Travels Following Chisasibi

Timothy ParrBy Tim Parr

August 4th, 2021. My time in Chisasibi came to an end after a week. Mid-afternoon, I was back on a Dash 8-300 and bound for Val D’Or, Québec. I spent the night in Val D’Or for the purpose of meeting with a lawyer who works for the Cree Justice and Correctional Services Department and knows a lot about the Gladue process the next day.

Upon arrival, I took to the streets to explore. A particular scene struck me while I walked Val D’Or. Cadets, young officers in training, were handing out tickets to Indigenous people gathered in the parks, seemingly for loitering or vagrancy.

From the North

With so much talk of reconciliation, it is strange that future law enforcement agents should continue to be a part of such a relationship. Later, I mentioned this in passing to one of my supervisors who commented specifically on the practice of “Moonlighting,” wherein the police pick up an Indigenous person (most likely Cree), who is perhaps homeless or disturbing the peace, and brings them far outside the city by car and drops them off. In the winter, the consequences are dire. People freeze to death.

Travelling approximately four hours by car from Val D’Or to Chibougamau the scarcity of the land is readily observable. Unprepared, the land can be cruel. Communities are far from one another. Moonlighting is an example of how institutional racism manifests, how deeply it is entrenched and how problematic the Québec government’s reluctance to acknowledge systemic racism is, as well.

The lingering effects of colonialism were palpable in Val D’Or. The Cree are punished by the state of Québec even though they were dispossessed of their land.

Teepee by the Water

One solution to Moonlighting is to diversify the local police force. Increase the number of Cree officers. However, my supervisor explained the challenges to this. Certain physical requirements exist which prevent Crees from becoming police officers. The result is outsiders policing the communities, which presents its own challenges. Notable is the ability to understand cultural differences.

During my two weeks up North, I had the opportunity to visit three of the nine communities (Chisasibi, Mistissini and Oujé-Bougoumou) in Eeyou Istchee territory. The level of difference is subtle but significant. Chisasibi is pronounced differently in the Southern communities than it is up North. Dialects vary as do techniques for cooking and hunting. From my understanding, this seems to be influenced in part by the differences between coastal and in-land lifestyles; it would only be by spending more time in the communities that one could truly begin to appreciate and understand the complexities of this. The takeaway is that police officers, especially if they are outsiders, need to be trained to be cognizant of cultural difference or understand what scholars refer to as, cultural relativism.

Culture must be understood within its own localized setting or context. On its own terms. For instance, healthcare providers are increasingly obligated to undergo training which sensitizes them to these issues. Patients are gradually feeling the effects of this tailored approach. This gradually repairs the damage done to visible minority populations. These measures should extend to neutral agents of the justice system. The roots of prejudicial attitudes require exposure and redress.

The Strays of Mistissini

From Val D’Or, I left for Mistissini, passing through Chibougamau. I spent the remainder of my time North at the Lakeview Hotel, overlooking Lake Mistissini. I try not to romanticize the land, but Lake Mistissini is a treasure.

The Treasure, Lake Mistissini

It is the largest source (lake) of fresh water in Québec and is filled with Northern Pike and Walleye. It is a festive place. While I was at the hotel, the Cree celebrated Mistissini and engaged in portages and canoe rallies and other physical feats. Fishing competitions were going on. One young woman apparently won $20 000 for catching a pike.

The Lakeview Hotel

The Cree were incredibly hospitable. Very generous and kind. I made friends and was invited to have supper with a family twice. The food was delicious. I tried goose for the first time, a meal which holds an important place in Cree culture.

Stained Glass in the Cultural Centre in Oujé

It was good (perhaps comparable to turkey) and came with the caveat, “watch out for the pellets.” These are the quiet, fleeting moments that one remembers and cherishes.

Through the Trees and Towards Lake Opemisca

The Gladue process is confidential, so I will avoid going into detail on this subject. My weekdays in Mistissini were spent working out of the Justice building, conducting research and completing preparatory tasks. The Justice buildings, like several of the other buildings in the communities, are freshly renovated. Being in the buildings gave me the opportunity to understand how the Justice and Corrections Department operates (e.g., the people involved and their roles). I communicated with several of the employees to develop a healing plan for my client. This also involved contacting Cree Mental Health Services (Maanuuhiikuu).

Having spent six nights in Mistissini, my trip North was winding down. On my last day at the office, my supervisor asked me if I would participate in a podcast with him. I said, yes (my first podcast). The questions pertained to my experience at law school, in the North and my thoughts on Gladue. It should be available in the coming weeks.

Prior to boarding the Dash 8-3000 for Montreal from Chibougamau, I made a quick visit to Oujé-Bougoumou, also known as the place where people gather. I was encouraged to visit the Aanischaaukamikw Cree Cultural Institute.

The Aanischaaukamikw Cree Cultural Institute

At the institute, the law student in me was drawn to what appears to be the original James Bay and Northern Québec Agreement (JBNQA), signed in 1975 and displayed as one of the exhibits. During my first conversation with my supervisor, he pointed to the document’s importance for the Cree and noted that it is constitutionally protected.

The James Bay and Northern Québec Agreement (JBNQA)

Section 18 of the JBNQA is a particularly relevant section. It concerns the administration of justice and sets out inter alia that “[T]he Minister of Justice of Québec shall not effect any changes to the territorial limits of the “judicial district of Abitibi” without consulting the local authorities of Cree communities that would be affected by any such changes” (s 18.0.4) and the “Justice of the peace, preferably Crees, are appointed in order to deal with infractions to by-laws adopted by Cree local authorities and other offences contemplated in section 107 of the Indian Act. These appointments are subject to the approval of the interested Cree local authority” (s 18.0.9). S 18 has many purposes.

In one sense, s 18 is designed to ensure that Crees are involved in the administration of justice and that the administration of justice is consistent with the customs, usages and ways of life of the Cree.

Exhibits from the Institute

The JBNQA is a crucial source of legal rights for the Cree, but for some it may be interpreted or perceived as a form of compromise. The Crees are not wholly independent of the Québec and Canadian courts. Western norms encroach upon the Cree approach to justice. The foreseeable future has the Cree pursuing greater independence. Federal and provincial courts will do well to respect this direction, a vital aspect of meaningful reconciliation.

Exhibits from the Institute

My time in the North and working remotely for the Cree was rewarding and challenging. I am grateful to all the people who helped me over the summer and the Human Rights Internship Program for providing me with the opportunity. I hope I can take what I learnt over the summer and apply it in the future to help those in need. I would return North in a heartbeat.

The Shores of Lake Opemisca in Oujé

Miigwech,

Tim Parr

SECONDARY MATERIALS

Dell’Osso, Daniel. ”Cultural Sensitivity in Healthcare: The New Modern Day Medicine” (2016) Senior Thesis 58 at 6.

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.

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