OTTAWA — Twenty years ago last April, the Supreme Court of Canada handed down its decision in the case of a young Cree woman who had killed her common-law husband.
The woman was Jamie Tanis Gladue, who at age 19 had stabbed her husband upon discovering his infidelity, while intoxicated after a party. She pleaded guilty to manslaughter and was sentenced to three years’ imprisonment, receiving parole after six months.
The Supreme Court upheld Gladue’s sentence, but it was a landmark decision all the same. The court stated that judges must consider during sentencing the unique circumstances of Indigenous offenders, as well as alternatives to jail time.
That consideration, enshrined in the Criminal Code and now known as the Gladue principle, was intended to address the over-representation of Indigenous people in Canadian jails. It has since given rise to the creation of Gladue reports, documents that set out the background of Indigenous offenders for sentencing judges, including information about whether they attended residential school, spent time in foster care, or have struggled with substance abuse.
The Gladue principle features in the final report of the National Inquiry into Missing and Murdered Indigenous Women and Girls, released on Monday, in the ways one might expect. The inquiry calls on all governments to “consider Gladue reports as a right,” to fund them appropriately and to create national standards for them.
But almost in the same breath, it seems to cast doubt on the whole endeavour. Commissioner Qajaq Robinson on Monday said that in some instances, the Gladue principle is “resulting in violence against Indigenous women” by affording lighter sentences to those who hurt them. The report calls on governments to assess the impacts of the Gladue principle on “sentencing equity” in such cases.
The recommendation is one of several that seem to call for harsher punishments for those who commit violence against Indigenous women, despite the report itself providing little context to support them. By way of explanation, one line in a summary of findings says there is a “commonly held belief that Indigenous offenders receive more lenient sentences” because of the Gladue principle. “I use the language families use,” Robinson said on Monday. “You get out of jail free. You get a slap on the wrist. The severity of the violence, the reality and the experiences of the Indigenous women in these cases of violence isn’t part of the equation.”
This is a perception that those who write Gladue reports are used to facing, but one they strongly reject. “There’s no quantitative study that points to evidence that Gladue reports always result in shorter sentences,” said Anisa White, chairperson of the Gladue Writers Society of British Columbia. She said a Gladue report, properly done, can set out plans for offenders to make amends in their communities, address trauma and substance abuse, and rebuild their lives. “I fully reject the notion that Gladue reports are negative.”
Jonathan Rudin, program director at Toronto-based Aboriginal Legal Services, said part of what causes backlash against Gladue reports is that victims often don’t receive enough support from the justice system. “We need to provide real resources for victims to allow them to heal,” he said, but added that doesn’t diminish the importance of the Gladue principle. “I think if Gladue reports are a right, and they should be a right, then they should be a right for everyone.”
White said Gladue reports should encompass victims’ perspectives, and said the inquiry’s concerns arise from “ad-hoc, half-hearted approaches to Gladue” across the country. Everyone who spoke to the National Post for this story said they strongly support the inquiry’s call to improve access to Gladue reports, which remain largely unavailable to offenders in several provinces.
“Every statistic we have about Indigenous incarceration … shows that more Indigenous people are in jail now than were being sent to jail in … 1999,” said Jane Dickson, a law professor at Carleton University, adding that national standards for Gladue reports are needed.
Beyond the Gladue principle, the final report also calls for the federal government to consider violence against Indigenous women an aggravating factor during sentencing, and to consider homicides in domestic violence cases as first degree murder, both recommendations intended to level stiffer penalties against those who hurt Indigenous women. Katherine Hensel, a Secwepemc lawyer and member of the Indigenous Bar Association, said she supports those calls as a tool to correct for the systemic bias that often sees lighter sentences applied in cases where Indigenous women are victims. “Evidence has shown we simply cannot rely … on the discretion of the courts,” she said.
But Rudin said such recommendations are problematic in practice, in part because they could put judges in the position of having to decide who is Indigenous. “I’m not a fan of increasing penalties for people,” he said. “There are people who are dangerous. But we already have opportunities to deal with those people in the Criminal Code.”
Dickson said such changes could have unintended consequences for Indigenous offenders. “We need to be very careful here, because although absolutely there are a large number of non-Indigenous men victimizing Indigenous women, there are also a large number of Indigenous men victimizing Indigenous women,” she said.
The final report casts doubt on a commonly cited statistic that 70 per cent of murdered Indigenous women are killed by Indigenous men, saying the estimate “is not factually based.” But it does not provide its own estimates, recommending instead that governments fund research on the men who commit violence against Indigenous women.