Breaking bad by breaking even

What’s in a name, really? Nothing most of the time, unless you’re talking about Gladue Reports in Canada.

For some people, the name alone sparks controversy and mixed emotions, and it’s sometimes even misinterpreted as a “get out of jail free card” by people who don’t understand, or just don’t agree with, their purpose.

While judges can choose a rehabilitative option over jail time using information found in the report, the purpose is not necessarily to skip jail, but to place an offender on a path of healing. It’s the fact that they are for Aboriginal people only, however, that makes others think it might be an unfair advantage.

If you talk to someone like Judge John Reilly, now retired, who sat on the bench near the Stoney Nakoda First Nation for more than 20 years, he will tell you it’s not about advantage.

It’s about simply breaking even, by acknowledging Aboriginal people already stand on unequal footing compared to the Canadian population, even before stepping into the courtroom.

“There was never any agreement they would become subject to the white man’s laws. They simply said they would share the land with us… The whole concept of the European justice system was being forced upon a people it was foreign to, so the whole system was an inequality to them,” said Reilly in an interview with Windspeaker.

An excerpt from his 2010 book Bad Medicine: A Judge’s Struggle for Justice in a First Nations Community illustrates his point further by poetically calling out racist colonial legislation as a leading cause of some of the corruption and crime he’s dealt with:
“And what do I think about John Snow? He too was the victim of his circumstances, and as I have said, “circumstances” has become the byword of my life. Snow grew up in Canada. But he did not grow up in a free and democratic society like most Canadians do. He grew up in an absolute dictatorship created by the government of Canada. He grew up on an Indian reserve that was ruled by an Indian Agent who had the power to control every aspect of his life…”

Ironically, while still in practice, Reilly got himself into trouble from superiors for doing exactly what Gladue reports and Gladue sentencing principles now mandate. Even though they were already being talked about, they just weren’t being utilized. Reilly was even moved from his Canmore bench to one in Calgary as a result, which he talks about in a second book entitled Bad Justice: The Myths of First Nations Equality and Judicial Independence in Canada.

“When I was still sitting back in the ‘90s and early part of the century, my view was that Aboriginal people had been wronged by the white justice system. And to compensate for the wrong, we should be dealing with them differently,” he said, adding that, yes, Gladue reports would have helped, especially regarding the options for rehabilitation judges don’t always have knowledge of.

“Indigenous laws are restorative, and as such, we should be dealing with them that way,” he said.

Catherine Bell, a law professor at the University of Alberta, says the issue is not so much whether Gladue reports should or shouldn’t be used, but who should do it, and how.

Right now, each province does them slightly differently, with funding falling under different government or private bodies—in some cases including Legal Aid Societies, and in some cases having the offender pay for the report.

Gladue report writers are hired and trained differently, too, though the process is still inadequate, Bell said.

Bell and a committee of law professionals have come up with a solution, for Alberta at least. They’re launching a law course in January 2017 at the University of Alberta. It is the result of a partnership that began two years ago between Alberta Aboriginal and Business Relations (part of the Aboriginal Justice Department of the Government of Alberta) and the university.

Two things influenced the creation of this course… The first one is the Gladue and Ipeelee case decisions that required information about the unique systemic and background factors that played a role in bringing First Nations, Métis, or Inuit person before the court, said Bell.

“And the other influence is that with calls to action from the [Truth and Reconciliation Commission], what came forward is there is not enough cultural competency training with members of the bar… The lawsuits involving survivors, as well as abusers, of residential schools revealed a need for lawyers to have a better understanding of Aboriginal history and their interaction with the legal system,” she said.

“The seminar is going to have a variety of different components to it, but it’s designed to provide students with the legal and social, as well as the historical and contemporary context of why we have these Gladue principles, and these reports,” said Bell.

“We’ll be covering things like colonial history, fetal-alcohol syndrome, intergenerational trauma of residential schools, and we’ll be inviting various members of the judicial system to be part of that seminar, as well,” she said.

While all law students gain some knowledge of Gladue reports through their education, said Bell, the UofA’s course will be unique in that it involves a 35-hour “externship” where law students will accompany Gladue report writers to interviews with offenders, and interviews with offender’s family and friends,both are elements involved in completing Gladue reports.

“They’re not going to be working in the capacity of giving legal advice… We want them to be assisting, learning, and listening, rather than just going in and giving advice. Because I think sometimes as lawyers we go into a community and think we have all the answers, instead of asking the right questions,” she said.

Nicole Stewart is the criminal lawyer that will be working alongside Bell in teaching the course. She is on the Gladue committee, too, but has seen Gladues first-hand in her practice, and she is fully convinced of their value. 

“A Gladue is not used just for an individual who is not going to get a jail sentence. It’s often used with a serious offense, and is not meant to reduce the sentence… But it gives the judge the proper understanding of where this person is coming from, and the trauma they faced...,” said Stewart.

“This actually gives you a recommendation on how we can help this person not continue being part of the criminal justice system,” she said.