But the fact of the matter is this: It’s the law of the land that aboriginal offenders are to receive special consideration when being sentenced.
(Note, please, the intentional use of the word *consideration* — which, loosely, means to ‘think about’ in this context, not to confer a benefit, reward, or as Gladue is often dumbed down to: ‘A race-based discount.’
But I won’t get into all that today. I just finally in the last few weeks came across a Manitoba judge who explains what this all means so clearly and concisely — in 156 words no less — that I wanted to share it as a reference to readers, other interested parties and to myself for the future.
In the last two weeks, I’ve heard provincial court Judge Dale Schille use variants of the same explanation when giving reasons on sentencing.
Part of what Schille says it is a direct lift from the recent fundamental Supreme Court decision in R v. Ipeelee, which goes exactly like this:
“Canadian criminal law is based on the premise that criminal liability only follows from voluntary conduct. Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options for positive development. While this rarely — if ever — attains a level where one could properly say that their actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moral culpability.”
It appears from this point, the judge puts his own stamp on the issue:
“It is clear from that articulation that 718.2(e) seeks to recognize that there exists residual effects stemming from the historical mistreatment of the aboriginal population. The reality is that that treatment has disadvantaged aboriginal people in a number of ways including: decreased levels of education, lessened opportunities for employment, higher frequencies of violence and substance abuse when compared to the non-aboriginal population. All of these factors impact or detract from the moral blameworthiness of the aboriginal offender.”
When you stop to think about it, it explains a lot of things quite nicely, and in short order.
A single sentence buried deep in a lengthy written decision from Manitoba’s Court of Appeal contains the words many in the city’s legal community — including, no doubt, many judges — have been eagerly waiting to hear from our top court.
They’re worth reading a few times over to soak in their gravity:
“There is presently in this province either a concerning disregard or a systemic impossibility to provide what is required for judges to comply with the dictates of the Supreme Court.”
Justice Michel Monnin wrote the above in the court’s unanimous decision to slash in half the 10-year-long sentence Queen’s Bench Justice Shane Perlmutter handed to a 23-year-old rapist who sexually assaulted an unconscious woman in her northern Manitoba home in 2010.
Monnin’s cutting words are aimed squarely at Manitoba Corrections, the provincial justice agency responsible for preparing pre-sentencing/Gladue reports for judges, a task its been doing for many years now.
Gladue reports are written to help inform judges about the particular circumstances of individual aboriginal offenders. They look at the community from which an aboriginal person hails from, their family history and what factors may have led them into contact with the criminal justice system.
The overall intent of the reports is to help judges satisfy their legal requirement (enshrined in s. 718.2(e) of the Criminal Code) to consider “all available sanctions other than imprisonment that are reasonable in the circumstances.”
These “should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders,” the law says.
The intent of the Criminal Code provision — put in place in the 90s and often called the “Gladue” section — was to try and address the vast over-representation of aboriginal offenders in Canada’s jails. (Article spelling this out is here)
Roughly 74 per cent of adult inmates in Manitoba jails in 2011 were aboriginal, according to the latest Stats Can numbers.
A shameful total that’s climbed in each of the the last five years despite the intent of the law of the land.
The wake of Ipeelee
Earlier this year, a shockwave went through Manitoba’s courts, prompted by the Supreme Court’s decision in Ipeelee.
Manitoba judges started loudly demanding Gladue-based information, and demanding proper waivers if the offender didn’t wish to pursue a report (they take weeks and weeks to prepare).
The high court in Ottawa had basically issued an edict: Criminal court judges of all stripes weren’t doing their jobs to look long and hard at Gladue factors each and every time they sentence an aboriginal offender. If they didn’t start doing so, the top court implied, judges could expect to start seeing appellate courts retooling their sentences.
That’s what happened in the above rape case.
It is apparent from Monnin’s ruling that the sentencing judge got a poorly/hastily written Gladue report from Manitoba Corrections that appeared to contain ‘cut and pasted’ material from other reports — hardly the individualized effort the law requires. The law, the Supreme Court says, is not to provide a “race-based discount” on sentencing, but to ensure the sentences handed out to aboriginal offenders were made in light of the necessary context.
“The judge had at his disposal a pre-sentence report that also purported to address the Gladue factors that a judge must consider when imposing a sentence on a person of aboriginal descent,” Monnin says.
“I say purported, because the only difference that I can see between the report that was presented to the judge and a commonly-prepared pre-sentence report was that it contained a short history of the accused’s home community and the general loss of culture and identity that has afflicted aboriginal communities generally. That portion of the report is a near mirror image of a report that was submitted [in another case.] …
… Furthermore, although the report states that it “will pay particular attention to the unique circumstances of the aforementioned aboriginal individual,” I remain hard-pressed to understand how it does so, or how it could have been helpful to the judge, or any other judge for that matter, to discharge his obligation to consider the Gladue principles in crafting an appropriate sentence of this accused.
The report, without wanting to criticize the individual who prepared it, but rather the system that permits it, reflects the problems raised by [Provincial Court Judge Fed Sandhu in an unrelated case where Sandhu talks of the lack of public confidence and respect for Gladue due to a lack of community-based and other resources to really put some teeth into the law.]
I mentioned above a “shockwave” that went through the courts at the time Ipeelee came down. It was apparent.
The net affect of the renewed focus on Gladue was for lawyers to start requesting more Gladue reports from Corrections.
My understanding of what happened is they were caught totally off guard and are still trying to keep up with the increased Gladue workload — including some totally novel requests from certain judges. [Side note, the report took weeks to prepare, came back and the judge said he didn’t find it helpful at all in a bail setting.]
The pressure on Corrections to produce Gladue materials has sparked complaints from many lawyers who claim probation officers/report writers are simply doing “cut and paste” jobs [as referenced by Justice Monnin above] that may give the impression Gladue considerations are being given attention, but really, they’re not, in many — but not all — circumstances.
Then, quietly, a quandary developed when an NGO stepped in to fill the void.
A private aboriginal restorative justice agency in Winnipeg, Onashowewin, began writing full and comprehensive Gladue reports for offenders — reports that are repeatedly praised by judges for how informative and well-prepared they are.
Defence lawyers hipped to them in droves, many times forgoing the Corrections reports entirely.
I can’t tell you how many times the agency’s reports were lauded by judges. It’s clear from reading them that a lot of time and effort went into them.
Corrections, I’m told, got in a snit partly because the Onashowewin reports didn’t include any risk-analysis of the offender, as their mixed Gladue/pre-sentence reports do. Fair point.
Corrections won’t just write up a Gladue report without an accompanying pre-sentence report to go along with it.
The end result: Onashowewin, which receives government funding, recently introduced a new policy of charging $500 per offender for their Gladue reports.
Now, Legal Aid Manitoba is apparently balking at the notion of funding the private reports, a veteran defence lawyer said today.
Most, if not all, of the reports are written for indigent offenders depending on public representation to resolve their cases.
So I ask you — one way or another — is the system set up to truly honour the law of the land?
Today, the Court of Appeal said, ‘no, it’s not.’
And until that starts to happen, expect to see more sentences overturned.
This is the first in a series of sporadic reports about criminally-involved people who habitually inhabit and wander downtown Winnipeg.
There’s a lot more to them and their lives than I’d bet most care to realize.
These are true stories.
Downtown Winnipeg tales #1: H. M. Jr., 53
There’s something so incredibly sad and yet telling about Mr. M. and his circumstances — also about the hard and lonely realities of his adult life, a good chunk of which has been spent on the streets of our humble downtown.
M. grew up in what he describes as a “good,” religious and abuse-free home on Fisher River First Nation.
He hasn’t been back there in 20 years.
His dad died 40 years ago of ALS.
He suspects his mom has died of old age but can’t be sure. He hasn’t seen her in two years.
He knows his three brothers and one sister live in Winnipeg, but says they have their own lives. He says he speaks to them “when [he] sees them downtown,” as he believes this is where they work.
He asks for nothing from them and they of him.
M. survived a number of years at a Brandon-area residential school as a young man.
It was an experience he describes as “difficult” — one where instructors beat him frequently when they got the chance, he says.
M.’s parents also attended the same school and they were also “punished” and had their “language forced out of them,” he told a social worker.
Despite these considerable hurdles, M. graduated high school and attended two years of Arts at the University of Manitoba.
He’s employable, with a decent track record of steady work, and has in the past been a willing and co-operative participant in counselling and job-placement programming provided by government agencies.
Up until the other day, he had virtually no criminal record except for a theft under $5,000 conviction from the early 90s.
Despite these positives (and a large amount of government intervention) stability and security remain elusive for M. — who has no kids or wife to rely on.
(He has, however, been engaged twice but the relationships ended mutually)
Here’s how M. described an average day in his life to a probation officer:
“The client was asked to describe his typical day. He responded by stating he usually does any of the following: ‘Go downtown, go try to find work, hang around downtown.'”
Soak that in. Drink up its sadness: There’s nothing else M. — nearing 60 years old with half a university degree and a good amount of job and life experience — can identify to do with himself other than hang around downtown Winnipeg.
It gets even more sad when you consider why he hasn’t been seen in the core over the winter.
Arson was suicide attempt
M. is currently a guest of the province for at least the next few weeks as he serves out a roughly year-long jail sentence for arson, disregard life.
He’s been in custody since last fall when he torched the curtains of his Alexander Avenue rooming house suite in what he told cops was a suicide attempt.
Four people, including M. himself, were injured in what ended up being a fairly dramatic blaze.
The elderly caretaker of the ramshackle home was one of two people who lept from an upper-floor window to safety.
M. told his probation officer he was “tired of living” and didn’t think anyone else living in the house was there at the time he set the fire. He changed his mind and fled the burning house.
It was his second suicide attempt in five years. The earlier was thwarted by a friend who found him and called for an ambulance.
M. wasn’t interested in talking to a probation officer about those friends, however.
He did say he has about five of them, who he sees about twice a week when he bumps into them while wandering downtown.
“The sole activity they undertake is to walk around downtown,” the PO notes.
Sometimes, however, they go and drink at somebody’s home.
It’s not explicitly stated what happened to M. in his 30s, but it appears the bottle got a good grip on him at that time and hasn’t really let go since.
He started drinking at 18, he says. More frequently in his 20s.
A few years later, booze became a major issue and he started finding himself repeatedly taken to the drunk tank under the provisions of the Intoxicated Persons Detention Act to dry out.
He has taken at least some steps to deal with his “significant” alcohol problem.
What’s worse is that M.’s mental health appears to be a growing concern as he ages.
In February, he was assessed as a “high” risk to reoffend.
How that might happen, that’s not explicitly stated.
How is the Gladue Court Different from a Regular Court?
The Gladue court is of more benefit to an Aboriginal offender simply because a judge must consider two things:
• The unique system or background factors which may have played a role in bringing the offender before the court, and
• The types of sentencing procedures and sanctions that may be appropriate in the circumstances to the offender due to his or her Aboriginal heritage, including the examination of alternative justice processes such as Restorative Justice.
… It is a fact that Aboriginal offenders respond better to a Restorative Justice model which advocates sharing, reparation and a holistic approach rather than the discriminations, adversarial stance and incarceration that is often synonymous with the Criminal Justice system.
What’s interesting to note, as well, is that despite the existence of such courts, it’s appeared to do little to address the reason they were established: gross over-representation. As one of Manitoba’s top judges suggested to The Freep the other day, maybe it’s putting the cart before the horse.
“Do we need to create a specialized Gladue court in Manitoba? We may need to do that here. But it’s not going to be easy,” Chief Judge Ken Champagne of Manitoba’s Provincial Court said.
“Poverty is the biggest issue for aboriginal people in Manitoba. Is a Gladue court going to be able to address that? You also need a lot of resources at the front end: in education, training and social services,” Champagne said.
On another note, it’s refreshing to see a judge saying something in a public forum. In my opinion, too often they’re silent on issues the public cares about.
2] Add to the above this story of a murder trial postponed because of underrepresentation of aboriginal people on the jury. Strikes me that this is a problem here in Manitoba too. Take for example the jury trial of a teen Indian Posse gangster who went on a shooting spree at a Weston-area home, killing three. If I remember correctly, there wasn’t one aboriginal person on his jury either.
3] Couple of major criminal cases went forward with resolutions this week. First, the woman who abducted a baby from a home and slammed it into a sidewalk pleaded guilty. And yes, a Gladue report has been ordered to examine the circumstances of Nikita Eaglestick’s background. Second, a boy who brutally murdered a kid he was babysitting on Little Grand Rapids First Nation was sentenced to the maximum allowable under the YCJA.
Questioned by police, the accused had little explanation for the attack, except to say “he wanted to try it out” and that he “felt nothing” after Tristian was dead.
The accused hauled water from a nearby lake to clean up the murder scene.
“For all the blood-letting that happened … (there was) very little forensic evidence,” Sharma said.
According to a pre-sentence report, the accused told a probation officer “he thought he was going to be able to cover up his crime” and said he “ran out of time and did not do a good enough cleanup job.”
Equally as interesting is the fact the Crown says it was forced to accept a plea deal (and therefore not be able to sentence this guy as an adult) because the investigating officers violated the accused’s rights under youth justice laws by not following proper procedure for young offenders.
I remember a couple of days after the victim was killed I bumped into a Correctional Officer who said the accused had just been brought into Winnipeg. The guard admitted being appalled at what the allegations were against him and indicated the now-convicted murderer was likely insane. I guess now, more than two years later, we have some indication of how true that is.
5]Scared Straight? Teens conducting a break-in and subsequent car theft enter a home where a man was apparently already dead. Maybe they saw him and bolted, maybe they didn’t. A truly bizarre set of circumstances.
6] The more I read over the U.S. court documents regarding the mysterious disappearance of two Winnipeg university students accused of terrorism-related offences, the more it seems like the plot of a spy novel. The most interesting stuff I’ve come across so far are the stories relating to an already arrested co-accused, who the FBI claims travelled to Pakistan and received military weapons and tactical training for jihad from a man named in documents as Yusef. In an unsealed indictment against Ferid Imam, one of the missing students, U.S. prosecutors say he went by the alias Yousef. Lawyers for the arrested man are working to have a long statement he gave to the FBI in January 2010 tossed out on the belief he was represented by counsel and police had no right to question him. No matter what, it’s going to be an interesting case — but one wonders if Imam or Yar will ever be apprehended.
One excerpt from the FBI’s report on a post-arrest interview with the arrested guy [not Imam]:
[He] and the others walked into the hotel, which was about fifteen minutes from the house, and checked themselves in. Again, [he] was asked not to speak to anyone as his English would get them into trouble.
[he] believes this hotel either belonged to, or was associated with the Taliban. [He and two others] were provided with a room that contained only two beds but an additional one was brought in for them. Their room had its own bathroom for their use. There were other men in the twenties who were also staying at this same hotel, but very little talking amongst the men took place.
There was a computer set up in a common area of this hotel where videos of attacks on U.S. troops, different suicide and martyrdom missions, and bombings were shown, During the night, [he and the two others] engaged in an argument. [He] was angry [at them] because they mostly spoke in Pashtun and they did not keep him informed of what was going on, Additionally, they felt as though [he] was a burden on them as his light skin made him stand out and he did not speak the local language. During the night, the three argued loudly in English and [he] punched a wall in anger …
The next day, the group left … and drove for about two to three hours until they arrived at a group of houses. [He] was brought to a house that was owned by a Pashtun man … [He] and the others were introduced to the man, in English as Yusef [ph] … [He] stayed at Yusef’s house for about two weeks, During these two weeks, Yusef provided [him] with both religious and military weapons training. With the assistance of an English speaking Arab, Yusef also provided religious instructions on the rewards of fighting and dying for jihad.
Yusef spoke Pashtu, Arabic and English with a clean American accent. Yusef was approximately 20 years old and was of African descent. In spite of his American accented English, [he] did not know whether Yusef had lived in the west.
A typical day consisted of waking up early to eat since it was Ramadan, praying and receiving classroom-type weapons training. [He] and the others did not spend too much time outdoors in the daytime as there was the fear of a missile strike coming from the unmanned drones that were overhead. These drones could be heard and sometimes seen flying in the skies overhead. They would take shifts throughout the night were each was responsible for guarding the house against an attack.
[He] was trained on the AK-47, the PK machine gun — which [he] referred to as the “peeka” and the rocket propelled grenade launcher. … this weapons training culminated with one day where [he] was brought up in to the mountainous area to fire the weapons. [He] shot thirty rounds from an AK-47 and one rocket propelled grenade at a target on the mountainside. [He] never shot the weapons at U.S. troops, abandoned vehicles, or anything other than the side of the mountain.
7] Finally, it looks as if the USA’s decision to drop escape charges against Ian Jackson MacDonald were tactical in nature. Just a few days after they did so, the once burly MacDonald was wheeled onto a jet in the company of RCMP officers and returned to Manitoba to face drug-conspiracy charges. What’s interesting to me about this is that the Canadian warrant for MacDonald was never wiped off the system as part of “the normal justice process” that takes place that the Sun revealed just a few weeks back [note – at least one of the quashed warrants was from the 70s].
Why not? I dunno. The warrant’s a dusty 30 years old, and it’s a non-violent offence. MacDonald, by many accounts, is now a sick old man. What’s the point of prosecuting him?