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Can We Do Gladue?

Friday March 7, 2014

Stop me if you’ve heard this before, Your Honour.

Actually, don’t. We’ve been saying it and hearing it for 15 years now, but do we know what Gladue really means?

Of course, it’s the name of a case decided by the Supreme Court of Canada, back in 1999.
Wasn’t that when our nine red-robed bosses down in Ottawa told us that we all had to do our jobs differently, when it came to Aboriginal people?

Wasn’t that when they ordered us to accept that our ideas of fairness and equality, those ingredients of Western justice that we know and love so much, were actually backfiring, were actually contributing to the crisis of Aboriginal over-representation in jails and prisoners’ boxes?

Wasn’t Gladue supposed to be a turning point, an a-ha moment, a chance for our systems to change in the face of how much harm their arrogance had caused?

Well, Your Honour, I am sad to say that we seem not to have listened very well, not then and not now.

That word is still spoken every day, in courts across the land, and yet, for all the good Gladue has done in reducing the rate at which we send the Anishinabek to prison, it may never have been uttered. Those rates are still climbing.

Words alone have no magic, Your Honour. And we can honestly say that we are not the only ones who have failed to live up to the promises that our lawmakers have made to the people of the Nishnawbe-Aski Nation.

We just keep doing our jobs, fair as can be, keep scratching our heads at the statistics that show ever higher proportions of Aboriginals in prison. The real culprits lie elsewhere, we could say, and earlier; in broken relationships and twisted education; in epidemic addictions and insufficient compassion; in predatory economic and cultural practices that have whisked wealth and wholeness out from under the feet of people who stand on land that is no longer called theirs.

We could maintain, righteously enough, that our jailhouses are only built at the ends of long roads.

But what seems an end may also be a beginning; Your Honour’s judgments, for good or ill, are also prophesies of what may yet be.

This continuing circle is recognized in the Anishinabe worldview, but it is also sadly evident in our courtrooms’ revolving doors.

Gladue is a promise to know this; to allow both the positive and negative aspects of this powerful cycle, this complete interrelation of factors and forces, to deeply sink into and fundamentally change the way we do this difficult business.

We both know, Your Honour, that our region is not getting the resources it needs to allow more than the slightest echoes of this promise to be heard.

One of the major (but not only) places where Gladue principles are applied is during the sentencing phase, where a court must consider all of the background and systemic reasons why an Anishinabe person is standing guilty of a crime before it, standing at the entrance of a jailhouse door. But even getting such information is an ordeal, let alone resolving how to justly deal with it.

While urban centres like Toronto have dedicated Gladue workers, and even a whole Gladue Court, to unveil and assess the realities behind an Aboriginal person’s wrongdoing, the courts in our region trudge along without this guidance, without this focus.

Why? Why, when by rights and numbers almost all of the courts in NAN should be dedicated to truly doing Gladue?

Perhaps it is because there is a cynicism that threatens all of us in the Western legal system, its architects and enforcers as much as the public it presumes to serve.

Certainly, our courtrooms and jailhouses are built to house the hardest of issues; anger, violence, poverty and despair are everyday stuff for us, and it is understandable that we find some feelings of protection or control in thick walls, strict laws.

But maybe we are masking a great fear, a great mistrust in our own, and the Anishinabek’s, capacity to rise to the full challenge and promise that Gladue offers. It is certain enough that, when we focus mainly on badness, there is very little space for goodness to grow.
I admit that this cynicism plagues me as well. It is easiest to blame our punitive responses to crime on the ‘bad’ Anishinabe before the court, the one who steals from family, who hurts his spouse and children, who repeats his ugly patterns when eventually released.

It is hardest to believe that this maligned person, this fractured family, this community that bears so many wounds and burdens, are actually the best and only keys we have to unlocking Gladue’s full potential.

But there is simply no other truth that I can see, Your Honour. And it is a truth that is beginning to flourish in other parts of this country: in B.C., for example, a First Nations Court harnesses traditional wisdom, modern supports, and universal compassion to help Aboriginal people break free from the prison/crime cycle. It makes a special effort to acquire the information that Gladue requires all courts to consider, to be sure, but much more importantly, it approaches the job of doing justice in a wholly different way.

I have seen this work in action, and it has opened my heart. There are necessary lessons here, and we are but beginner students.

But if we put the Grandfathers first, learn how their teachings can help melt our fear and cynicism, and join our voices in a call for fundamental change, there is no reason why we cannot equally begin, as we must, to truly do Gladue in the Nishnawbe-Aski Nation.

Have a question for our columnist related to law issues in northern Ontario? E-mail him at: smowen@tbaytel.net

Simon Owen is a lawyer at Beamish and Associates in Sioux Lookout, and practices primarily in the areas of criminal defence law and community justice initiatives.

Most of the people and communities he serves are members of the Nishnawbe-Aski Nation, who continually inspire and challenge him to find justice both within and beyond (or in spite of) the Canadian court system.

Simon holds law degrees from the University of Victoria and the University of British Columbia, where his thesis work focused on moral and cultural communication in sentencing.
These columns represent the personal views of the author alone, and not of any organization that he may be associated with.

Nothing in these columns should be taken as legal advice; please consult a properly instructed lawyer for any legal issues you may have.

Some names and details in these columns may be modified to protect confidentiality.

Finally, the author is not Anishinaabe, and this column is not intended to explain or interpret any Anishinaabe words, concepts, or principles. The author humbly apologizes for any errors or misunderstandings that he may make when referring to Indigenous ideas.


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