Some Thoughts On Gladue

Timothy ParrBy Tim Parr

July 28th, 2021. After working from home for the duration of the pandemic, I received last minute confirmation that I would be travelling up to the Cree community of Chisasibi by plane (specifically on a Dash 8-3000) in order to produce a Gladue report.

Prior to this, I conducted research into various topics, such as access to inmates during the pandemic for the purposes of producing reports as well as interviewing families in and out of isolation. To become a certified Gladue writer, I first had to undergo training and produce a mock report. This was the first stage in my work as an intern for the Department of Corrections and Services (Cree Nation Government).

First year law students are, presumptively, well acquainted with Gladue. In 1995, Jaimie Gladue, a young, 19-year-old Cree woman, fatally stabbed her boyfriend at a birthday celebration. Both Ms Gladue and her boyfriend were heavily intoxicated at the time of the tragedy and had a history of domestic abuse.

Initially, Ms Gladue was charged with second degree murder, but plead guilty to manslaughter (see Gladue Primer at 4). The sentencing judge took into consideration the aggravating factors and sentenced Ms Gladue to three years. However, the sentencing judge failed to take into consideration the accused’s Indigenous status.

This oversight provided the grounds for Ms Gladue’s appeal to the British Colombia (BC) Court of Appeal. The BC Court of Appeal dismissed the appeal, upholding the trial judge’s initial sentence. Ms Gladue and her lawyer appealed this decision to the Supreme Court of Canada (SCC) in 1999 on the grounds that s 718.2(e) of the Canadian Criminal Code was not considered by the sentencing judge which, therefore, amounted to an error in law.

The SCC ruled it an error not to grant Ms Gladue special consideration. In effect, the Gladue decision, and its ensuing framework, ensure that Indigenous offenders can exercise their rights under s 718.2(e), which stipulates that “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.” The purpose of this provision is to find alternatives to punitive forms of sentencing for Indigenous people, such as restorative and culturally appropriate practices. In part, this may consist of drug and alcohol treatment, anger management or counselling (Ibid at 3). S 718.2(e) is remedial in nature. It attempts to mitigate the overrepresentation of Indigenous peoples in federal and provincial prisons across Canada. Moreover, judges take notice of the systemic factors afflicting Indigenous people.

Yet despite the precedent set by Gladue and, the concept of stare decisis, Canadian Courts have either inconsistently applied the framework set by Gladue or ignored it altogether. In 2012, it was necessary for the SCC to reaffirm Gladue with Ipeelee. The Ipeelee Court acknowledged that “systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness” (at para 73). Current concepts of sentencing are inappropriate because they have frequently not responded to the needs, experiences and perspectives of Indigenous people or Indigenous communities (Ipeelee at para 74). Indigenous offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options for positive development (Ibid at para 73). The reasons for this are tied to Canada’s colonial history and its assimilatory practices. As a background/systemic factor, a Gladue report considers the history of the community where the individual lives.

Local Foxes

For instance, Chisasibi is one of the most populous of the communities located in Eeyou Istchee/Cree Territory in northern Quebec (see Morneau at 2). Chisasibi is on the eastern shore of James Bay. Like the other communities (e.g., Waswanipi, Oujé-Bougoumou or Mistissini), hydroelectric development and the signing of the James Bay Agreement resulted in the sedentarization of the Chisasibi Cree. The Chisasibi Cree initially inhabited the village of Fort George and were nomadic. Fort George closed in 1980. Fearing the threat of floods caused by hydroelectric development (which there were—an estimated 10 000 caribou perished, and fish were contaminated by mercury), the Cree settled in the community of Chisasibi, also known as the great river.

The Great River Chisasibi

However, sedentarization created a gulf between generations. The young never knew the nomadic lifestyle of their elders (Ibid at 4). Sedentarization was an attempt to assimilate the Cree. Functions previously performed by families became the responsibility of non-Indigenous institutions, such as schools and churches (Ibid). Mothers lost their role as teachers and fathers no longer performed their traditional roles as providers for their family and as managers of the land’s resources (Ibid). This situation is not germane to the Cree. Kim Anderson explains that Mohawk women traditionally held authority in the political, social, economic and spiritual areas of society (at 85-86). Western norms centered on patriarchy and supremacy of the state, displaced the position of matriarchal power for the sake of a worldview consonant with its own.

Views by the River

Sedentarization led to intergenerational consequences for the Cree. Children were taken away from their parents and forced to attend residential schools where they were subjected to abuse, trauma and acculturation. “Social, political, economic, demographic and territorial upheavals have marked the history of the community of Chisasibi since the first contacts with Europeans” (Morneau at 6). A Gladue report takes these factors into consideration and further traces the history of the individual’s family. It is the Gladue writer’s task to tell the individual’s story, not in the writer’s words, but in the words of the individual, as much as possible.

The writer interviews the individual and objectively presents their story to the sentencing judge, so that the judge can better understand how it is that the individual arrived at their current station. That is, what in the individual’s life pushed them to commit the offense.

The Road Less Travelled

The Gladue process presents many challenges. Not only must the writer avoid any bias (either in favour or against the individual), but they must also recognize that the interview may cause the individual to remember traumatic events that they have pushed from their mind. Shortcomings to Gladue are tied to this latter point. Support for individuals following the interview with the writer appear to be lacking. Without proper support mechanisms, there is the risk of regression. Fortunately, community actors are working to fill this void.

Elsewhere, Professor Marie Manikis has argued that the Gladue principles should be elevated to a principle of fundamental justice (at 1). All state agencies with capacity to affect the freedom interests of Indigenous people ought to be bound by the Gladue framework. This would meaningfully address its inconsistent application and bring greater attention to the overrepresentation of Indigenous peoples in federal and provincial prisons across the country.

Moored Boat

Come next week, I will be leaving Chisasibi to head south to Val D’Or. From Val D’Or I will travel to Mistissini to continue my work as a writer for the Department of Corrections and Services (Cree Nation Government). More to come.

Miigwech,

Tim

JURISPRUDENCE

R v Gladue, Supreme Court of Canada, 1 SCR 688 (1999).

R v Ipeelee, Supreme Court of Canada, 1 SCR 433 (2012).

 

SECONDARY MATERIALS

Community History of Chisasibi produced by Jerome Morneau for use in Gladue Reports, Ministry of Justice, Québec, 2015.

Manikis, Marie. Towards Accountability and Fairness for Aboriginal People: The Recognition of Gladue as a Principle of Fundamental Justice That Applies to Prosecutors (2016).

Tungasuvvingat Inuit (TI), Gladue Primer.

Experiencing Cree Culture at a Distance

Gemma DingwallBy Gemma Dingwall

Like all interns participating in McGill’s Human Rights Internship program in 2020, what I was expecting my internship to look like this summer is certainly quite different from the reality.

This summer I am working remotely for the Department of Justice and Correctional Services of the Cree Nation. Prior to the restrictions imposed on people entering the region due to COVID-19, the plan was for me to complete my internship in one of the communities in the region. Although my work and assignments were adapted to remote work, there is one major component missing from my internship: the ability to learn and experience the Cree culture as well as the northern lifestyle. So I decided I had to do the next best thing: find ways to experience Cree culture here in Montreal.

The following is a proposed weekend itinerary of how one can learn about the way of life in the Cree Nation. I hope you join me in using some of these resources to learn more about the region.

Photo of Cree film maker Neil Diamond

Neil Diamond, originally from Waskaganish, has directed many documentary films including, Reel Injun, The Last Explorer, One More River, Heavy Metal: A Mining Disaster in Northern Quebec, Cree Spoken Here, and Inuit Cree Reconciliation.

Friday night: after a long week at work, it is time to settle in for a movie night. For this, I propose Reel Injun. This documentary focuses on the portrayal of Indigenous people in Hollywood films. It addresses stereotypes and inaccuracies in both historical and contemporary films. It is available from sundancenow.com. The film is directed by Neil Diamond, who is an award-winning filmmaker from Waskaganish, a community within the region.

Saturday morning: Time to get out of the house and enjoy the sunshine. Grab your blanket because it is time to go your nearest park and settle in with the book The Sweet Bloods of Eeyou Istchee: Stories of Diabetes and the James Bay Cree.

This is a collection of true stories about people from the region and their journeys with diabetes. These stories capture the many ways in which colonialism and changes in lifestyle have contributed to the high rates of diabetes in the Cree Nation. They trace the effects of starvation in residential school, racism within the health system, forced community relocation and the ways in which the loss of culture all contribute to diabetes. I highly recommend this book, which can be ordered from sweetbloods.org. Some of the stories are also available in audiobook for free from sweetbloods.org.

Saturday Afternoon: Whatever your favourite mode of exercise is on the weekend, why not play some tunes from Cree artists while you get your sweat on? Angel Baribeau is a musician from the region. Check out one of my favourites of their songs: SAVAGE.

Saturday Night: Time for another Neil Diamond film! The documentary, Inuit Cree Reconciliation films the Inuit and Cree coming together to celebrate 200 years of peace. The film tells stories of the violent clashes between the two groups throughout the 18th century. The film also showcases the beautiful northern landscape.

Photo of Cree artist Angel Baribeau

Angel Baribeau, originally from Mistissini, is a singer, songwriter. Their debut solo album For Those I Love(d), is set for release in 2020.

Sunday Morning: Today, we will head to a museum. The Aanischaaukamikw Cree Cultural Institute is located in Oujé-Bougoumou. This is the newest of the communities in the region, with a population of 900 people. The museum offers virtual exhibits, showcasing artifacts like a bible printed in Cree Syllabics, different furs, arrowheads, etc. There are also several short informational video clips.

Sunday Lunch: Many people in the Cree region continue to enjoy country food. In the early spring, many spend weeks in the bush hunting for goose and in the autumn, they return to the bush for moose. Fishing is a popular pastime throughout the year, including ice fishing in the winter.

Although these foods cannot be experienced in the same fresh way here, there are ways to try Indigenous food in Montreal. For example, the Roundhouse Cafe, which employs Indigenous people who have been out of work or experienced homelessness serves much of its food on bannock. Bannock is certainly popular in the Cree Nation as well. Or if you’re baker, why not try to make your own bannock – there are many recipes online. To remind yourself that in another time, you could be eating fresh fish instead for lunch, watch this video about fishing trips in the region.

Sunday Evening: Labrador tea is a plant that grows in the region but is also available for purchase in Montreal.  So why not brew a cup while you settle in to watch my final film recommendation for the weekend. Cree of James Bay documents the Hydroelectric development in James Bay and the impact on the Cree culture. I particularly enjoyed this film because of its ability to capture Cree humour.

Certainly, these virtual options are not a perfect replacement. They will not allow you to experience being surrounded by the Cree language. They will not replace the beauty of the northern landscape. They do not allow you to become accustomed to living two minutes away from everything in your community, but hours away from everything outside of the community. Nevertheless, these resources are a wonderful way to learn more about the region and the Cree way of life.

I hope you joined me in checking out some of them!

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