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.