial instruments. To solve such complex systemic issues, a few legal reforms surely will not suffice.
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Endnotes
1 Marie-France Kingsley, “Indigenous People in Federal Custody Surpasses 30% Correctional Investigator Issues Statement and Challenge” (21 January 2020), online: Office of the Correctional Investigator <https://www.oci-bec.gc.ca/cnt/comm/press/press20200121-eng.aspx> [Kingsley].
2 Jamil Malakieh, “Adult and youth correctional statistics in Canada, 2018/2019” (21 December 2020), online: Statistics Canada <https://www150.statcan.gc.ca/n1/pub/85-002-x/2020001/article/00016-eng.htm> [Malakieh].
3 Bill C-41, An Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, 1st Sess, 35th Parl, 1995, c 22 at 9 (assented to 13 July 1995).
4 R v Gladue, 1999 1 SCR 688 [Gladue].
5 Ibid at para 24.
6 Ibid at para 7.
7 Ibid at para 20.
8 Ibid at para 91.
9 Ibid at para 93.
10 Ibid at para 98.
11 Tim Quigley, “Gladue Reports: Some Issues and Proposals” (2016) 31 Cr (7th) 405 at 405. [Quigley]
12 Ibid at 406
13 Kingsley supra note 1.
14 Quigley supra note 11 at 409.
15 Ibid.
16 Ibid at 410.
17 Ibid at 409
18 R v Ipeelee, 2012 1 SCR 433 at para 65 [Ipeelee].
19 Ibid at paras 66 & 67.
20 Gladue at para 67