More awareness needed about Gladue Decision

The 1999 landmark Supreme Court of Canada case called the Gladue Decision is what legal experts from across the country will meet about in Toronto on April 19.
"One of the issues is that Gladue is not really being considered to the extent it should be by the courts when Aboriginal people are being sentenced and that is not only true in Ontario, but in the rest of the country as well," said Jonathan Rudin, Program Director of Aboriginal Legal Services of Toronto.
Rudin will be co-chairing the National Conference on Aboriginal Criminal Justice Post-Gladue jointly presented by the Ministry of the Attorney General Ontario, Aboriginal Legal Services of Toronto and Osgood Professional Development.
Rudin hopes the conference will raise awareness about the Gladue Decision and how judges, lawyers and other legal advocates can implement it in their communities, said Rudin. Organizers are expecting more than 100 participants from all parts of Canada for the one-day meeting.
"The decision could have far reaching implications for the way in which Aboriginal offenders are sentenced by the courts and presents real challenges for defense counsel and Aboriginal justice service providers in terms of work that they must do to make the decision meaningful for their clients," said Rudin.
For those who can't make it to Toronto, there will also be a simultaneous live webcast available. Experts presenting include judges, Crown Council, defense lawyers, academics and social workers.
Rudin will be facilitating a workshop called Sentencing the Aboriginal Offender: Myths and Realities.
Aboriginal people are not seeing much of an impact from section 718.2(e) of the criminal code and the Gladue Decision and it's important to look at why, said Rudin. Critics of the section suggest there are two types of justice; one in favor of Aboriginal people and one for everyone else, but Rudin sees a reality that is much different.
"One of the things I want to talk about is why is it that despite decisions like Gladue and despite what the criminal code says, why is it that Aboriginal rates of incarceration are still going up? You'd think that wouldn't be happening," said Rudin.
The decision is named because of one young's Aboriginal woman's appeal to the Supreme Court of Canada more than ten years ago. In winning her appeal, the judge clarified a how sentencing an Aboriginal person in Canada according to Section 718.2(e) needs to be applied. What resulted is now known as the Gladue Decision.
Jamie Tanis Gladue is a Cree woman and was only 19 years old when she pled guilty to manslaughter for the killing of her common law husband. At her trial, the judge did not consider her circumstances because she was Aboriginal person living in an urban area. She was sentenced to three years in prison and by the time the Court of Appeal heard her case she had already served her sentence. The Supreme Court didn't alter the length of Gladue's prison term, but said the trial judge erred in not giving weight to her Aboriginal background.

Since the 1999 Supreme Court of Canada landmark decision, the courts continue to hear how they must now take into account background and systemic factors for Aboriginal offenders whether they live on reserve or in an urban area. At the Gladue appeal, the court stated that alternatives to prison were especially necessary for Aboriginal offenders and the need for restorative justice approaches in sentencing should not be restricted to non-violent offences.
Section 718.2 (e) of the criminal code came out of the sentencing reforms passed in 1996 as Bill C-41. The section states that when imposing a sentence: "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".
Generally, the purposes and principals of sentencing are set out in detail in section 718. Stressing the importance of quantity and fairness, the role of aggravating and mitigating circumstances, and mandates the use of imprisonment as a last resort; this section is applied to all offenders in Canada.
Since the sentencing reforms that happened over 10 years ago, more Aboriginal offenders have been sentenced to prison terms than non-Aboriginal offenders.
Rudin was an intervener in the Gladue Appeal with Aboriginal Legal Services of Toronto and has been working since to have the principals of the Gladue Decision applied to sentencing hearings for Aboriginal people. He is also an intervener in many test cases across the country.
At ALST, Rudin supervises three Gladue (Aboriginal Persons) Courts in Toronto. The Court hears cases from Aboriginal people who have charges, accepts guilty pleas, and does bail hearings. Three Gladue Caseworkers write reports at the request of defense counsel, the Crown Attorney or the judge, on the life circumstances of an Aboriginal offender. The reports give recommendations that the court can consider in sentencing in light of the circumstances of the offender. It doesn't mean that the offender doesn't go to jail, said Rudin.
When a conditional sentence is given it is often difficult for the offender to carry out its requirements than a jail sentence, said Rudin. The person who has broke the law has to make amends, heal what is wrong in their life and be accountable to their community, he said.
"I think the conference really happening at the right time because I'm really getting the sense that there are going to be some more initiatives starting up in the near future," said Rudin.