Band-Aid solution to justice

Winnipeg has the largest Indigenous population across Canada with 38,700 First Nations, 52,130 Métis and 315 Inuit people. Yet the province of Manitoba lacks both Gladue reports and Gladue courts to represent this growing population.

A Gladue court deals with cases of Aboriginal people, both status and non-status, who have been charged with a criminal offence by recommending sentences that recognize Aboriginal traditions and their historical past.

The Canadian Bar Association says judges will apply Gladue in all situations regardless of the severity of the crime, including when making decisions about the length of the jail sentence.

“I suppose there’s a concept of Gladue rights in the decision itself. The problem is, although it’s a legal requirement, very often it’s been stepped on by various governments deciding not to implement it,” Dr. David Milward, an assistant professor specializing in criminal law and Aboriginal justice at the University of Manitoba, says.

He explains that the Gladue principle means that, in sentencing, Canadian forces must take into account all necessary information regarding the situation and background of the accused. This includes residential schools, abuse within the family household and racism.

“Standard pre-sentence reports (that) try to comply with Gladue, in my opinion, don’t do a very good job, because they don’t go out and interview people in the community and as many people in the community as they should,” he says.

He adds that there is a risk section at the end of the Gladue report that claims Gladue factors advocate for more non-jail-type sentences, but the probation services take Gladue factors into account to argue for more severe punishment during sentencing.

James Favel, the executive director of the Bear Clan Patrol, finds that in his own personal experience with the Gladue reports, they only serve as a Band-Aid solution to the real issues that plague Indigenous communities.

“It’s a Band-Aid. It’s not a solution, so we need to really get to the bottom of our problems, such as the incarceration of Indigenous people. You know, we’re treating a presence of residential school, and (Gladue reports as a Band-Aid solution) is just another way of destroying our family,” he says.

“If I’m born Aboriginal on the prairies, I am six times more likely to be arrested, to be convicted of an offence, and that is not equality,” a member of the University of Manitoba Aboriginal Student’s Association (UMASA), says.

This student, who wished to remain anonymous due to involvement with the criminal justice system, says that the Liberal federal government has policies aimed to revitalize Indigenous languages, which are fine, but do not actually touch the issues of systemic racism, the lack of mental health care for Indigenous people in the criminal justice system and the need to reform Child and Family Services.

He notes the lack of experiential trauma in the Canadian education system.

“That hurt, that intergenerational trauma is missing from our schools. It’s missing from the law system, because it’s being barred from its criminal record,” the U of M student says.

Milward says Gladue courts would be helpful in Manitoba, but it would be better if the province had Gladue reports done outside of probation services.

He mentions the Onashowewin Justice Circle did a few reports for free just to show that they could be done, but some felt that they were going beyond their mandate and were asked to stop.

The U of M student agrees that the Gladue reports are not conducted properly, as probation officers, corrections officers and prosecution are conducting the reports and may have already made assumptions about the individual based on seeing other similar cases before understanding the reason for their specific offence.

Milward agrees with Favel, saying Gladue reports do some good for some people, but they are essentially a half-measure, because they are not enough to address the issues of poverty, intergenerational trauma and racism.

“I don’t understand why there’s such pushback when the Indigenous community wants equality … I didn’t have a fighting chance. I went into CFS (Child and Family Services) when I was very young, and, when I was a teenager, I immediately started having problems with the law,” the U of M student says.

“I wasn’t taught how to live in the real world. I wasn’t afforded the same type of resources that everyone else is - to get help for addiction and mental health, so I was just introduced straight into the correction system, and it was nearly impossible to get out of,” he says.

He also says that despite being able to go to university, he will never be able to be equal. He mentions how his grandmother was in the residential school system and died at 30 years old. He and his mother were taken in the 60s Scoop.

Both Favel and the student from U of M say there is still an issue with education in that intergenerational racism is intertwined within the education system, which affects the lives of Indigenous people.

Favel explains when he was a truck driver, his employers were so racist that they did not trust him to become an owner in the company, because he was Indigenous.

“Here in the U of M, I was auditing an Aboriginal justice system class last year, and it was being taught by a jail guard from Headingley Correctional Centre. What she said was that the Gladue principle was used to take into account all the intergenerational trauma, and she lied to the university system. I was classed in this system, and that isn’t used,” the U of M student says.

Different members of the Aboriginal community are not only envisioning the future but trying to make it a reality.

“We’ve been bringing police officers out here in the field with us (the Bear Clan Patrol), so they can experience the field with a different lens, so that they know exactly what’s going on in our community, and that they feel comfortable with our community members,” Favel says.

Published in Volume 72, Number 22 of The Uniter (March 22, 2018)

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