Gladue project aims to educate, gather feedback

‘Need for awareness’ amid rising number of Indigenous offenders, lawyer says

It’s been close to two decades since a Supreme Court of Canada decision changed the way courts view and sentence Indigenous offenders.

But, for some, it seems 19 years has not been long enough to fully comprehend the Gladue case.

“There are varying degrees of knowledge, but there’s still a need for awareness, that people are actually informed about this case and how it works and how it applies in various situations,” said Regina lawyer Michelle Brass.

Brass is undertaking a series of seminars in her role as Gladue Project Research Officer with the University of Saskatchewan’s Native Law Centre, attached to the College of Law.

With funding from the Law Foundation of Ontario, Brass is working on what’s termed the Gladue Awareness Project, researching the landmark 1999 case (and the more recent, related Ipeelee case from 2012) and the way it’s applied within Saskatchewan.

“The numbers keep rising about incarcerated Indigenous people within Saskatchewan,” Brass said. “So I’m trying to get the discussion going and have people talk about this particular issue, talk about their experience, talk about their insight and expertise ... It’s to address the high number of incarcerated Aboriginal people in the province and to try and do something to bring those numbers down.”

The Gladue case instructs lower courts to consider an Indigenous offender’s background when deciding on sentence. Gladue — and the Ipeelee case which expanded upon the Supreme Court’s previous findings — laid out the importance of a restorative justice approach, where possible, to help alleviate the disproportionate number of Indigenous offenders in Canadian jails. The original case led to the implementation of Gladue reports, which look in-depth at an Indigenous offender’s personal background, as well as his or her community. The reports detail what are known as “Gladue factors,” which include issues springing from an offender’s personal upbringing or larger systemic problems, such as poverty, racism and the impact of residential schools. They then offer up restorative justice alternatives a judge can consider.

Brass said she studied 286 reported cases arising between 1999 and the spring of 2018.

As part of her one-year contract, she is now taking information about Gladue throughout the province, via seminars scheduled between June and November. The seminars will allow her to discuss her research, informational booklets and brochures she developed on Gladue rights, and the technical components of a Gladue report, and will enable a discussion with participants about their experiences and how the Gladue process might be made better.

She said the seminars are intended for tribal council justice staff, those who work in the court and corrections systems and the public.

She said the project isn’t dismissing others’ work on the issue, noting that it aims to “take everything together so we can just kind of move to a more positive way to hit this problem more head-on but together.”

At the conclusion, Brass intends to compile a report that may include recommendations.

While the Gladue case is frequently referenced in courtrooms, Brass said there are still instances in which an offender’s Indigenous background is not properly addressed. “There still seems to be a tendency to sort of limit the application of 718.2 (the relevant Criminal Code section),” she said. “So whether that’s lack of awareness of what the case actually says, that might be one of the problems. In other ways, as well, offenders don’t know about it, don’t know aboutthecase.”

Those wanting more information or who are interesting in attending a seminar can email michelle.brass@usask.ca.