Section 718.2 reads: “A court that imposes a sentence shall also take into consideration the following principles: (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders” (emphasis added). This view was also held by the Supreme Court in R. v. Gladue.Footnote 25 However, to the extent that unequal denial of bail and pre-trial detention are realities, at least in some jurisdictions, the causes of the problems lie in underlying practices. These data describe and measure the flow of persons through correctional services over time. The assumption behind an over-representation statistics is that functional TFBSs will be over-represented in the set of co-regulated genes as compared to a background set (by the term co-regulated we refer to a set of genes hypothesized to be co-regulated either based on expression data or some other information). Europe PMC is an archive of life sciences journal literature. The assumption is sometimes made that because a court predominantly processes cases involving Indigenous persons, it is thus a Gladue Court. In comparison, the rates for non-Indigenous c… In 1996, the sentencing provisions of the Criminal Code were significantly amended. The Supreme Court in Gladue recognized the importance of such programs and also recommended that, if specifically Indigenous programs are not available, the court should attempt to refer the offender to any program as long as it is restorative in nature. On representation, the finding by the Auditor General is that there is overrepresentation compared to other countries. Perhaps the difficulty lies in the intersection of two realities: the enormous scope of the problem and the limitations of the justice system in coming to grips with the fundamental issues underlying Indigenous overrepresentation. As Maurutto and Hannah-Moffat state, Incarceration statistics and relevant case law appear to confirm the statements made by Maurutto and Hannah-Moffat. Second, the absence of a Gladue Report, written by a trained Gladue writer, denies a judge the opportunity to fully understand the individual offender’s background and the life factors that led them to commit a crime. Justice Cohen ran her court with a view to avoiding sentenced incarceration and pre-trial detention for youth. Those who favour granting bail, if reasonable, tend to agree that Gladue should apply to all Indigenous offenders because incarceration, whether as part of a sentence or pre-trial, is still incarceration and contradicts Gladue. Statistics is a type of mathematical analysis representing quantifiable models and summaries for a given set of empirical data or real-world observations. Breaching one or more conditions would normally require the offender to return to court and would often result in the offender serving the remainder of the sentence in jail. According to Anand, “[i]f one of the functions of the Supreme Court is to clarify the law and provide effective guidance to lower courts, then Gladue is a failure” (Anand, 2000: 414). The first question covers potential danger to the public, an individual, and/or to the accused individual themselves. Justice Knazan of the Ontario Court of Justice (2003) points to the recognition by those working in the criminal courts that once an individual has been denied bail and imprisoned for a pre-trial period, the likelihood is higher that they will also receive a custodial sanction at sentencing. (This point was made consistently over the years by the Office of the Correctional Investigator.). The five-year program was administered by the Department of Justice Canada, although it was established as a cost-sharing program with provincial and territorial governments. Unsurprisingly, judges in the latter category, especially in 2018, were more likely to request a Gladue Report in order to fully understand the offender’s background and to grant bail with appropriate conditions. verb (used with object) to give too much representation to; represent in numbers that are disproportionately high. The cases ranged in severity and included drug trafficking, driving while under the influence, firearms trafficking, robbery, armed robbery, assault, aggravated assault, sexual interference, sexual assault, manslaughter, second degree murder, and first degree murder. This presents a challenge for many Canadian courts as restorative programs, especially those designed for Indigenous people, are still lacking in much of the country. The author posits that Western theoretical approaches influencing child welfare practice and legislation have not adequately addressed the over-representation of First Nations children in … As the first example, I have witnessed occasions where a long-standing and effective Community Justice Committee has been shut out of the business of rehabilitating young offenders simply because a newly arrived RCMP Detachment Commander did not agree with the concept of restorative justice and therefore would not divert pre-charge cases to the local committee (although restorative justice was claimed to be a fundamental aspect of RCMP policy). This is a shocking fact. In fact, a true Gladue Court is characterized by certain specific factors relevant to the intent of s. 718.2(e) and the Supreme Court decision in Gladue. While the Supreme Court in Gladue was progressive in some respects, it was less helpful in others (Roach, 2009). It is unique in that it is a circuit court serving several First Nations in northern Saskatchewan. Programs vary somewhat in terms of specific purpose and structure; however, they all take a community-based justice approach. The errors concerned a lack of understanding of Gladue principles as set out by the Supreme Court in Gladue, and the inconsistent application of those principles. For example, while court mandated sentencing circles can work well in Ontario or Saskatchewan, they do not fit with Inuit culture. Thus, while many Indigenous people continue to live in rural and remote northern communities, the stereotype of Indigenous people living predominantly in isolation no longer holds true, a fact that has significant implications for policy development in most social arenas, including criminal justice. Proceedings are held in relatively informal settings where the judge works with a range of resource persons to devise an individualized healing plan for the offender. It is important to remember that community-based approaches that involve the court, such as circle sentencing, are not appropriate in all cases. This is a significant policy decision by the Toronto Gladue Court. Rudin continues with the following regarding vagueness in the Gladue judgment: The Supreme Court in Gladue directed sentencing judges to look at alternative sentencing options, and to consider broad systemic and background factors that affect Indigenous people generally and the offender in particular. This continues to be problematic for two reasons. According to Statistics Canada (2017a), in 2016 51.8 percent of the total Indigenous population lived in a metropolitan area of at least 30,000 people. In so doing, Justice Cohen was applying Section 38(2)(d) of the Youth Criminal Justice Act (YCJA), which states: Section 38(2)(d) of the YCJA corresponds directly to s. 718.2(e) of the Criminal Code and is expressly designed to lower the high incarceration rate among Indigenous youth. For the year of 1998, the data is as of August 10, 1998. The imposition of a conditional sentence by a judge is restricted in several ways, including the fact that the period of imprisonment is less than two years, that the offender has not been convicted of a serious personal injury offence, and that the judge is satisfied the offender would not threaten community safety if a conditional sentence were imposed. ALS Gladue writers provide report writing services to at least twenty Ontario courts upon request. Female representation on IOC commissions has also risen to 45.5 per cent, a historic high that equates to a 124% per cent increase since 2013. Similarly, Yukon and the Northwest Territories have established Wellness Courts, designed to provide rehabilitative support for offenders with issues of mental health, addiction or cognitive impairment (see Hornick, Kluz and Bertrand, 2011). The Gladue appeal arose from a sentencing decision handed down by a trial court judge in British Columbia in the case of Jamie Gladue, an Indigenous woman convicted of murder. The Toronto Aboriginal Youth Court is a model worthy of consideration in other jurisdictions. The sentence, which involved incarceration and probation, was appealed on the grounds the trial judge had not adequately considered the circumstances and heritage of the offender as an Indigenous person according to s. 718.2(e). The availability of viable, culturally relevant community-based programming has improved since the Supreme Court’s ruling in Gladue (see section 5.5, below). Indigenous people are less likely to be employed or to have an income and are often alienated from family and community, making bail is a real problem. In June 1995, Parliament passed Bill C-41, a bill amending the Criminal Code with respect to sentencing. This, as noted in section 4.1.2, above, is a form of systemic discrimination for Indigenous accused. As Rudin points out, before the amendments came into force “sentencing was the exclusive purview of judges who balanced the principles of deterrence, denunciation, incapacitation, and rehabilitation in their own personal fashion, subject only to appellate review” (2007: 40-41). The Aboriginal Justice Strategy Formative Evaluation noted the following: In response to this argument, governments and related organizations such as the RCMP often claim to have initiated “culturally relevant” or “culturally appropriate” community-based alternatives as an effective way to address problems. The alternative is a “bottom-up” definition “which recognizes that communities are self-defined by people as a reflection of their local interactions and participation” (B.C. For example, consider the importance of culture and culture clash in the development of new approaches to Indigenous justice. This is especially concerning in light of the fact that Indigenous offenders, especially in the western provinces, are disproportionately likely to breach their conditions. However, the various courts do not necessarily share the same structure or process.Footnote 23 For example, the sentencing circle concept is seen as relevant to Indigenous ways of addressing problems and finding solutions in a communal, supportive manner. Further, it became apparent that many defence counsel were not aware of the availability and the importance of culturally appropriate diversion programs. The courts monitor each individual’s rehabilitative progress and a judge makes a final sentencing determination. When asked, the judge acknowledged never having spoken with the local committee about what they could and would take on. Since the AJI began in 1991, the federal government has developed a strong capability to enter into effective dialogue with provincial and territorial governments and with the Indigenous communities and community groups proposing community-based justice programs. A further essential component of an effective Gladue Court is the involvement of committed justice professionals, including judges, Crowns, and defence counsel, who are trained in Indigenous justice issues. Visible minorities as a whole do not appear to be over-represented among incarcerated offenders, since they account for 13% of the population in Canada (Statistics Canada, 2001). However, the proportion of Indigenous adults in provincial and territorial institutions has continued to increase substantially relative to non-Indigenous adults. Proulx attributes this hegemonic approach to defining community as the result of “historically and geographically specific colonial discourses and practices”, including legislation such as the Indian Act (2003: 152). The overrepresentation of Indigenous Peoples in jails and youth detention in B.C. This product presents information from the Census of Population focusing on the Aboriginal identity population of various geographic areas. Government and judicial support for the concept of alternatives to incarceration – community-based justice – was strongly indicated. The Aboriginal Youth Court hears cases in a more relaxed atmosphere than regular youth court and diverts youth to culturally relevant programs in Toronto, particularly to the Community Council Project at Aboriginal Legal Services.Footnote 27 The court monitors the youth’s progress in diversion programming and the result is typically the withdrawal of charges. This places significant stress on the correctional system, as well as on the individuals in remand. The mainstream system is, after all, still the dominant system. The implications of s. 718.2(e) are addressed below but the reasons why it was needed fall under the rubric of systemic discrimination facing Indigenous people, as discussed in section 4.3, above. Aboriginal Over-Representation TOP. Again, such problems can be explained by systemic discrimination in the criminal justice system. Five aspects will be addressed: first, changes to the Criminal Code regarding sentencing introduced by the Government of Canada and subsequently elaborated upon by the Supreme Court of Canada; second, the establishment of Gladue Courts; third, issues of bail and remand; fourth, a review of Gladue case law; and fifth, community initiatives and government relations with regard to addressing Indigenous justice issues. Indigenous offenders continue to be incarcerated at levels significantly higher than non-Indigenous offenders. It remains a concern in other parts of Ontario and in other provinces and territories. This marginality is characterized by the problems noted earlier in the report: poverty, unemployment, low educational attainment, poor housing, and poor mental and physical health. There are higher numbers of Gladue Courts in Ontario and British Columbia. Among the amendments was s. 718.2(e), which instructs judges to look We used a separate calculation (described further in Appendix A ) to determine the threshold at which the data represents either disproportionately high or disproportionately low incidences of admissions into care. Statistics Canada explains the increasing urban population results from multiple factors, including demographic growth in both urban and non-urban settings, mobility, and changing patterns of self-reported identity (ibid.). In fact, according to the Court, “statistics indicate that the overrepresentation and alienation of Aboriginal peoples in the criminal justice system has only worsened”. Dickson-Gilmore and La Prairie (2005) argue that Indigenous people are at higher risk of offending, re-offending, and breaching conditions due to their relative marginality in Canadian society. For example, the following formed part of a judge’s ruling in a bail application in the Provincial Court of Saskatchewan (R. v. Heathen, 2018 SKPC 29): Nonetheless, as Justice Knazan says, “[a]ll the same, the Toronto Gladue Court addresses the particular circumstances of Aboriginal offenders at the bail hearing as an important part of considering ‘all available sanctions other than imprisonment that are reasonable in the circumstances’ as s.718(2)(e) requires” (2003: 11). It is these fundamental problems that must be addressed in a comprehensive and proactive way by courts, other justice institutions, and governmental and non-governmental institutions operating in other sectors such as health, education, housing, and employment. This takes the form of Gladue Reports, which are prepared by trained experts who do relevant background investigations on individuals. Their concern is that judges might choose to apply conditional sentences as an alternative to imprisonment in instances when a less serious sanction might have been ordered prior to the arrival of s. 718.2(e) and Gladue. Overall, however, Dickson-Gilmore and La Prairie confirm that social and economic marginality resulting from a history of living the colonial experience contributes to higher risk of offending, re-offending, and breaching conditions among Indigenous people. The result may be that when an Indigenous offender is sent to prison for the remainder of their sentence after a breach, they may be incarcerated longer than if they had been sent to prison in the first place (Rudin, 2018). Similarly, Aboriginal youth continue to be involved in the corrections system at disproportionate and increasing rates. Net widening through the use of conditional sentences and the likelihood of breaching conditions are still serious potential problems. You will need to provide a reference list and that also must be in APA style. Under-policing and over-policing are really two sides of the same coin. Similarly, I have witnessed a judge referring a man convicted of spousal assault to a Community Justice Committee for “traditional counselling” as part of his probation order when, in fact, the Committee was not at all prepared to deal with such offenders. The amendments reflected in s. 718 introduced a degree of restriction on judges’ decision making by imposing legislated sentencing guidelines. The use of a conditional sentence is more serious than commonly understood. Rudin points out that “[a]s with much legislation, the actual meaning of s. 718.2(e) remained somewhat vague until the Supreme Court of Canada released its decision interpreting the section in 1999 in the case of R. v. Gladue” (2007: 42). “Adult and youth correctional statistics in Canada, 2017/2018.” Statistics Canada. In its examination of Manitoba courts, the Aboriginal Justice Inquiry of Manitoba identified the denial of bail and pre-trial detention as concurrent problems commonly facing Indigenous accused (1991: 221-4; 360-1).Footnote 24 The Commissioners noted that, according to analyses of provincial court data, Indigenous men and especially women were significantly more likely to spend time in pre-trial detention than non-Indigenous accused. An evaluation of the Aboriginal Youth Court concluded the court was achieving positive results with respect to several measures, including re-offending (Clark, 2016a). The Court stated “[t]he figures are stark and reflect what may fairly be termed a crisis in the Canadian criminal justice system” (R. v. Gladue, [1999] 1 S.C.R. But the Government of Canada, together with provincial and territorial governments and Indigenous communities and organizations, has a responsibility to make reversing the marginalization of and discrimination against Indigenous people a priority. Another essential component of the Gladue process is the availability and accessibility of culturally appropriate rehabilitative programs, often referred to as community-based justice programs. However, for such claims to be valid, it is essential for funding bodies and their affiliates, such as the RCMP, to take very seriously the proposals developed by communities and community-based groups (Clark, 2007). However, Roach and Rudin (2000) predicted one year after the Gladue judgment that while it was positive in many respects, it was not likely to reduce the disproportionate rate of incarceration of Indigenous offenders, a prediction that appears to have been accurate. Similarly, the Supreme Court of Canada recognized the extent of the problem in Gladue: Like the decision to sustain the Aboriginal Justice Strategy and now the Indigenous Justice Program, policy decisions required to address issues of marginalization are largely the responsibility of the Government of Canada and, to a lesser extent, provincial and territorial governments. Judges who assume the negative position are often concerned primarily with public security and the perceived need to keep the offender in pre-trial detention. Introduction TOP. (Department of Justice Canada, 2018b). Footnote 22 As Roach and Rudin explain. This is according to the Ministry of Justice’s own statistics on race in the justice system, and has previously been acknowledged by the government. Sentencing is part of the process as prescribed by the Supreme Court of Canada in Gladue. This under-representation has reversed, however, according to a 2018 report from the Department of Social Sciences at UCLA, which states that, despite making up less than 13% of the US population, "Blacks were overrepresented among actors in broadcast scripted … Bail relates directly to issues discussed earlier regarding systemic discrimination, s. 718.2(e) and the Gladue decision. These factors, or goals, can be summarized as follows: In order to achieve these goals, a Gladue Court requires the provision of detailed information regarding the offender to the presiding judge. The Court also recognized the roles played by poverty, marginalization, and systemic discrimination in the overrepresentation of Indigenous people. In 1991, the Government of Canada implemented the Aboriginal Justice Initiative (AJI). When an ethnic group comprising under 15% of the population is over-represented in crime to the extent found, a very large effect is registered on community sentence and prison numbers, and on the communities from which the offenders have come. Pre-trial detention is almost inevitably the result in many courts. Australian crime: … Rudin notes that the court stated that s. 718.2(e) did not automatically mean an Indigenous person would receive a lesser sentence, and said further that when convicted for a serious violent offence, an Indigenous person would likely receive the same sentence as a non-Indigenous offender.Footnote 20 As Rudin points out, “[i]n the subsequent case of R. v. Wells – a conditional sentencing case – the court continued to send some mixed messages as to the impact of s. 718.2(e) in cases of violence” (Rudin, 2007: 43). An evaluation of the Aboriginal Youth Court in Toronto, for example, found that some courts in the Toronto area were attended by lawyers who had very little idea of Gladue and Gladue principles as set out by the Supreme Court, even though they were prosecuting and representing Indigenous persons (Clark, 2016a). It is entitled “Spotlight on Gladue: Challenges, Experiences, and Possibilities in Canada’s Criminal Justice System.”. In proposing this legislation, the government recognized that the rate of sentencing involving custody for Indigenous people was unacceptable and action was needed. The “relaxed atmosphere” involves all participants in the case, including the judge, Crown, defence counsel, the youth and anyone involved in supporting the youth (parents, care giver, social worker, group home supervisor, probation officer, etc.) Bail remand, and pre-trial detention have been particularly serious issues requiring attention, as noted in section 4.3.2, above. Following the lack of clarity expressed by the Supreme Court in Gladue, the ruling in a more recent case was intended to rectify the situation (R. v. Ipeelee, 2012 SCC 13). Judges may not be aware they can be influenced by the fact of pre-trial detention (assumes a greater risk of some form) and subsequently assume the offender deserves further prison time at sentencing. The case law review material was provided by the Research and Statistics Division, Department of Justice Canada. The judge’s decision was based, in part, on the notion that because Ms. Gladue lived in an urban setting and not in a reserve community, she was estranged from her Indigenous heritage and way of life. In the Indigenous context, alternatives are often categorized under the umbrella “restorative justice.” The Court referred to “restoring a sense of balance to the offender, victim, and community, and in preventing future crime.” This is very much a restorative approach to dealing with crime. 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