This week I found myself sitting across from a client at the cellblock in the courthouse, preparing for a guilty plea. He is Inuit, having lived in Ottawa for over a decade. He has long criminal record, mostly made up of petty thefts and breaches of probation. He has struggled with alcohol for most of his life. Sadly, his story his not uncommon.
The issue of over-representation of Aboriginal people in Canada isn’t a new one. The landmark case in Aboriginal sentencing was released over 15 years ago. In R v. Gladue, the Supreme Court recognized that there are unique factors that bring Aboriginal people before the courts, both individual and systemic, and that these factors should be considered by sentencing judges. The court should take a more restorative approach to sentencing and look at the individual’s Aboriginal background when crafting a sentence. Judges must be mindful of the intergenerational effects of colonialism, including residential schools, family dislocation, poverty, physical or sexual abuse, substance abuse. As the court stated in R v. Ipelee, sentencing judges need to be aware of these factors so as to not contribute to systemic racism in our courts. This approach is also rooted in the criminal code, in section 718.2(e), which tells judges that they must consider jail as a last resort, particularly for Aboriginal people, given that it can have a disproportionately harsh effect .
So what does this mean, in practical terms, for my client? Basically, when making an argument for sentence, I provide the judge with information as to the client’s background, family life, and connection to their community. I relate whether their family was affected by residential schools, whether they have been dislocated from their parents, whether alcohol has played a role in their lives, whether they have suffered abuse.
The difficulty is that these are complex, longstanding, intergenerational issues that are inadequately summed up in a brief sentencing submission. Sometimes a court will order a ‘Gladue report’ which is a much more detailed pre-sentence report. However, they generally take over two months to complete and are not an option for clients who are likely to be released after a short stint in jail on a minor offence. Lawyers and judges have come to a sort of shorthand, where when we say “the Gladue principles are at play” and this triggers an understanding of the background factors and systemic disadvantages of Aboriginal people. But this approach is woefully inadequate to properly capture what is really at play. My running through a laundry list of the abuse suffered by my client does not do justice to his experience. I cringed when I asked him those questions before court, feeling insensitive for having to go through with him whether his family was broken by residential schools, or whether he was beaten by his parents, so that I could convey this information to the judge.
The system is far from adequate in addressing these issues and to properly dealing with Aboriginal clients. Earlier this year, when the Truth and Reconciliation Commission (TRC) released its recommendations, it urged provinces and the federal government to reduce the rates of incarceration for Aboriginal people. This absolutely needs to happen, but I think that by the time that a person has been convicted, especially for the second (or twenty-second) time, it is often too late for the courts to be an effective remedy.
Luckily, my client recently secured himself an apartment. For the first time in many years, he has a safe place to go home to, rather than simply bouncing between a shelter and jail. He is adamant about spending his money on the apartment and not on booze. He has been working with his Ontario Works worker about getting into some alcohol treatment. It won’t be an easy road, and it’s very idealistic of me to suggest that his troubles will stop here, but I can hope, at least, that I won’t see him back for a little while now.