‘Gut-wrenching’

Work still needed years after ruling on Indigenous sentencing

Nearly two decades after a landmark court decision on sentencing Indigenous offenders, lawyers say there are no national standards for implementing the ruling and too many Aboriginal people are still behind bars.

The Supreme Court of Canada’s Gladue decision in 1999 said judges must take note of systemic or background factors when determining a sentence for Indigenous offenders in order to address their “serious overrepresentation” in prison.

Indigenous people often feel removed from the justice system, said Mitch Walker, vice-president of the Gladue Writers Society of British Columbia, which promotes the best practices for writing Gladue reports that lay out the Indigenous background of an accused in pre-sentencing.

“For First Nations people, justice just kind of happens to them. It doesn’t happen with them, it doesn’t happen for them, it doesn’t happen for their benefit,” he said.

“And their interactions with the justice system have historically and contemporaneously been so negative that there’s a lot of fear.”

That may change if a Gladue report is written in their case, which requires getting in touch with an offender, their family and community, Walker said.

“It’s a very delicate and awkward conversation to phone somebody and introduce yourself ... and then proceed with some very, very personal questions, questions that they wouldn’t discuss with their closest friends and family members,” he said.

The accused is also interviewed and it’s often the first time they think deeply about how they ended up in trouble, Walker said.

“Gladue report writers are sometimes the first contact that these individuals have with the criminal justice system who aren’t immediately making them feel as though they are a criminal, making them feel as though they’re being listened to.”

But some in the justice system say the reports have been underutilized.