Gladue as Restorative Justice

By Christopher Little

When first arriving in Nemaska, a small community of 760 persons in Northern Quebec one sees a community that looks as prosperous as any Southern Canadian counterpart. Residents are serviced by a modern airport, have access to new swimming and fitness facilities, and new buildings are constantly under construction

This appearance of prosperity, however, disguises many of the difficult historical experiences that community members have confronted. Indeed, the reason that Nemaska and many other communities in the region appear so new is that they were constructed largely since the 1980s, after the Cree were forced into a sedentary way of living that began during the fur-trade period and culminated with the James Bay Hydroelectric Project and the flooding of their lands.

As a Gladue writer for the Department of Justice and Correctional Services of the Cree Nation Government, part of my placement has been devoted to conducting historical research about the community. It is this information, some of which is presented below, which allows the Court to better understand why some offenders appear before the Court and which may therefore diminish the moral blameworthiness of the offender.

The James Bay Hydroelectric Project

The defining event of the modern life for the Cree of the James Bay has been the creation of the James Bay Hydroelectric Project. This project began with Quebec’s desire to harness the natural resources of the land to complete its modernization. The construction of the Hydro-Electric Project was a central feature of Robert Bourassa’s 1970 electoral campaign and his promise to create 100,000 jobs, and once elected, he saw that the project was a priority.

This project, which would require changing river flows and create massive flooding, threatened the Cree way of life which was depended upon continually moving across the landscape in small, extended family groupings, to harness game resources. Although Cree groups in the James Bay did gather around the Hudson’s Bay Company trading posts where they sold furs, acquired supplies, socialized and arranged marriages, this typically occurred only in the summer months when game was scarce and fish thus became the primary subsistence food.

In advance of this project, the Nemaska people who had settled around the trading post at Lac Némiscau were visited by Hydro-Quebec officials and told that their land would be flooded and that they would have to move.  For this and other reasons, such as the closure of the Hudson’s Bay trading post, Nemaska people were relocated by the Federal government, with half going to Mistissini and half to Waskaganish (Rupert House).

The site of the Hudson’s Bay Company trading post on Lac Némiscau

However, at the time, the Cree did not have an overarching identity and instead, “the region was comprised of eight different communities having relatively little to do with each other… [and] whose primary allegiances were to their own communities (and in fact in some cases even to smaller units than the community).”[1]  As such, the Nemaska people were largely treated as outsiders in other communities, and forced to erect housing on the least desirable lands.

While beginning to transition to a sedentarized life, Nemaska people experienced other difficulties as well. For instance, elders recall that the time in exile was the first time that people had sustained access to alcohol and that alcohol overconsumption became a pressing social issue. Likewise, the time in exile also disrupted traditional cultural practices such as fishing since people from the inland were unfamiliar with coastal tidal waters.

While living in exile, the James Bay Hydro Electric Project proceeded without consultation with the Cree. It was only a young generation of Cree leaders, such as Philip Awashish and Billy Diamond, who heard about the project by reading a day-old copy of the Montreal Star, used their residential education, to organize resistance and launch a legal challenge that brought the Quebec government to the negotiating table.[2]

 

Part of Hydro-Québec’s modification of the Rupert River that was expected to result in the flooding of the Nemaska trading post.

 

Power lines run across the landscape of the James Bay region.

Creating a Community

The James Bay and Northern Quebec Agreement (JBNQA) provided for the relocation of members of the Nemaska band to a new site. As such, in 1978, those who were exiled at Mistissini and Waskaganish were re-located to the shores of Champion Lake. However, even after being re-located to their new community, the Nemaska people continued to experience hardship because the government was not fulfilling their terms of the JBNQA. In 1980, for instance, an epidemic of gastro-enteritis resulting from insalubrious living conditions hit Nemaska and three children died.

Cree communities are built on land reserved for their exclusive use under the JBNQA

In 1981, then M.P. for Cariboo-Chilcotin, Lorne Greenway, read the following into the record of the Standing Committee on Indian Affairs and Northern Development:

In August 1980 the Quebec ministère des Affaires sociales (MAS) received word from the Cree Indians of James Bay that an epidemic had broken out in their villages of Nemaska and Fort-Rupert. A mission of medical and environmental specialists was dispatched to the scene. They found: people living in substandard housing; appalling sewage and waste water disposal facilities; contaminated water supplies; poor hygiene and relative isolation from the outside world. In Nemaska, for instance, some 35 families still lived in tents, awaiting the construction of houses on permanent sites, five years after the Agreement was signed. Furthermore, the village’s isolation from the provincial road network limited outside communication to air and motor-canoe. Solid garbage and waste were being dumped into a site near the edge of Lake Champion, a shallow lake that will not long tolerate such practices without becoming polluted.[3]

While more suitable residences were eventually constructed—though housing shortages continue to plague the community—sedentarization had additional social consequences. Living in houses designed for nuclear families, for instance, upended traditional living arrangements which were based upon extended or multi-family cohabitation. A diet which had once been based around game meat was replaced by processed foods imported from the South. Likewise, whereas once every activity had been oriented towards the locality, after settling on reservations, people were now incorporated into complex administrative structures based in distant cities such as Val-d’Or.

Other more existential questions, however, were more difficult to answer: How do people who came to see themselves as “hunters and trappers,” now adopt to making a living through wage labour? How do people without a tradition of communal living—or even, perhaps, a notion of community in the sense of Western social theory—successfully live together? And finally, how do people who have experienced so much hardship, move forward with their lives in the context of radical change?

Gladue and Restorative Justice

These last two questions are ones to which there is no clear answer, and they become particularly acute in the context of serious crime and persistent offenders. Statistics illustrate that aboriginal persons are three times more likely to be victimized by crime than other Canadians.[4] Further, “Perpetrators of violence against Aboriginal people are most often other members of the Aboriginal community such as spouses, relatives, or friends of the victim, and as such, victimization among Aboriginal people in Canada is often regarded as a mirror image of Aboriginal offending.”[5]

The justice system has largely relied upon imprisonment to address of aboriginal offenders, leading to the problem of aboriginal overrepresentation that I previously discussed. However, given the colonial history of aboriginal populations—some of which is discussed above—those appearing before the court as offenders are, from another perspective, also victims.

Court rooms in Cree communities are circular, reflecting the idea that the community should be involved in justice matters.

Gladue reports allow for the possibility to address this dual victimization through restorative justice. Restorative justice approaches see crime as both a violation of the law and as a violation of relationships and communities. They therefore involve those affected by a crime to try to repair the harm done while encouraging an offender to take responsibility for their actions. Restorative justice approaches therefore not only allows the offender to grow through the process but, for all those to have their say in any proposed solutions.

Gladue reports allow for the possibility to address this dual victimization through restorative justice, which sees crime as both a violation of the law and as a violation of relationships and communities. Gladue reports allow for the realization of restorative justice in several ways, but most obviously by proposing sentences to the Court that address the underlying issues that brought an offender to appear before the Court. Courts in the James Bay region, for instance, have allowed offenders to participate in Sun Dances as well as attend land-based programs given that spending time on the land “is recognized throughout Cree society as a potential source of personal improvement.”[1] These restorative sentencing options are tailored to suit the particular offender and the community, and emerge from interviews with the offender and others, allowing those impacted by crime to have a say in its resolution.

Additionally, since Gladue reports engage with the life history of the offender, supplemented by information from other family members, the process of creating and reviewing the report allows the person to reflect upon their life experiences as well as their offences. They are often therefore able to plot a better path forward, both for themselves and their community, that will allow them to live a more harmonious life.

[1] Paul Wertman, 1983. Planning and Development after the James Bay Agreement. The Canadian Journal of Native Studies 3(2) at page 278.

[2] Ronald Niezen, 1998. Defending the Land: Sovereignty and Forest Life in James Bay Society (New Jersey: Prentice Hall) at page 48.

[3] Standing Committee on Indian Affairs and Northern Development, 32nd Parliament, 1st Session. March 26, 1981 at page 1101.

[4] Jodi-Anne Brzozowski, Andrea Taylor-Butts, and Sara Johnson, 2006. Victimization and offending among the Aboriginal population in Canada (Ottawa: Canadian Centre for Justice Statistics) at page 1.

[5] Katie Scrim, 2017. Aboriginal Victimization in Canada: A Summary of the Literature. Available: < https://www.justice.gc.ca/eng/rp-pr/cj-jp/victim/rd3-rr3/p3.html>

The Politics and Uncertainties of Gladue

By Christopher Little

In 1998, Parliament added section 718.2(e) to the Criminal Code. This provision stated, quite simply, that at sentencing, judges consider:

all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.[1]

In requiring that judges consider alternatives to incarceration, Parliament was taking aim at the disproportionately high incarceration rate of aboriginal offenders. As then Minister of Justice Allan Rock noted before the Standing Committee on Justice and Legal Affairs:

The reason we referred specifically there to aboriginal persons is that they are sadly overrepresented in the prison populations of Canada… Nationally aboriginal persons represent about 2% of Canada’s population, but they represent 10.6% of persons in prison.  Obviously there’s a problem here… What we’re trying to do, particularly having regard to the initiatives in the aboriginal communities to achieve community justice, is to encourage the courts to look at alternatives where it’s consistent with the protection of the public—alternatives to jail—and not simply resort to the easy answer in every case.[2]

While the legislative objectives seemed simple enough, their implementation would be more complex. Indeed, Parliament did not articulate what alternatives ought to be considered and how this information was to be made available to judges. Instead, interpretation fell partially to the Supreme Court of Canada in R v Gladue (1999), in which the court considered the case of Jamie Gladue, a young aboriginal woman living off reserve who appealed her sentence for manslaughter because the judge did not consider s. 718.2(e). In their decision, the Court held that 718.2(e) was both remedial in nature, designed to rectify the overrepresentation of aboriginals in prison, and that it therefore applied broadly to all aboriginal persons.

Following the case, the information that was to be brought to the Court came to be referred to as “Gladue factors” and the vehicle that presented this information came to be known as a “Gladue report.” Gladue reports are thus a form of pre-sentencing report discussing an offender’s life and community history, as well as alternative sentencing options other than imprisonment that a judge may consider.

Conflicts and Confusion over Gladue

Before and during my placement as a Gladue Writer with the Department of Justice and Correctional Services of the Cree Nation Government, I had the opportunity to complete Gladue training and speak with many people who write Gladue reports. What became clear to me was that there is still little consensus surrounding Gladue reports.

For example, Gladue information may be presented to a court in various forms. In Quebec, Gladue reports are standalone documents that may exceed 10,000 words and are prepared by specialist “Gladue writers” who spent many hours conducting interviews and historical research. In contrast, in the Northwest Territories, as an example, Gladue reports are not even written. Instead, regular pre-sentencing reports that are written by probation officers—whose primary concern is risk assessment—contain a brief “Gladue paragraph” that is supposed to discuss an offender’s life history and community information.

Likewise, while there is a consensus that Gladue factors are to be considered at sentencing, uncertainty surrounds whether these principals apply at other occasions when aboriginal offenders are faced with the deprivation of their liberty. For instance, in Ontario, courts have held that Gladue principals apply at bail hearings, while a more recent decision from Nunavut has held that Gladue does not apply at such hearings.[3]

Finally, there is much divergence between writers themselves. For example, while some Gladue writers see themselves as “neutral” or at least impartial and disinterested parties who merely compile information for the courts, others understand themselves as working on behalf of the offender to “help” them. Likewise, among writers there are many disputes concerning how Gladue reports should be compiled and by whom. Some writers, for instance, insist upon the use of recording devices to better convey the offender’s story to a court, while others believe that the use of recorders creates a barrier that will prevent the offender from speaking openly. Likewise, while some give offenders the chance to review their reports before they are sent off, others insist that this is counter-productive and may not feasible given tight deadlines. Finally, some suggest that the perspective of victims should, when possible, be included in the report while others suggest that sentencing is entirely about the offender and victims can bring their own information to the Court through a victim impact statement.

The confusion surrounding Gladue is also evident in the final report of the National Inquiry into Missing and Murdered Indigenous Women and Girls. The report makes many recommendations, some of which pertain to Gladue. For instance, the commissioners appear to recognize the importance of Gladue reports when they call for governments to adequately fund Gladue and to create national standards for what is to be included in the reports. However, commissioners also call for the government to evaluate sentencing equity as it relates to violence against Indigenous women and girls, reflecting the view that, in the words of commissioner Qajaq Robinson, that Gladue reports offer a “get out of jail free card” and release potentially dangerous offenders back into the community.[4]

Toward Standarization?

These differences reflect the fact that despite having been in existence for some 20-years, there are no guidelines for writing Gladue reports. Instead, over the years, various practitioners began writing Gladue reports, learning largely through trial and error, and have now created Gladue courses to train other writers, who take their version of what a Gladue report should be, across the country. Such an approach has, in effect, institutionalized discrepancies in reports across the country. In turn, this has led to disputes about “best practices” and battles over standardization, between practitioners who have honed their practice in different contexts: some in aboriginal communities, others in urban environments, some coming from academic backgrounds, other from practice-oriented fields such as mediation.

The ambiguity surrounding Gladue, however, is likely to be the subject of increasing attention over the next several years. Aboriginal overrepresentation in prisons has continued to increase, the various inconsistencies in Gladue are receiving attention across, and the MMIWG report has brought Gladue into the mainstream.

 

[1] R.S.C. 1985, c. C-46.

[2] House of Commons, Standing Committee on Justice and Legal Affairs, Minutes of

Proceedings and Evidence, no. 62 (November 17, 1994), at page 62.

[3]  R v Robinson, 2009 ONCA 205; R v Jaypoody, 2018 NUCJ 36.

[4] Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls at page 185; Kim Beaudoin. Fair Access to Justice Must be for all Indigenous People. The Globe and Mail, 3 July, 2019.

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