In the ruling in R. v. Armitage, Justice Shaun Nakatsuru took pains to avoid complicated legal language that defendant Jesse Armitage might fail to understand, saying Armitage’s aboriginal background had been a factor behind the offences he committed.
“In the Gladue court at Old City Hall, accused persons who share a proud history of the first people who lived in this nation not only have a right to be heard, but they also have a right to fully understand,” he wrote. “One important thing I must consider is the past injustices done to the aboriginal peoples in this country. How that has affected the present. How that has affected Mr. Armitage. I must also consider the present problem of the over-incarceration of aboriginal offenders.”
He added: “If I could describe Mr. Armitage as a tree, his roots remain hidden beneath the ground. I can see what he is now. I can see the trunk. I can see the leaves. But much of what he is and what has brought him before me, I cannot see. They are still buried. But I am sure that some of those roots involve his aboriginal heritage and ancestry. They help define who he is. They have been a factor in his offending. They must be taken into account in his sentencing.”
Nakatsuru had planned a non-custodial sentence for Armitage. But Armitage, rearrested for another offence before the scheduled hearing, requested that he serve the remaining nine months of his time in Ontario’s St. Lawrence Valley Correctional and Treatment Centre. “He asked for this because he wanted to be sure he had enough time in custody to fully make use of the help available,” Nakatsuru wrote. “This will be by far the longest jail term he will have done to date. To be frank, I would have considered something less.”
In its 1999 Gladue ruling, the Supreme Court of Canada said the legal system needs to take background and cultural considerations into account when sentencing aboriginal offenders, and look closely at alternatives to a custodial sentence. That spawned both the creation of specialized Gladue courts, like the one in Toronto’s Old City Hall, and of Gladue reports commissioned on behalf of aboriginal offenders who could face a custodial sentence. The changes brought some progress, although in its 2012 R. v. Ipeelee decision, the SCC complained that the promise of Gladue had not been realized, saying there were still too many aboriginal inmates in Canadian prisons.
“Armitage is a good example of what happens when you have very good counsel, you have a very committed judge, and you have a Gladue report,” says Jonathan Rudin, program director at Aboriginal Legal Services of Toronto, which has been preparing Gladue reports since 2001. In March, it won funding from Legal Aid Ontario to expand its Gladue report writing program to four more Ontario cities: Windsor, Sudbury, Sault Ste. Marie, and North Bay. “What we’ve been seeing since the Ipeelee decision a couple of years ago, is that there is more interest across Ontario and across the country in Gladue. . . . I think across the country there is a recognition that people need to do more in terms of Gladue.”
While more resources have become available, especially since Ipeelee, the application of Gladue is far from uniform across Canada and it’s never going to be possible to commission a Gladue report for every aboriginal defendant who wants one. “Because we’ve got a specialized court, and because it’s available to the clients here in Toronto there has been a movement toward a better understanding. We have judges that sit more regularly in the Gladue courts, so they are getting it,” says Shaunna Kelly, who represented Armitage and was full of praise both for Nakatsuru and Crown prosecutor Lisa Feinberg. “It’s progress because we are dealing with it and we are addressing it head on. But it’s not enough. We need more, and honestly I don’t know if it ever is going to be enough. The most we can do is work towards a wider and a broader recognition.”
Kelly, who is aboriginal, says Gladue is not about getting lower sentences for aboriginal defendants, but about how best to address the underlying issues they face, so defendants who identify themselves as aboriginal do not keep returning to court, often for minor offences. “Gladue reports take time and resources, and so they are not possible in every single case. . . . I wish we could get it for every single case, but that’s just not realistic,” she says. If there’s no report, Kelly does her own background interviews to get the information she needs to present to the court.
Ironically it may be easier to get a Gladue report in Ontario than in Manitoba or Saskatchewan, where the majority of defendants are often aboriginal. Debra Parkes, associate dean of research and graduate studies at the University of Manitoba’s law school, notes the gaps are particularly noticeable in a place like Manitoba, where the province funds Gladue components within pre-sentencing reports rather than paying for documents like the 15- to 35-page reports that Ontario’s Aboriginal Legal Services produces. A pre-sentencing report focuses on risk assessment, while a Gladue report should look at an individual’s situation “in the context of systemic discrimination,” she says.
“The reality is that there are huge gaps and problems with the implementation of Gladue and there have been from the beginning,” she says. “The run-of-the-mill everyday case in Manitoba is a Gladue case and yet we don’t have meaningful submissions before the court about Gladue and the factors that have affected this individual and what it is possible to do in terms of a sentence that might actually address the issue, do something different and break the cycle of criminalization and incarceration.”
While a lack of resources is a problem, it’s up to both lawyers and judges to do a better job, says Parkes. “Even if you don’t get a Gladue report, counsel could and should be properly interviewing their clients, contacting other people and putting that [information] before the court in the form of a submission. And what I’m hearing from judges is that that’s just not there. It’s a very cursory sort of thing, and it’s often very superficial.”
Rudin agrees that both funding and legal attitudes are important. “Gladue and Ipeelee are not self-executing decisions. They say judges need the information, but they don’t say where judges are going to get the information, and I think for a long time there has been a reluctance on the part of government and other funding agencies to really want to make changes to the way information is gathered,” he says. “There is the role of the reports, but there is also the role of counsel. . . . I think lawyers need to learn more about the realities of aboriginal people in Canada. They should learn more about the resources in their community so they can make intelligent and substantive submissions.”