Theories of Justice: Gladue in Saskatchewan

This is a story about Canadian sentencing law, Aboriginal people in jail and what the government and the courts have tried to do about it. Canadian sentencing law is a complicated and poorly understood story. Sentencing Aboriginal people is an even more complicated and even less well understood story.

The boxes

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"I think sentencing is about the hardest thing a judge has to do, and do well." -retired judge Marion Buller 

Tristan Pinder, in an orange jumpsuit, asked for a smoke outside Battleford Court of Queen's Bench. On an April afternoon, he was being escorted from court to jail. 

Earlier that afternoon, the Crown presented its case against him.

Pinder was charged with stabbing and robbing a cab driver last year, discharging a firearm at police, fleeing from police and stealing gasoline. 

The Crown recommended a 14-year jail sentence.

A News-Optimist contingent spent an afternoon as courtroom bench bums to see if Gladue factors would affect Pinder's case. Pinder eventually received a 13-year sentence.

No one had a smoke for Pinder.

Rocky Ochusayoo's sentencing took place right before Pinder was in court.

In 2017, Ochusayoo was involved in a shootout with police on Onion Lake Cree Nation. He fired and police fired back. He was also charged with escape from Onion Lake court months later.

Ochusayoo received a six-year sentence.

Ochusayoo was involved with gangs, and told the court he wanted out of that life. He grew up in difficult circumstances, according to a pre-sentence report, and he was affected by alcohol and crystal meth addictions. He had Gladue factors.

North Battleford is sometimes referred to as the crime capital of Canada. In fact, the Battlefords are something of a law capital.

When they're not at work, local legal professionals, including judges, Crown, Legal Aid and private lawyers participate in sports, arts and politics, pay their taxes and give to charity.

glass box
A glass box at North Battleford Provincial Court. - Josh Greschner

A good portion of workdays are spent in Court of Queen's Bench in Battleford, and in provincial court in North Battleford.

Queen's Bench was built in 1907 and is a pillar of historic Battleford. It's located beside a lumber yard and near a school yard. The court house is within smacking distance of a long home run.

In the upstairs courtroom, which resembles a small church, the accused sit in a wooden box in the middle of the room. Pinder and Ochusayoo sat there. So did Gerald Stanley.

North Battleford Provincial Court was built in the 1990s. Its interior features Dixie Cup colour combinations.

The boxes in provincial court are covered with glass. Rather than sitting in the provincial court boxes, the accused usually stand.

Many of the people who find themselves in the boxes or in front of the courts (or appearing via closed circuit TV) are Aboriginal. 

Some of their last names appeared in crime stories in the News-Optimist 30 years ago.

The bucket

"There's already too many Aboriginal people in the bucket." -North Battleford provincial court trial judge, 2018

Aboriginal people are overrepresented in jails in Saskatchewan, meaning there is a much higher percentage of Aboriginal people in jail compared to the overall population of Aboriginal people in the province.

Currently, about 16 per cent of people in Saskatchewan are Aboriginal. 

The amount of Aboriginal people in Canadian jails has increased since the second World War.

According to research by Dr. John H. Hylton, the number of Aboriginal people admitted to Saskatchewan correctional centres increased from 3,082 in 1976-77, to 4,757 in 1992-93.

Aboriginal people made up 65.4 per cent in 1976-77 of overall rates of admission, and 69.1 in 1992-93.

According to StatsCanada, nearly 13,400 total people in Saskatchewan were in sentenced custody or in remand in 2016-17. Seventy-six per cent of these people were Aboriginal. 

Two Supreme Court decisions, Gladue in 2000, and Ipeelee in 2012, were supposed to have a role in attempting to decrease Aboriginal jail overrepresentation. 

Some argue Gladue and Ipeelee aren't being properly applied in Saskatchewan. Some say the problems leading to overrepresentation are bigger than what the courts could, and should, deal with.

Theories of justice

"Anyone who maims another shall suffer the same injury in return, fracture for fracture, eye for eye, tooth for tooth..." -Book of Leviticus

Some don't see the quantity of incarcerated Aboriginal people as much of a problem. Since the offenders did the crime, they should do the time.

Canadian philosophy professor Robert M. Martin's book, Philosophical Conversations, summarizes arguments into conversations. 

In one conversation, "Retributivist" talks to "Utilitarian." Retributivist thinks Utilitarian misses the point of punishment.

Retributivist argues reform or deterrence aren't moral means of punishment, and supports "nasty" jail sentences as punishment.

“Why just bring additional pain or suffering into the world?" Utilitarian asks.

"Because it's deserved," Retributivist says. "People who harm others deserve to be harmed in return. They deserve to suffer in return for the suffering they caused. It's only justice. When they cause harm to others, they incur a sort of debt to society, and they repay that debt when they suffer themselves."

Utilitarian says retribution doesn't do any good, is vengeful and crazy.

"I think that punishment with utilitarian motives shows disrespect for the criminal as a person," Retributivist says. "Retributive punishment is a way of showing respect for the criminal."

Utilitarian can't believe it. Retributivist says showing respect for people involves treating them in a way they don't like or appreciate. Respecting people "involves treating them seriously, as a source of their actions, not as victims of society or economics."

Utilitarian disagrees.

Retributivist says, "if you're a utilitarian, you say, 'Oh well! Punishing him won't do any good! Let him go back to his nice life in suburbia.

"But this is incredibly misguided," Retributivist says. "He had to be punished. Anyone with any sense can see that."

"I guess you must think I don't have any sense!" Utilitarian says.

"Clearly we must agree to disagree here," Retributivist says.

Restorative justice has emerged in Western law in recent decades as a different way to do sentencing, and as a possible alternative to sending offenders to jail.

As opposed to retributive justice which can be more straightforward and concerned with actions, modern restorative justice takes relationships and more context into account, and can be more circumstantial.

According to the 1999 Supreme Court of Canada decision R. v. Gladue, "restorative justice may be described as an approach to remedying crime in which it is understood that all things are interrelated and that crime disrupts the harmony which existed prior to its occurrence, or at least which it is felt should exist. 

"The appropriateness of a particular [penalty] is largely determined by the needs of the victims, and the community, as well as the offender. The focus is on the human beings closely affected by the crime." 

Jail is usually thought to be incompatible with restorative justice. Restorative justice consequences take other forms.

Gladue report writer Anisa White, in an online video, told the story of a woman charged with clam digging out of season. A suggested consequence was to work at a food bank for some time and package food baskets for families in need.

Two Department of Justice Canada videos relate two situations. 

A consequence (chosen by the victim) for a woman who stole from a café was to prepare a meal for a large community dinner, in which much of the community knew the victim and knew about the crime.

In another situation, a young man assaulted his social worker. A consequence was a sentencing circle. In a discussion, the young man revealed he was frustrated with being moved to another foster home. He apologized and the social worker accepted his apology.

In a class taught by law professor John Borrows available online, a woman explained her situation.

"My youngest brother was killed by a drunk driver … and over the years … the young boy who was driving the car, he spent his life helping my father until the young boy died."

"That's how he made things right for my father."

Justice Vancise of the Saskatchewan Court of Appeal wrote in 2000 that restorative justice can be more severe than retributive justice. Offenders often face their victims in restorative justice settings, and must confront their own problems. Shame can be involved.

Retired judge and Chief Commissioner of the Missing and Murdered Indigenous Women and Girls inquiry Marion Buller told the News-Optimist some offenders she's dealt with preferred jail to treatment or counselling.

Characterizing their comments, Buller said they would say "please send me to jail, I can do jail, I've done it before. It's easy, I do my time, I get out."

Some offenders considered treatment or counselling to be "too hard."  

In summarizing such an argument, lawyer Daniel Kwochka wrote "the healing process can be more intense than incarceration."

Western ideas of restorative justice and Indigenous legal systems have similarities, but Jeanette Gevikoglu of Public Prosecutions Canada made a distinction between Western restorative justice and Indigenous law. Indigenous legal systems also have retribution.

In order for restorative justice to be effective for victims, victims must also agree with the basic premises. 

But much of the public thinks the system shows it cares about victims by the length of a jail sentence.

The Hill

"Parliament, in a typically Canadian way, has tried to blend retributive goals of sentencing with concepts of restorative justice"  -Justice William Vancise, 2000

Sentencing in Canadian law isn't strictly retributive justice or restorative justice, but uses both.  

Criminal justice reform was a hot topic on Parliament Hill in the early 1990s.

In 1996, the federal Liberals passed new sentencing law.

Sentencing principles are found in section 718 of the Criminal Code. Judges use them to make sentences.

The fundamental purpose of sentencing in Canada is "to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just and peaceful society." 

Sentencing objectives include denouncing unlawful conduct, deterrence, rehabilitating offenders, separating offenders where necessary, providing reparations and promoting a sense of responsibility in offenders.

The fundamental principle, according to the Criminal Code, is "a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender."

Another principle is sentences should be similar to sentences imposed on similar offenders for similar offences.

The judge's goal is to make fit sentences given all these factors. Judges also take a person's criminal record into account. 

Retribution by itself isn't a sentencing principle.

The Criminal Code also notes, at 718.2(e) "all available [penalties], other than imprisonment, that are reasonable in the circumstances and consistent with harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders."

718.2(e) has been controversial.

In a committee meeting, Minister of Justice Allan Rock said the inclusion of the reference to Aboriginal people was because "they are sadly overrepresented in the prison populations of Canada."

allan rock
Former Liberal Minister of Justice Allan Rock wrote sentencing law into the Canadian Criminal Code. Canadian sentencing is a mix of retributive and restorative justice. A rule in the Code is that judges should look for penalties other than jail given the right circumstances, and "pay particular attention to the circumstances of Aboriginal offenders." - ourcommons.ca

Law professors Philip Stenning and Julian Roberts wrote the "circumstances of Aboriginal offenders" didn't attract much attention in Parliament at the time, although some commented.

Bloc Quebecois MP Pierette Venne called the reference to Aboriginal people in 718.2(e) "nine sneaky words," saying the government was "trying to sneak through the back door the concept of a parallel system of justice for Aboriginals."

venne
Bloc Quebecois MP Pierette Venne questioned the "nine sneaky words" referring to Aboriginal people in the Criminal Code, and expressed concern they might sneak in "a parallel system of justice for Aboriginals." - ourcommons.ca

In 1994, a report by the Canadian Police Association denounced section 718.2(e).

"To specify one race in particular as requiring special treatment not afforded to others on the sole basis of membership in a racial group has no place in legislation like this," the report stated. 

"It is paternalistic discrimination of the worst kind and philosophy aside, it just does not work. One need only examine our history of dealing with native people to see that this approach is doomed to failure."

The Liberals also introduced conditional sentence orders at the same time they introduced sentencing principles.

When someone is convicted of an offence where the court imposes a sentence of less than two years, and the judge thinks the sentence in the community would not endanger the community, and is consistent with the purpose and principles of sentencing, the court can order a community-based sentence, with conditions.

A familiar recitation at North Battleford Provincial Court, such conditions include being of good behaviour, appearing before the court when required and other restrictions involving a supervisor. Additional conditions could include alcohol and drug restrictions, a weapons prohibition, attending a treatment program and others.

Many people are skeptical of the ideas around Canadian sentencing, and how sentencing has taken place over the years, even before Gladue.

According to a recent unscientific News-Optimist poll, 76 per cent of responses found the Canadian justice system to be “broken and frustrating.”

"To many Canadians," writes Canadian lawyer Linda Silver Dranoff, "sentences for crimes often seem unduly short," while many Canadians think sentences are too lenient. 

Canadians have been criticizing lenient sentences since at least the early 1980s.

New sentencing regime

Some thinkers say you can't logically mix retributive and restorative justice, and that one theory could violate the other. Others say you can, and that Canada should.

A question in the legal community in the 1990s was how the Criminal Code changes would affect the practice of sentencing.

Trial judges make sentences. Crown or defence can appeal sentences of trial judges, and provincial Courts of Appeal decide what cases they want to take on. 

The Saskatchewan Court of Appeal sometimes uses cases to clarify what the law is.

According to a 1997 paper by Crown Solicitor Laura Bourassa, disagreements regarding the new sentencing rules arose in a 1997 Saskatchewan Court of Appeal decision involving Donna McDonald from Fond du Lac. 

McDonald was at a house party and a brawl broke out. A drunk McDonald drove a half-ton truck into a crowd, killing Albertine McDonald. 

McDonald, 33, was caretaker of six children. She entered a guilty plea.

McDonald's original sentence was nine months of electronically monitored house arrest followed by 15 months probation. The Crown appealed the sentence.

In the Court of Appeal decision, Justice Nicholas Sherstobitoff wrote the new sentencing laws "remain essentially unchanged" from those the courts used previously. 

Justice William Vancise disagreed, writing that to think the new law didn't indicate the intention of Parliament to change is "to narrowly interpret the legislation and to take a reactionary approach to sentencing."

The Court of Appeal ultimately found the original sentence to be unfit, and gave McDonald an 18-month jail sentence, although her previously served time counted toward the sentence. She got an additional six months jail time.

Vancise would have allowed a conditional sentence.

Disparity

"Such individualization would lead to potential disparity from the perspective of the 'offence,' but would be correct in terms of parity to 'offenders,'" -law professor Dwight Newman, referring to Gladue, 2000

The namesake of a new direction in Canadian sentencing law was a 19-year-old mother living in Nanaimo, B.C.

Jamie Gladue pled guilty to manslaughter for killing her common law husband Reuben Beaver. Gladue was celebrating her 19th birthday. Gladue suspected Beaver, 20, of having an affair with her sister, including during the night of the killing. 

At one point, Gladue chased after Beaver with a knife and stabbed him. The knife penetrated his heart. Gladue was drunk at the time.

Gladue had a hyperthyroid condition "which caused her to overreact to emotional situations." 

The trial judge, despite 718.2(e), found there were no special circumstances arising from the Aboriginal status of the accused that he should take into consideration. 

Both Gladue and Beaver were living in an urban area off-reserve and "not living within the Aboriginal community as such."

Gladue was originally sentenced to three years jail. Gladue appealed, and the case went to the B.C. Court of Appeal, and then to the Supreme Court of Canada.

The Gladue decision by the Supreme Court took place in 1999. Gladue interpreted 718.2(e). The decision quotes reports that say the criminal justice system "has failed the Aboriginal peoples of Canada." 

The decision calls for a different "method of analysis" to achieve fit sentences for Aboriginal offenders. 

According to Gladue, in sentencing an Aboriginal offender, a judge must consider "the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts" and "the types of sentencing procedures and [penalties] which may be appropriate in the circumstances for the offender because of [their] particular Aboriginal heritage or connection." 

The concept of Gladue factors emerged. According to a Gladue Awareness Project booklet, unique background factors might include residential school, physical or sexual abuse, alcohol or drug abuse, FASD, family breakdown, or foster care.

The decision disagreed with Justice Sherstobitoff in McDonald: the new sentencing law was more than re-saying what already existed.

Judges in Gladue took a similar view as Justice Vancise in that community-based sentences should be used, and that jail should be reserved for "the most serious offences, particularly those involving violence."

718.2(e), Gladue says, is designed "to ameliorate the serious problem of overrepresentation of Aboriginal people in prisons, and to encourage judges to have recourse to a restorative approach to sentencing."

Gladue quotes a previous Supreme Court decision which states sentencing, for all offenders, "is an inherently individualized process." Disparity is a natural consequence of such an approach.

Thus, "the jail term for an Aboriginal offender," according to the Gladue decision, "may in some circumstances be less than the term imposed on a non-Aboriginal offender for the same offence."

However, section 718.2(e) "is not to be taken as a means of automatically reducing the prison sentence of Aboriginal offenders; nor should it be assumed that an offender is receiving a more lenient sentence simply because incarceration is not imposed."

Particularly violent and serious offences would result in imprisonment for Aboriginal offenders as often as for non-Aboriginal offenders, Gladue states.

Gladue also notes sentencing alone won't remove the causes of Aboriginal offending, and prison rates are a result of reasons including poverty, substance abuse, lack of education, and a lack of employment opportunities.

The Supreme Court didn't change Jamie Gladue’s three-year sentence, although Gladue was granted day parole in 1997 after spending six months in a correctional centre for women, and in 1998 was granted full parole.

Gladue lived with her father for some time, took counselling for drug and alcohol abuse, and did schoolwork.

Promises

"…[After Gladue,] judges across the country were going 'I have this decision which tells me I'm supposed to do something, and I don't know what I'm supposed to do, and I don't know how I'm supposed to do it… and so there was this frustration..." -Law professor Jonathan Rudin, 2015, in a presentation to the University of Saskatchewan College of Law

A big debate took place after Gladue, which can be found in dusty red books in the University of Saskatchewan's law library.

Two law professors, Philip Stenning and Julian Roberts, were skeptical 718.2(e) and its interpretation in Gladue. They wrote an article called "Empty Promises."

Stenning and Roberts wrote 718.2(e) appears to assume the overrepresentation of Aboriginal people in Canadian jails is partly due to inappropriate sentencing of Aboriginal offenders. 

They reasoned the different methodology of Gladue would likely do little about Aboriginal jail overrepresentation, and that Aboriginal people are before the courts more likely because of social and economic factors. 

Judges redressing history "amounts to hijacking the sentencing process in the pursuit of other goals."

"To suggest that such factors must automatically be considered if the offender happens to be Aboriginal … is inherently unfair," they wrote.

Stenning and Roberts were in favour of defence arguments in which offenders established "a causal chain that relates their Aboriginal status… to the offence."

Stenning and Roberts also doubted the relevance of traditional restorative justice to many Aboriginal people, adding that the Supreme Court assuming "healing and restoration of both the victim and offender" are what Aboriginal people want, "reflects a 'Pan-Indian' approach that does not capture the current diversity of the Aboriginal experience in Canada."

They also raised the point that Aboriginal people aren't the only people in Canadian society who have been discriminated against.

Law professors Kent Roach and Jonathan Rudin responded with an article called "Broken Promises."

They wrote decision makers didn't say Gladue had much to do with pre-existing discrimination at the sentencing level, but that sentencing could help direct Aboriginal people from jail.

They also wrote Stenning and Roberts seemed to be relying on an outdated theory of equality.

Section 15 of the Canadian Charter of Rights and Freedoms says:

"Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability."

What "equal" means has been a matter of debate. Two theories of equality are formal equality and substantive equality.

Business instructor Danielle Reid defines formal equality as "a belief for fairness, people must be consistently or equally treated at all times."

Law professor Bruce Pardy defined substantive equality as equality of outcome. 

"[Substantive] equality does not mean treating people the same but requires treating them differently as as to achieve equal or equivalent effects," Pardy wrote in a blog.

According to Roach and Rudin's paper, the idea of formal equality has been "discredited in Canadian law."

In the 1989 Supreme Court case Andrews, the court found discrimination could occur "from similar treatment, even in the absence of an intent to discriminate," Roach and Rudin wrote.

The Supreme Court was committed to substantive equality.

What one might call reverse discrimination, under substantive equality, "can be justified on the basis that they attempt to [improve] the position of the disadvantaged," Roach and Rudin wrote.

Sometimes substantive equality measures are referred to in the Battlefords as "special treatment." 

Unique circumstances

“For so many in Aboriginal communities, there's no distinction between those who are the offenders and those who are the victims”  -Truth and Reconciliation Commission Report

A big question in the debate is: to what extent should the state change criminal law because of circumstances the state had a major role in causing?

The unique circumstances of Aboriginal people in Canada is important to the Gladue decision.

Economic circumstances have their roots in the 1800s. Anthony J. Hall wrote treaties were understood differently: whereas many Aboriginal people saw treaties as a sacred pact between independent nations, colonists saw them as self-serving deals.

Reserves were created, shrunk and displaced.

A B.C. chief once referred to reserves as a type of purgatory. Indians were deprived of various rights at various times, including the ability to sell wheat freely, voting rights and free passage, in hopes they would give up the culture and embrace “civilization.” Few gave up their Indian status.

Historically, the Indian Act has been used as a political assimilation tool.

At the time that policies encouraged the white population to build an agricultural economy, according to Sheelah MacLean of the University of Saskatchewan, Indians were subject to policies of “cultural genocide.” 

Many social factors affecting Aboriginal people today come from residential schools, experts argue. Local lawyer Eleanore Sunchild connects residential school experiences to current criminal behaviour.

There has been a range of residential school experiences expressed publicly.

According to the Truth and Reconciliation Commission, “many students have positive memories of their experiences of residential schools and acknowledge the skills they acquired, the beneficial impacts of the recreational and sporting activities in which they engaged and the friendships they made.”

Many had terrible experiences. 

Generations of Indian children in Saskatchewan attended residential school, and many were forced to attend. Many were deprived childhoods with their families and good parenting and love. 

At Truth and Reconciliation events, "Happy Birthday" was sung for attendees who didn't have birthday parties as children.

Many also didn’t receive skills to do well in the world after finishing, or running away from, residential school.

“There he is,” John B. Tootoosis was quoted as saying in a 1984 book, “hanging in the middle of two cultures and he is not a white man and he is not an Indian.”

Beatings and sexual abuse took place at residential school. Many students left with a sense of shame, guilt and worthlessness for being Aboriginal. Many turned to alcohol.

Pedophile William Starr was administrator of Gordon’s residential school, north of Regina, from the late 1960s until 1984. In 1993, he pled guilty to sexually assaulting 10 boys. He received a four-and-a-half year jail sentence.

A number of people filed lawsuits against Starr. In a 2000 court case, Starr said he didn’t remember all the children he had sexual contact with at the school, and said it could have been hundreds.

According to the TRC report, some argued in favour of a “bad apple” theory of residential schools, in which there were only a few pedophiles.

Personal stories in the Truth and Reconciliation report suggest a larger pattern.

A woman at the Winnipeg TRC meeting said she was raped by fellow students and sexually abused by a residential school headmaster. A woman said she was sexually assaulted by a staff member at the Assiniboia residential school. 

In the early 2000s, a man sued the United Church of Canada and the Government of Canada for sexual assault and received damages.

Men from Amos, Que. and Cross Lake, Man. said they were sexually and physically abused. A woman said she was raped in Fort Albany, Ont. by one of the lay brothers. 

A man at the Winnipeg TRC meeting said he was sexually abused, became an alcoholic, and didn’t know how to raise his children. A man who went to Blue Quills residential school in Alberta said he was sexually abused, got into drugs and lived on the streets of Canadian cities.

A man who attended the Spanish, Ont. school said he was sexually abused and tried to commit suicide. People said sexual abuse took place in Chesterfield Inlet, Nunavut; La Tuque, Que.; Edmonton, Alta.; Fort Alexander, Man.; Lytton, Mission, Alert Bay and Kamloops, B.C.

According to the TRC, sexual abuse in Saskatchewan took place in Beauval, Prince Albert and Kamsack.

According to a 1996 report by a B.C. tribal council, 30 people at the time reported sexual abuse. A task force undertaken by B.C. RCMP in the 1990s report 374 victims experienced sexual assaults.

As of January 2015, the Independent Assessment Process received 38,000 claims for injuries resulting from physical and sexual abuse at residential schools. Many people from Saskatchewan filed claims.

Residential school staff were convicted of various sexual offences over the decades. The first successful sexual abuse prosecution the TRC could find of a residential school staff member was 1945.

There’s also “a disturbingly strong connection” between being sexually abused as a child and later sexually abusing others, according to the TRC.

Sunchild said conditions at residential school facilitated sexual abuse. At night, students would be locked in large dorms without supervision. Sexual abuse took place between students.

"Honestly I don't think they realized what had happened to them [in that] being sexually abused was wrong," Sunchild said, "because their first sexual experience was an abusive one, so that just continued amongst the students."

Such events became a great source of shame for many people, Sunchild said, and many left residential school with anger. Many turned to alcohol. 

The cyclical nature of alcoholism, violence, trauma and sexual abuse is related to the idea of intergenerational trauma. Jail doesn’t do anything to break the cycle, Sunchild said, and “the problem is that there is no way for our people to be effectively healed on a mass scale.”

 

beauval
A historical photo of an oblate missionary instructing Indian children at Beauval. Some who went to residential school had good experiences. Others had terrible experiences and were sexually abused. In 1979, Paul Leroux was convicted of sexual assault, was incarcerated for four months and later received a pardon. In 1998, he was convicted of attempted buggery, indecent assault and gross indecency and was sentenced to 10 years jail. He was paroled after four years. In 2013, Leroux was convicted of 10 counts of indecent assault at Beauval school. He was released on parole in 2016. - From the Truth and Reconciliation Report, Deschatelets Archives Ottawa

Meanwhile, in Regina

"[Gladue factors] must be taken into account, and in many cases can reduce a sentence or will reduce a sentence that a person might otherwise get. It may not though depending on the nature of the crime." -Judge Lorna Dyck, 2019

The daily grind of provincial court isn't high profile murder trials, but a whack of lesser crimes where someone might or might not go to jail.

After Gladue, Saskatchewan trial judges and the Court of Appeal had to sentence for drug crime, criminal negligence causing death, on-reserve white collar crime, repeated drinking and driving, and a sexual assault.

Two ideas that would be important in later rulings in the province are found in the 2000 Saskatchewan Court of Appeal decision called Laliberte: factors causing criminal conduct, and judicial notice.

A question in Laliberte was whether or not to impose a community-based sentence for drug trafficking or possession for purposes of trafficking. Monica Laliberte pled guilty to two counts each.

The original sentence was a 12-month conditional sentence, which included four months of house arrest and two years probation. The Crown appealed.

Laliberte, an Aboriginal offender, abused alcohol and drugs, the case said. Laliberte was deemed a good candidate for a conditional sentence, and presented her probation officer with a recovery plan involving treatment and living with her foster parents.

A conditional sentence would be preferable to brief jail time, the trial judge wrote. 

Justice Vancise of the Court of Appeal wrote community sentences should be used given the right circumstances for drug offences and offences against the person.

Judicial notice, meanwhile, is the idea that "evidence in some cases without hearing or inquiry, is accepted by a court," according to Black's Law Dictionary. 

The Supreme Court in Gladue said judges must take judicial notice of systemic factors.

Vancise acknowledged Monica Laliberte had Gladue factors, but thought the Supreme Court judges weren't suggesting "background factors are so 'notorious' in general as to be capable of proof without evidence or that they can be verified by resort to reports of indisputable accuracy and applied [to] the particular facts."

Echoing Stenning and Roberts, Vancise also wanted to know a causal link between the Aboriginal offender's background and their criminal conduct.

Vancise cited a case where a judge couldn't find background factors were the cause of the offender's conduct and refused to impose a community-based sentence. Vancise wrote he "generally agreed" with the approach.

Nonetheless, the Crown's appeal was dismissed. Vancise wrote the same approach of removing big drug dealers from society shouldn't apply to small fry or bit players "who often traffic to feed a habit."

In a 2004 case, Joseph John, riding with his partner Linda McIntyre, drove a truck loaded with supplies and hit, at a high speed, a tractor trailer in a dust cloud in front of him. McIntyre was killed.

John was raised in a traditional Aboriginal lifestyle in northern Saskatchewan and didn't go to school. Rather, he lived off the land and worked as a commercial fisherman.

John was initially sentenced to three years jail, but he appealed. 

Vancise obtained more information than the trial judge did, and wrote the trial judge should have obtained more information.

Vancise gave John a community-based sentence, writing it would better accomplish the goals of sentencing than jail would.

John's sentence included time under house arrest, 240 hours of community service and a healing and reconciliation circle with McIntyre's daughters.

Closer to home, former Saulteaux First Nation chief Gabriel Gopher, and two councillors, Archie Moccasin and Mervin Night, were sentenced for defrauding the First Nation of $2.8 million of treaty land entitlement money. All three initially received conditional sentence orders.

Gopher's conditions included total confinement to his house for 12 months with few exceptions, electronic monitoring for six months, refusing entry to his residence of friends and family members who weren't approved by the supervisor, a drug and alcohol ban and community service.

"In my view," the trial judge wrote, "the dynamics of serving their sentences in the community is more likely to induce them to accept responsibility for their wrongdoing than will the influence of their mates in a prison cell."

The author of one victim impact statement worried those involved "may not be held to account for their wilful involvement."

The Crown appealed. In 2006, Moccasin and Night were sentenced to three years in jail. Gopher received a three-and-a-half year jail sentence.

In a 2002 case, the Court of Appeal dealt with Gladue applying to a drunk driver who skipped court dates.

Métis man Alan Andres was a serial drunk driver. A pre-sentence report noted his father died when he was five, when he was 10 he would drink alcohol with friends, he experienced parental neglect, and was in foster care at 13.

Andres kept drinking and driving and skipping court dates. He racked up 25 charges.

In 2000, he drove drunk into an accident scene along a road and hit a truck with a man inside, who Andres partially paralyzed. Andres also nearly hit a police officer.

After Andres was caught, "for some unknown reason," according to the Andres decision, he was released and given a court date. He didn't appear.

His wife later reported him for domestic abuse. Andres was drunk.

The trial judge sentenced Andres to six-and-a-half years in jail for his crimes and imposed a 10-year driving prohibition.

The Crown appealed, arguing the judge hadn't given enough weight to the sentencing principle of protecting the public, and too much weight to Andres' Aboriginal ancestry. The Crown asked for ten years jail, the maximum sentence for impaired driving causing bodily harm.

"There was no evidence before [the trial judge] that Mr. Andres' upbringing or the systemic factors referred to by the Supreme Court of Canada in Gladue are connected to his crimes," Vancise wrote. 

Vancise added alcoholism could be traced to Andres' upbringing, but wrote such circumstances don't explain repeated drinking and driving.

Vancise referred to the part of Gladue that said the more serious the offence, the less Gladue will have an effect on the sentence. Ultimately, Andres got a 12-year jail term, taking into account all the charges against him.

In a 2010 Court of Appeal case, Francis Bellegarde forced his way into a woman's home on a farm and raped her twice.

Bellegarde's parents went to residential school, but his lawyer "did not give particulars as to how that affected Mr. Bellegarde."

Bellegarde received a 15-year sentence. Bellegarde appealed.

The Court of Appeal reduced the sentence to 12 years. In a previous home invasion case, a man named Robert Pelly got a 15-year sentence, but he had over 100 previous convictions. 

Justice Richards of the Court of Appeal wrote Bellegarde shouldn't have been sentenced as high as Pelly, and the sentence was reduced for parity's sake.

"Serious"

The 2012 Ipeelee Supreme Court decision is often said to re-affirm Gladue, although it does more than that.

Manasie Ipeelee and Frank Ladue were designated long-term offenders.

Long-term offender designation "targets sexual and violent offenders, who, on the evidence, are likely to re-offend," according to a B.C. prosecution service fact sheet. Long-term offenders are subject to a long-term supervision order, and there are consequences for breaching the order.

Long-term offender status is a step below dangerous offender status. Dangerous offenders can go to jail for an indeterminate amount of time, and protecting the public is a main concern. Rehabilitation and reintegration are deemed to be possible for long-term offenders.

Parents of Ipeelee and Ladue died when the men were young and both were raised by their grandparents.

Ipeelee began drinking when he was 11, and became addicted.

His crimes included theft, break and enter, and joyriding. Other crimes were violent, including assaults while he was drunk. 

Ipeelee had sex with an unconscious woman and was sentenced to two years jail (before the Gladue decision took place). He later sexually assaulted and beat a homeless woman, and he was designated a long-term offender.

One of Ipeelee’s conditions was to abstain from alcohol. Ipeelee was released and police found him drunk and riding a bike. He received a three-year jail sentence. Given the circumstances, the trial judge deemed Ipeelee’s Aboriginal status as being of “diminished importance.”

Ipeelee appealed. The Ontario Court of Appeal dismissed the appeal. The case went to the Supreme Court.

Frank Ladue's background was similar to Ipeelee's, and Ladue also racked up a number of charges. Ladue went to residential school when he was five and alleged he was sexually assaulted.

Ladue was convicted of two sexual assaults and an attempted sexual assault on a sleeping woman. Sentences for the offences ranged from four months to 30 months jail.

Ladue attempted to sexually assault another woman, and he was designated a long-term offender after spending three years in jail.

An error by Crown officials eventually led to Ladue being placed in a residence with drug accessibility. Ladue breached his order by using cocaine. The trial judge imposed a three-year jail sentence. Ladue appealed, and got a year-long sentence.

The Ipeelee decision makes it mandatory for judges to apply 718.2(e) and Gladue in all cases involving Aboriginal offenders, including long-term offender breaches. 

Justice LeBel in Ipeelee expressed concern Gladue wasn’t being applied for “serious” offences (the Criminal Code didn’t distinguish between “serious” and “non-serious” crimes, LeBel wrote) and that Courts of Appeal had paid too much attention to where Gladue said Aboriginal offenders would get the same sentences as non-Aboriginal offenders.

Ipeelee did away with the approach Vancise used where defence lawyers had to find a causal link between background factors and the crime, and replaced it with finding how systemic and background factors affect the culpability of the offender. Proving the causal link was difficult to do and “the interconnections are simply too complex.”

“While this rarely – if ever – attains a level where one could properly say that [an offender's] actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their culpability.”

Ipeelee connects Gladue to the fundamental principle of sentencing, where “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

Ipeelee also says Gladue doesn’t forbid background and systemic factors being taken into account for non-Aboriginal offenders.

The decision also disagreed with Vancise in regards to judicial notice, saying judges must take judicial notice of the unique circumstances.

Ipeelee and Ladue each got a year-long jail sentence for breaching their orders.

Self-declared

"Gladue does not give Indigenous people authority to reclaim the legal traditions that would involve punishing their own people..." -Jeanette Gevikoglu, 2011

In a 2013 article, Jeanette Gevikolgu of Public Prosecutions Canada criticized the Ipeelee decision and how it treats identity.

"The criminal law, as [Ipeelee] demonstrates, uniquely particularizes Indigenous identity as a factor that must have weight in sentencing Indigenous offenders – regardless of the offence, the victim, or the link between the offender and his or her Indigenous community."

Courts attempting to reduce Aboriginal jail overrepresentation face a conundrum: they are asked to help, but a mechanism used to help (differentiating offenders on the basis of Indigenous identity) has a history with the government, such as in the Indian Act.

Gevikoglu wrote the court conflates Indigenous culture and law with Western restorative justice, and Indigenous legal traditions with each other.

In doing so, the court conceives of Indigenous tradition in contrast and even in contradiction to Canadian criminal law, Gevikoglu wrote.

"Unfortunately," Gevikoglu wrote, "the court does not suggest that anything about the Inuit or Dena worldview was particularly relevant to the Court's approach to sentencing repeat sex offenders who breach court orders, like Ipeelee or Ladue."

The diversity of Indigenous communities and different legal traditions aren't accounted for in Ipeelee or Gladue, according to Gevikoglu, and such differences "are all meant to be encompassed in the reference to "Aboriginal." 

There was concern, and still is today, that Gladue offers race-based discounts.

Gevikoglu wrote the Supreme Court dismisses the concern that Gladue and Ipeelee contribute to race-based sentences, and if the decision is perceived to by Indigenous communities, or what effect it might have on them.

At stake is the possibility Justice Rothstein of the Supreme Court raised in Ipeelee: "Aboriginal communities are not a separate category entitled to less protection because the offender is Aboriginal."

Many victims of crime committed by Indigenous people are Indigenous and live in Indigenous communities.

Gevikoglu also took issue with the way the court construes diminished moral culpability, writing the decision "has the effect of inferring diminished moral culpability on an offender [because] of his or her Indigenous identity."

"The Court's decision places Indigenous offenders in a similar position as others for whom the assignation of responsibility is a problem, such as the mentally ill or youth."

The state trying to help Indigenous people, and doing things "for their own good," is a reason why many Indigenous communities and community members find themselves in their current situation, the argument goes.

"The irony, of course, that part of the disadvantage Indigenous offenders suffered was as a result of past policies and institutions that the state implemented as a self-declared trustee for Indigenous people."

Wisdom and judgment

In light of Ipeelee, the Saskatchewan Court of Appeal sentenced for a sexual assault in 2015 and a “near murder” in 2016.

Joseph Chanalquay was convicted of sexual assault for having sex with a woman who fell asleep at a party. Chanalquay was on a two-day drinking binge.

The trial judge “gave significant weight” to Gladue factors and imposed a sentence of two years-less-a-day. The Crown appealed.

Chanalquay’s parents abused alcohol and his father went to residential school. Chanalquay reported he was sexually assaulted by an aunt and someone on his home reserve. 

The Crown asked for a three-and-a-half to five year jail sentence, arguing such crimes often get a severe sentence. Chanalquay argued for a community-based sentence.

The trial judge, according to Justice Richards of the Court of Appeal, made an error by acknowledging a three-year jail term as a starting point, then lowering the sentence because of Gladue factors.

Richards wrote there were Gladue considerations with Chanalquay, but “other than the broad notion that alcohol consumption typically serves to lower inhibitions, it’s not clear how Mr. Chanalquay’s intoxication can be taken as saying anything particularly revealing about his culpability for sexual assault in this case.”

Richards also wrote Chanalquay contributed to his community, supported his family, and was gainfully employed, and that Chanalquay’s family or reserve wouldn’t be well-served if he went to jail.

Richards kept the two years-less-a-day jail sentence, and added 18 months probation aimed at restorative justice goals.

According to a 2016 Court of Appeal decision, Tyson Whitehead and cousins Lenny and Douglas Head beat Duril McKay to death at a party. McKay assaulted Whitehead’s aunt with a hammer, and the cousins beat McKay to death.

Whitehead had a Gladue report prepared. Whitehead’s parents had alcohol problems and he witnessed violence in the home. He was raised primarily by his older sister. FASD was likely in the family. 

He was enrolled in an upgrading program at the Learning Disabilities Association of Saskatchewan.

The trial judge gave Whitehead a nine-year sentence, the same sentence as Whitehead’s cousins. 

Whitehead appealed, arguing the trial judge was overly concerned with parity at the expense of proportionality.

Justice Caldwell of the Court of Appeal found the trial judge made an error. He found Whitehead’s circumstances lowered his culpability for the offence, but nine years was imposed anyway to match the sentence of his cousins, whose circumstances weren’t well-known.

Caldwell wanted a new sentence. Sentencing, however, can have strange qualities, and crafting a fit sentence “cannot always be completely reduced to words on a page.”

The rules in the Criminal Code don’t “always or readily lead to an objectively measurable reasoning process that accords with parliamentary, appellate court and Supreme Court directives on sentencing,” especially regarding Aboriginal offenders, Caldwell wrote. Judges must rely on wisdom and judgment.

The Gladue report provides context for behaviour, Caldwell wrote, but it didn’t excuse the killing.

Deterrence and denunciation were important sentencing objectives, the gravity of the offence was high.

The judge took into account relevant sentencing principles and Gladue considerations that reduced Whitehead’s culpability. Whitehead got an eight-year sentence.

Eight years jail was the fit sentence, the judge wrote, but it wasn’t a “discount.”

The cycle

“Would imprisonment effectively deter or denounce crime in a sense that would be significant to the offender and community, or are crime prevention and other goals better achieved through healing?”  -Gladue decision

Like at a trial, Crown and defence lawyers agree on some things and disagree with others.

Canadian sentencing law in light of Gladue, according to local lawyer Benedict Feist and Saskatchewan Head of Prosecutions Anthony Gerein, is coherent.

In addition to coherence, Gerein wrote in an email to the News-Optimist the Criminal Code sets out a “comprehensive and flexible” approach to sentencing.

Gerein wrote the Criminal Code doesn’t “call for or permit race-based discounts.”

“The law recognizes the situation of Aboriginal offenders not because of race, but because of colonialism, displacement, residential schools and other things suffered by those of Aboriginal descent.” Such things tend to reduce culpability, Gerein wrote.

Lawyer Eleanore Sunchild said “every Indigenous person who comes before the court has some kind of Gladue factor in their background, just being an Indigenous person in Canada creates that.”

Concern remains regarding the possibility of Aboriginal people getting lesser sentences, and what role race plays.

Professor John Borrows said in an online lecture he was “disturbed about making decisions on the basis on race.”

He said he understood the argument in relation to substantive equality, or “equality of outcome.”

“But if Aboriginal peoples who are in the system pick this up as … ‘I get this different treatment because of the race I’m a part of’  or if … [Crown or judges] look at them as this race has this special need that needs to be fixed, I’m all for getting rid of that kind of language as much as possible.”

Justifications for singling out Aboriginal people could take different forms, he said.

Reduced moral blameworthiness due to Gladue factors has emerged as a defence in courtrooms. Gerein wrote the argument isn’t being used too often and offenders “are entitled to raise the degree of culpability as an issue.”

Feist disagreed with Jeanette Gevikoglu’s characterization of reduced moral blameworthiness because of someone’s Indigenous identity.

“We look at moral blameworthiness all the time for a variety of different crimes,” Feist said. “It’s important to think about where people come from when they commit crimes.”

Sunchild and Feist criticized Saskatchewan courts’ handling of Gladue.

The court in Saskatchewan Sunchild said, hasn’t “always accepted submissions on Gladue in the full way that I think it should.”

“Many times I see people who come before the court with addictions issues, residential school issues” and other issues such as broken families, poverty and marginalization.

Feist said Gladue has been applied in a limited way in Saskatchewan, as opposed to in Toronto, which has Gladue courts and more dedicated Gladue report writers.

News stories often focus on the comparatively small amount of Gladue reports in Saskatchewan.

A Gladue report can detail an offender’s past and can depict how Gladue factors manifest in an offender’s life. They can contain information that mixes community information with individualized information. 

Rudin, in a 2015 presentation to the University of Saskatchewan College of Law, said Gladue reports are meant to make people who are before the court whole and “more than a collection of tragedies.”

Sunchild commended the reports of Christine Goodwin, whose reports make a plan for an offender to heal, which can involve addictions counselling, support groups, and insight into the individuals’ situation. Sunchild said many offenders don’t know about the history of Aboriginal people in Canada.

“The law does not require that Gladue-related information must be provided in a stand-alone ‘Gladue Report,’” Gerein wrote. Saskatchewan courts have been satisfied with pre-sentence reports.

In Tyson Whitehead’s case, his pre-sentence report and Gladue report, according to the judge contained “largely the same evidence.”

Marion Buller told the News-Optimist pre-sentence reports look at “crimogenic factors” and risks to reoffend.

Upon reading someone’s pre-sentence report and their Gladue report, Buller said, “you’re left wondering at the end of reading both documents whether they’re talking about the same person.”

In the current sentencing scheme, judges understanding Aboriginal offenders and their communities to find "fit sentences" for them has been a problem.

Many legal professionals are white and lead much different lives than Aboriginal offenders. Life in a town or city or on the farm can be much different than life on reserves.

“We’ve often written reports and judges will say, ‘I’ve never heard a sadder story,’” Jonathan Rudin said in his 2015 presentation. “And I think, ‘Wow, I got a bunch more at the office that make this one look real easy.’”

“If you didn’t know people lived that life, how are you able to sentence this person?”

Sunchild recommended decision makers “have an Indigenous experience,” but added non-Indignenous people can only understand up to a point.

In a recent ruling, Justice Danyliuk wrote pre-sentence reports can provide sufficient Gladue information, but if they don’t, the court has a duty to obtain such information.

Timing and costs are issues with Gladue reports. Dustin Sand recently requested a Gladue report. 

According to the R v Sand case, Rudin estimated the cost of such a report from Aboriginal Legal Services (of which he is program director) would cost $2,000.

Even if judges have the necessary information, Sunchild points out the more Gladue factors an offender can have, the higher they can be assessed as a risk to reoffend, which could increase chances of jail. More factors could have the opposite effect of what Gladue is supposed to achieve, she said.

In her experience, Sunchild said “people who’ve been designated dangerous offenders … have ample Gladue factors,” adding many have residential school history in their background and “usually some sort of sexual or physical abuse they haven’t dealt with.” 

The dangerous offender designation of Andy Peekeekoot made headlines.

Peekeekoot had a similar upbringing as other Aboriginal offenders. According to Peekeekoot, his parents abused alcohol and drugs, he was in foster care at age two, and was using alcohol and drugs at 10. He was physically and sexually abused in foster care, the decision says.

Peekeekoot was involved with the criminal justice system at a young age, spent most of his adult life in jail, and his criminal record included over 40 offences, half of them involving violence.

In 2005, a bar brawl took place in Shell Lake. Peekeekoot pulled a knife and punched a man, and Peekeekoot was convicted of two counts of assault with a weapon.

Judge Lloyd Deshaye, who worked in North Battleford for a number of years, designated Peekeekoot a dangerous offender in 2010.

Peekeekoot appealed. Gerein represented the Crown, while Rudin was an intervenor in the case, arguing against the dangerous offender designation.

The Saskatchewan Court of Appeal denied the appeal.

“There is less room for Gladue considerations to affect the outcome of a dangerous offender proceeding than is the case in conventional sentencing situations,” the Peekeekoot decision says.

2017 research by lawyer James Scott indicated Saskatchewan designated more people as dangerous offenders than Alberta or Manitoba, despite Saskatchewan’s lower population.

Based on research using the CanLii website, Scott found 41 Aboriginal people had been designated dangerous offenders in Saskatchewan since 1996.

The Crown has had a very good success rate in achieving long-term and dangerous offender status. Scott noted that since 1997 to the time of his published paper, out of 98 applications by the Crown, courts only completely dismissed two of them. 

When asked if dangerous offender applications were a strategy the Crown used to increase chances of protecting society, Saskatchewan public prosecutions responded in an email the Crown follows the rules.

“In certain circumstances the Criminal Code allows the Crown to make an application to have a person who has been convicted of a serious personal injury offence assessed. Such assessments are completed by a court-appointed expert. 

“If, after reviewing the assessment, and all the evidence, the Crown sees a reasonable likelihood of obtaining a dangerous or long-term offender designation, it may apply for such a designation.”

According to a 2010 Regina Leader-Post article by Barb Pacholik, Gerein said the court agreeing with the Crown’s applications meant the Crown was getting it right and choosing offenders for which a designation is likely and appropriate.

Dangerous offenders “are the people that Gladue talks about,” Sunchild said, adding the system should look at ways to heal offenders.

Some Aboriginal long-term offenders didn’t make headlines and some information in their cases is subject to publication bans. The cases detail harrowing stories of of unspeakable acts done unto them, and they carried out unspeakable acts on the public.

While long-term and dangerous offender designations are two of the harshest things the state can do to people, they occur “after the fact,” and often after irreparable damage to members of the public.

Healing and restorative justice can be effective with the right programs and the right community support, Sunchild said, but the matter comes down to funding. She said restorative justice programs have been cut and programs that can fully rehabilitate offenders “are few and far between.”

Some non-profits offer programming. Some programming is available once someone goes to jail, NDP MLA Nicole Sarauer told the News-Optimist, or once someone completes a jail sentence.

According to one Saskatchewan case, once in jail, a man avoided programming for sexual offenders in case other prisoners found out why he was in jail.

Feist said he thought funding appropriate healing programs is important, especially since the overwhelming majority of offenders are released from custody at some point in their lives.

To what extent the courts should be involved in social issues, Feist said “we can’t simply throw up our hands and say ‘this isn’t our responsibility and we’re just tending the downspout of a broken society.'”

Punishment, for Feist, should be more than punishment for punishment’s sake. He compared the cycle of repeated short jail terms to the popular definition of insanity.

Sunchild and Feist also support First Nations having more legal jurisdiction. Many reservations in the U.S. use tribal courts, in which reservations make legal decision on their own territory.

“Ultimately we need our own forms of justice, run by our own people, and to take the restoration and healing of our Indigenous nations into our own control,” Sunchild said.

The incarceration of Aboriginal people, Feist said, is “something we’re going to look back on with some shame, in the same way that people are looking back on the Sixties Scoop and stuff like that now.”

“History will not view this period of time favourably with regard to how Indigenous people are treated by the criminal law here on the prairies,” Feist said.

“Debate over how Gladue principles should be applied, and the courts’ resolution of the questions in issue, will further improve the justice system,” Gerein wrote.

Ongoing effort

gerein
Saskatchewan's Assistant Deputy Attorney General Anthony Gerein in a justice committee meeting. Gerein represented the Crown in important Saskatchewan cases regarding  Gladue. - From Saskatchewan Legislature website

“With an innovative lens, we will work to reduce the demand on our justice system and make sure we incarcerate those we are scared of and not those we are simply mad at.” -Christine Tell, Saskatchewan Minister of Corrections and Policing, 2016 

Reducing the number of Aboriginal people in jail is also subject to decisions by the provincial government.

The Ministry of Justice and Ministry of Corrections and Policing offer various services pertaining to Aboriginal offenders, including Aboriginal court workers, cultural coordinators in jails, and training for Crown prosecutors regarding the background factors. Ministry of Justice officials meet with elders approximately four times a year.

The province also runs a restorative justice initiative that resolves about 3,300 adult and youth criminal cases annually, according to an email from the above mentioned ministries. This includes community justice programs operated by First Nations and other organizations.

Some programs have seen reductions in provincial funding, including the Aboriginal court worker program, Aboriginal policing, and alternative measures programming.

Alternative measures is a Saskatchewan Ministry of Justice initiative designed to direct offenders from the possibility of jail. 

Someone charged with “what wouldn’t be deemed a very serious crime,” NDP MLA Nicole Sarauer told the News-Optimist, including minor assaults, mischief and cannabis possessions when it was illegal, could go through alternative measures rather than the court process.

Alternative measures might include perpetrators meeting with victims, community service, and a letter of apology.

The relevant ministries have a stake in reducing incarceration: jail is expensive for taxpayers.

Former Minister of Justice Gord Wyant said in a 2016 committee meeting alternative measures are good for the community and are cost-effective.

“Diversion is the most responsible way of dealing with people coming into the system if that’s at all possible,” Wyant said.

An explanation for some provincial cuts, according to officials in 2016, was that the federal government was expected to kick in money for the reduced provincial funding.

Another reason for the cuts at the time was due to a reduction in the number of referrals to alternative measures. Crown prosecutors make referrals to alternative measures programs.

Sarauer asked in a 2017 committee meeting about the Ministry of Justice’s plans regarding referrals.

Anecdotally, Sarauer said, she heard “newer [Crown prosecutors] are sometimes a little more reluctant to make referrals to alternative measures.”

As opposed to taking an approach in which every case goes to trial, Anthony Gerein said at the 2017 meeting, the Ministry asked prosecutors to make “sure that each case they look at goes only where it needs to go” to resolve matters in the most efficient time possible. 

Encouraging prosecutors toward alternative measures is an ongoing effort, Gerein said at the time.

Expanding restorative justice approaches and practices is in the Ministry of Justice’s 2019-20 plan. 

When asked if the government has a responsibility in reducing the amount of jailed Aboriginal people, the ministries responded in an email, “reconciliation requires our institutions support people who experience trauma, develop cultural competency, and be open to new ways of responding, such as restorative and therapeutic justice.”

Sarauer told the News-Optimist  “absolutely the province has a responsibility to fulfill the requirements set out in Gladue.”

20 years on

North Battleford could also become something of a Gladue capital.

Educating legal professionals and the public about Gladue is an ongoing effort.

Last year, former lawyer and current judge Michelle Brass gave a presentation in North Battleford for those interetsed in learning more about Gladue.

Earlier this year, Michael Seed of Sunchild Law hosted a panel at North Battleford Provincal Court about Gladue. The panel, attended by judges and lawyers, featured a short talk from Eleanore Sunchild and a former residential school student who experienced sexual abuse.

Murray Pelletier, who represented clients with Gladue factors in North Battleford, was recently appointed a North Battleford provincial court judge.

Saskatoon lawyer Kellie Wuttunee, who started practicing law in 2018, said of the criminal cases she’s dealt with, North Battleford judges have been receptive to Gladue

“So far it’s a slow change,” Wuttunee said, “but it’s a change that’s coming.”

 

 

Additional notes on sentencing

 

fit sentence
A lot more factors go into sentencing than this diagram suggests. - Josh Greschner

“It’s really, really hard to understand everything … because my grandparents and my mother went to residential school, and all her siblings, and there was a lot of dysfunction that came from that, but you don’t see me going (and committing crime).” -April Baker, in a 2019 Yukon News story by Jackie Hong

Judges don’t look up a sentence for a crime like they would look at the price of a steak sandwich on a menu at Humpty’s. 

Sentencing in Canada is individualized and dependent on circumstances.

Ipeelee tied background factors to culpability, or responsibility. Culpability is found in the fundamental principle of sentencing: “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

Other sentencing considerations include parity (where courts look at previous sentences for similar crimes), deterrence, denunciation, and rehabilitation. 

Even more factors go into sentencing, such as aggravating and mitigating circumstances.

Aggravating factors include abusing one’s spouse or someone under 18, involvement with criminal organizations, terrorism or committing crime while on a conditional sentence order or parole.

Mitigating factors include lack of a criminal record, young age and pleading guilty. 

Judges and lawyers say sentences aren’t “race-based”: rather, sentences are affected by background factors. Factors affecting culpability apply to everybody. Gladue factors including residential school experiences and foster care often affect Aboriginal offenders.

Judges and lawyers say sentencing law doesn’t offer “discounts” either. Judges are supposed to find the fit sentence for the particular person for the particular crime, not to find a sentence, then reduce it because of Gladue (as mentioned in the 2015 case Chanalquay), or to compare to speculative hypothetical sentences for speculative hypothetical people. 

Gladue factors can work to reduce a sentence. But isolating Gladue factors in the soup of sentencing factors as being the necessary cause of a sentence decrease isn’t always easy.

During sentencing, reporters and news readers must pay attention to the judge’s comments, reasoning and explanation of the complicated sentencing scheme, rather than just the penalty.

If crimes are too serious, even if Gladue applies, the seriousness of the crime could make deterrence and public protection the main concerns, and Aboriginal offenders could get a substantial jail sentence. 

A number of crimes might not have what the court considers to be high gravity, and someone might or might not go to jail.

Sometimes the public is outraged at what they consider a lenient sentence, and they blame Gladue

But it could be that anybody committing such a crime would receive a similar sentence. In these cases, it might be more accurate to blame Canadian sentences for the crime in question rather than Gladue.

Gladue is also a lightning rod for all the things many members of the public think is wrong with Canada’s liberal sentencing law.

But Gladue is one decision in a process dating at least back to Pierre Trudeau in 1982. Retributivists are also likely to disagree with “equality of outcome.”

One role of Gladue reports is to show how Gladue factors affect decision-making. It’s one thing to list alcoholism in someone’s family. It’s another in describing home life, you tell a specific story about trying to get your father to stop beating on your mother, and your father breaks down crying, saying he’s trying to stop, but he says it’s complicated for him.

Gladue reports can show how what was normal for the offender might not be normal for anybody else in the court room, or people reading the newspaper.

A retributivist might question if such matters are relevant to sentencing. An offender committed a crime, and jail, the argument goes, is morally justified.

The title of this article is taken from Benedict Feist's paper Gladue in Saskatchewan: Fifteen Years On

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