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377 Understanding Gladue From the Perspective of Indigenous People
Understanding Gladue From the Perspective of Indigenous People
Author and Context
Author: Carmela Murdocca (2021)
Source: Criminal Law Quarterly, Thomson Reuters Canada Limited
Focus: Examines the impact and functionality of the Gladue process for Indigenous individuals within the Canadian criminal justice system.
Introduction
Personal anecdote from an Indigenous man with extensive legal troubles who was unaware of the Gladue process despite over seventy convictions.
Raises questions about systemic racism and challenges within the criminal justice system faced by Indigenous people.
Discusses the implications of the Supreme Court decision on Gladue and its significance in the legal system since 1999.
Key Issues with the Gladue Process
Ongoing challenges in effectively applying the Gladue principle, particularly in cases involving serious offenses or mandatory minimum sentences.
Tension between mandatory sentencing laws (emphasizing punishment) and Gladue's focus on rehabilitation and restoration.
Misinterpretations by judges concerning the correlation between Indigenous identity and criminal behavior.
Inconsistent application and understanding of Indigenous justice programs alongside the criminal justice framework.
Academic Focus
The literature largely centers on institutional challenges, the over-incarceration of Indigenous peoples, connections to restorative justice, and systemic racism issues.
Little emphasis on Indigenous perspectives regarding their experiences with the Gladue process.
Racism and Systemic Violence
Indigenous individuals experience state violence through the criminal justice system, reflecting ongoing colonial impacts.
Settler colonialism as a structural framework that affects Indigenous lives today; the legacy of colonialism is intimately tied to current criminality levels among Indigenous peoples.
The Canadian criminal justice system disproportionately incarcerates Indigenous populations, notably Indigenous women.
Structural violence includes community breakdown and the ongoing struggle for sovereignty and land rights.
Research Objective
To shed light on the perspectives and experiences of Indigenous individuals involved in the Gladue process to improve community-based legal practices.
Initial consultations with Gladue report writers helped frame the research focus.
Research Findings
Barriers to Accessing Gladue
A significant number of participants were unaware of the Gladue process until directly involved in their legal cases.
Misinformation from legal representatives about the eligibility and potential impacts of a Gladue report was common.
Support from Gladue Report Writers
Most participants felt supported by their Gladue writers, describing positive rapport that fostered a sense of comfort and motivation for healing.
Importance of connection to community resources through Gladue report writers.
Gladue as an Educational Tool
The Gladue process served as a mechanism for participants to learn about their histories and understand their experiences in a broader socio-historical context.
Emotional and Psychological Impact
The process can be retraumatizing due to past traumas being discussed, necessitating follow-up support and counseling.
Some participants reported emotional challenges post-interview due to the content discussed, with inadequate institutional support noted.
Confidentiality Concerns
Participants expressed a lack of clarity regarding the confidentiality of information shared during Gladue interviews.
Participants feared potential breaches of confidentiality due to the presence of prison guards during interviews.
Perceived Effectiveness of Gladue
Perceptions of the effectiveness of the Gladue process varied; those with realistic expectations were more likely to find it beneficial than those with misconceptions.
Many noted a disconnect between the positive experience with Gladue writers and the negative experiences within the court system.
Conclusion
Limited understanding persists regarding the practical impacts and community perceptions of the Gladue process.
Recommendations for increased education on Gladue for both community members and legal professionals, emphasizing the need for trauma-informed approaches.
A call for systemic changes to ensure Gladue can effectively contribute to addressing the over-incarceration and systemic racism faced by Indigenous peoples in Canada.
Helpful Aspects of Gladue Sentencing for Indigenous Peoples:
Participants reported feeling supported by Gladue report writers, fostering a sense of comfort and motivation for healing.
The Gladue process served as an educational tool, allowing individuals to learn about their histories and understand their experiences within a broader socio-historical context.
Connection to community resources through Gladue writers was emphasized as a positive aspect.
Unhelpful Aspects of Gladue Sentencing for Indigenous Peoples:
Many participants were unaware of the Gladue process until directly involved in legal cases, indicating a lack of community knowledge.
Misinformation from legal representatives about eligibility and impacts of Gladue reports was common, leading to confusion and mistrust.
Emotional retriggering due to discussions of past traumas and inadequate institutional support for post-interview challenges.
Perception issues regarding the effectiveness of Gladue, with varying views depending on expectations.
Best Way Forward (as suggested by Murdocca):
Increased education on Gladue for community members and legal professionals is recommended, focusing on trauma-informed approaches.
Systemic changes are necessary to allow Gladue to effectively contribute to addressing over-incarceration and systemic racism faced by Indigenous peoples.
Three Cases Central to Understanding Gladue Sentencing:
R v. Gladue (1999): This landmark case established the necessity for Gladue reports for Indigenous offenders within the Canadian criminal justice system. The Supreme Court ruled that judges must take into account the unique circumstances of Indigenous individuals when sentencing, recognizing the historical context and systemic issues faced by these communities.
R v. Ipeelee (2012): This case further clarified the application of Gladue principles, emphasizing the necessity for courts to consider systemic factors affecting Indigenous individuals during sentencing. It reinforced the notion that the over-representation of Indigenous peoples in the criminal justice system must be addressed through appropriate consideration of their specific social and historical circumstances.
R v. McHugh (2008): This case explored the responsibilities of the courts in applying the Gladue framework during sentencing. The court examined how to effectively incorporate the principles established in Gladue and ensure that the unique backgrounds of Indigenous offenders are taken into account when determining appropriate sentences.
Imagining a Schematic of the Sentencing Process: While I cannot draw a schematic, the following steps outline how the sentencing process may work under Gladue:
Arrest and Charges - An Indigenous individual is charged with an offense.
Awareness of Gladue - The individual or legal representative learns about the option of Gladue reports.
Preparation of Gladue Report - A Gladue writer conducts interviews, gathers history and community context, and prepares the report.
Sentencing Hearing - During the hearing, the Gladue report is presented, providing context to the court.
Judicial Decision - The judge considers the Gladue principles and the report, balancing rehabilitation with legal obligations.
Post-Sentencing Support - Follow-up support is needed to address emotional and psychological impacts post-sentencing.
Understanding Racism and Criminalization of Indigenous Peoples
The interconnectedness of racism, violence, and the criminalization of Indigenous peoples in Canada is complex and rooted in ongoing colonialism.
Murdocca emphasizes that the criminal justice system (CJS) perpetuates colonial violence, noting, "For Indigenous peoples, the structures, systems, policies, practices and procedures of the criminal justice system is a form of ongoing colonial and gendered racial state violence."
The origins of the police force in a white settler colonial context contribute to over-policing Indigenous communities and their overrepresentation in the CJS.
Limitations of CJS Reform
Reform initiatives in the CJS, such as Gladue, are ineffective in addressing the larger issues of colonialism, cultural genocide, and Indigenous land rights.
Despite its intentions, then application of Gladue has failed to prevent the incarceration and surveillance of Indigenous peoples, illustrating the discrepancy between legal intentions (law on the books) and actual practices (law in action).
Relevantly, the section 718.2(e) provisions, which have been discussed previously, also bear significance in the context of Gladue.
Barriers in Gladue Implementation
Implementation barriers exist regarding the Gladue process:
Lack of Knowledge: Many individuals are unaware of the Gladue process until provided with a report, often depending on guidance from Aboriginal Legal Services, family, friends, or Elders for support.
Legal Representation: Attorneys often lack the necessary understanding of the Gladue process, leading to inadequate representation.
Resource Constraints: The limited resources hinder the application of various reforms (e.g., sentencing circles), leading to minimal enforcement of these reforms.
Caseload Challenges for Report Writers
Although some participants recognized the helpfulness of Gladue report writers, these writers frequently face overwhelming caseloads, which restricts their availability in court settings.
The inequality of punishment outcomes is influenced by individuals' access to necessary resources and their capacity to leverage those resources effectively (e.g., through plea bargaining or non-custodial alternatives).
Institutional Support Shortcomings
Systematic support deficiencies manifest in various ways:
Incarceration Conditions: Individuals drafting Gladue reports may experience incarceration and rigorous surveillance, detrimental to providing truthful and comprehensive information required for their reports.
This situation underscores the systemic racism inherent within the correctional institutions.
Effectiveness and Misconceptions of Gladue
The impact of Gladue on sentencing exhibits mixed results:
In certain cases, it has led to reduced sentences (shorter or conditional sentences); however, some believe it functions as a "get out of jail free card."
Critics argue that Gladue does not alter the fundamental nature of punishment, which continues to reflect a Eurocentric and colonial framework of punitive incarceration.
The judicial system's failure to apply relevant contextual or mitigating factors, particularly those relating to Indigenous norms of rehabilitation, remains problematic.
Previous discussions on the culture of control emphasize the persistent systemic issues, including the rationale for maintaining prisons despite their ineffectiveness and ongoing harms of practices such as segregation.
