Gladue Factors and the Sentencing of Indigenous Peoples: R v Okemow - Mackenzie Cardinal

Introduction

Speaking inside the community hall located in God’s Lake Narrows—a small Indigenous and Métis community located over 500 kilometers north of Winnipeg—Justice Martin of the Manitoba Court of Queen’s Bench delivered his sentence. In January, Justice Martin found Mr. Michael Okemow guilty for the second-degree murder of Ms. Crystal Andrews. In September, the court returned to God’s Lake Narrows to deliver its reasoning on the appropriate time that Mr. Okemow must serve in prison before he is eligible for parole. This is what this commentary will focus on, with a specific focus and analysis regarding the Gladue report that was provided for this case.

Prior to this analysis, it is worthwhile to recognize how Okemow provides a useful insight into the court’s role in the reconciliation process. Justice Martin recognized that he was speaking to an audience whose primary language was Cree, and to accommodate this, his delivery was quite simple and clear. Also, it is worth reiterating the fact that the court travelled to this remote northern community. As noted by Justice Martin, this was a small but important step in the reconciliation of the justice system and Indigenous people. 1 The courts willingness to take a small step towards reconciliation was further shown as a traditional smudge ceremony was completed prior to the commencement of the hearing.

Facts of the Case

On the early morning of November 8, 2015, Ms. Andrews, a young Indigenous woman and a mother, was walking alongside the road on her way home. In the midst of her walk Mr. Okemow pulled up beside her. Moments earlier, Mr. Okemow had run two people over after an altercation at another residence. While it is unclear exactly what transpired, it was found beyond a reasonable doubt that Mr. Okemow killed Ms. Andrews. 2 The RCMP who were searching for Mr. Okemow, because of the prior incident that he had been involved in, found Mr. Okemow’s truck partially submerged in a swamp. The submerged truck was just off of the road where Ms. Andrews' body would soon be discovered. Ms. Andrews' corpse was covered with branches, moss, and sticks. Her jacket and sweater had been removed and Mr. Okemow’s DNA was later discovered to be on her genitals. Mr. Okemow, in the time between the killing and his arrest, returned home, washed his clothes and hid his shoes. 3 The RCMP subsequently arrested Mr. Okemow for the earlier incident. However, once the news of Ms. Andrews discovery reached them, they suspected Okemow to be involved. Despite this suspicion it took two and half years for Mr. Okemow to be charged with the murder. As mentioned above, Justice Martin found Mr. Okemow guilty of second-degree murder back in January of 2020. 4

Sentencing Factors and the Gladue Report

Under section 235(1) of the Criminal Code of Canada, anyone found guilty of second-degree murder is automatically given a life sentence. 5 However, the judge can determine when the offender will be eligible for parole. In setting the amount of time that a person found guilty of a second-degree murder must serve, there are a number of factors that the court must consider. In this case, Justice Martin highlighted that he must take into account the nature of the offence and the circumstances surrounding the killing; the general parole sentencing principles outlined in section 718 of the Criminal Code, and the jurisprudence of past decisions regarding crimes of a similar nature. 6

In addition to these more general considerations, Justice Martin was also obliged to consider the Gladue report that had been prepared for the case. Gladue reports arose after the implementation of section 718(e) to the Criminal Code, and the Supreme Court of Canada’s subsequent interpretations of section 718(e) in the cases of R v Gladue, R v Wells, and R v Ipeelee. 7 Essentially, Gladue reports provide the court with a chance to consider the background of the Indigenous offender, their experience as an Indigenous person, and the impact that colonialism has had on the peoples to whom that specific offender belongs, regardless of the crime committed. 8 The purpose of a Gladue Report is to provide the court with a holistic explanation regarding how the situation of the offender fits within the broader social and historical experiences that their peoples have faced in Canada. 9

In considering the Gladue report, Justice Martin considered a number of things. He first noted the fact that members of Mr. Okemow’s family were residential school survivors. Secondly, Justice Martin acknowledged how the report showed that the cultural, social and religious practices of the Manito Sakika peoples had been fractured by the policies of the Canadian government and the fervent work of church missionaries. 10 The report also provided the court with information that there was a long history of substance abuse, physical abuse and neglect shown to Mr. Okemow throughout his life. Both his parents were alcoholics and Mr. Okemow himself began drinking at the age of ten. The report stated that Mr. Okemow drank every day unless he was in prison, and that he possessed a sixth-grade education. 11 The psychological evaluation which was included in the report, noted that Mr. Okemow had undiagnosed schizophrenia. 12 Tragically, Justice Martin remarked that Mr. Okemow received his best periods of treatment for his struggles during the times he was in prison. Once he got out, Justice Martin remarked, he had very limited, if any, access to the help he needed. 13 Considering these factors alongside the other more general factors which go into sentencing, Justice Martin decided to allow parole after 15 years and 10 months. 14

Analysis of Gladue Reports

In his analysis, Justice Martin provided a cogent insight into how the courts can utilize Gladue reports to consider a wide variety of factors that are specific to the Indigenous context. In particular, the report allows one to clearly see how the colonial system is still having effects on Indigenous peoples today. Within Mr. Okemow’s sentencing hearing, Justice Martin acknowledged that these Gladue factors definitely had an effect on Mr. Okemow and his actions. 15 However, Justice Martin decided that these factors played only a minimal role in Mr. Okemow’s killing of Ms. Andrews; stating that Mr. Okemow’s age, long held propensity for violence, and the nature of the killing had disentitled Mr. Okemow from leniency. 16 With respect to Justice Martin and his decision, it would appear that the impacts of colonialism would have had a direct impact in the development of those specific traits in Mr. Okemow. The ramifications of colonial practices have been seen to manifest themselves in the descendants of residential school survivors; often in the forms of mental illness, addiction, and poor educational standing. 17 These factors, in turn, are generally attributed as often causing criminal behaviour. Thus, is it not possible that the reason why Mr. Okemow had a long history of violence is because of the direct and intergenerational trauma that he had suffered through?

Moreover, while the Gladue report in this particular case had managed to serve at least a satisfactory role in this hearing, it has been argued that not all Gladue reports are created equal. 18 In Manitoba specifically, there is no designated program to create Gladue reports for Indigenous offenders. 19 Instead, Gladue reports are created by prohibition officers, and in most cases, these officers prepare pre-sentencing reports and then add in “Gladue factors” at the request of the defence. 20 However, as some scholars have pointed out, there is a fundamental contradiction between pre-sentencing reports, which focus primarily on risk assessment, and Gladue reports, which take a more holistic approach. 21 As a result, Gladue reports take much more time to be prepared, as they require consultation with the broader community and a more in-depth look into the background of the accused. 22 Oftentimes, the probation officers lack the specialized training which is required to provide a meaningful analysis of how the Indigenous experience relates to the offender. 23 This is not specifically a Manitoba problem, but is an issue affecting the justice system in Canada as a whole. For example, there are instances of justices in other parts of the country expressing their frustration that the Gladue reports that have been prepared for their hearings are of poor quality; or, that they are not at all related to the specific circumstances of the accused. 24

Therefore, the question now becomes, what must be done to ensure that Gladue reports are both provided for an Indigenous offender, and completed in a manner which is useful for both the court and the offender? As Milward and Parkes suggest, a Gladue program should be established in order to ensure that Gladue reports are created with quality and precision. 25 It is recognized by Milward and Parkes that this has already been implemented in Ontario, where Aboriginal Persons Courts have programs which facilitate the production of Gladue reports. 26

Conclusion

In conclusion, the case of Okemow provides a useful insight into how Gladue reports can be utilized by the court to come to a decision which recognizes the specific difficulties that many Indigenous people face. While it would be a welcome improvement, as well as a further step towards reconciliation to see the quality of Gladue reports become more consistent and thoroughly completed, it is nevertheless important to realize how Gladue reports signify the court systems acknowledgement of the unique situation that Indigenous people are in within the Canadian criminal justice system.

Endnotes.........................................

1 R v Okemow, 2020 MBQB 128 at para 3.

2 Ibid at para 27.

3 Ibid at paras 28-33.

4 Ibid at paras 18-19.

5 Criminal Code, RSC 1985, s. 235(1); Okemow at para 20.

6 Criminal Code, RSC 1985, s. 235(1); Okemow at para 20.

7 Alexandra Herbert, “Change in Paradigm or Change in Paradox? Gladue Report Practices and Access to Justice” (2017) 43:1 Queen’s LJ at 151-154.

8 Ibid.

9 Jay Istvanny, Gladue Primer (Victoria: Legal Services Society of British Columbia, 2011) at 7; David Milward & Debra Parkes, "Gladue: Beyond Myth and towards Implementation in Manitoba" (2011) 35:1 Man LJ at 88-89.

10 Okemow at para 43.

11 Ibid at paras 36-38.

12 Ibid at para 39.

13 Ibid.

14 Ibid at para 58.

15 Okemow at para 44.

16 Ibid.

17 Piotr Wilk, Alana Maltby, and Martin Cooke “Residential Schools and the Effects on Indigenous Health and Well-Being in Canada—a Scoping Review” (2017) 38:8 Public Health Rev at 18; Amy Bombay, Kimberly Matheson and Hymie Anisman “The Intergenerational Effects of Indian Residential Schools: Implications for the Concept of Historic Trauma” (2014) 51:3 Transcultural Psychiatry 320 at 324-326.

18 Hebert at 158.

19 Milward & Parkes at 84.

20 Ibid at 87-88; Colton Fehr, “Infusing Reconciliation into the Sentencing Process” (2019) 28:2 Const Forum Const at 26.

21 Milward & Parkes at 88-89.

22 Ibid at 88.

23 Fehr at 26.

24 Herbert at 158.

25 Milward & Parkes at 94.

26 Ibid at 88.