Nunavut’s Gladue dilemma

It’s been 27 years since the Supreme Court of Canada’s landmark decision in Gladue required judges to consider the unique, systemic, and historical background of Indigenous offenders during sentencing.

The decision was intended to address the over-incarceration of Indigenous Peoples in Canada’s prisons.

But what effect has the case had in areas of the country where most people are Indigenous? Or in instances where the accused and the victim are Indigenous and equally affected by Gladue factors? How do trial judges find a balance between reducing over-incarceration and protecting victims of gender-based and intimate partner violence?

In places like Nunavut, where 85 per cent of the population is Inuit, the impact of Gladue has been mixed. 

“In terms of incarceration rates for Inuit men between 18 and 35, Gladue is a failure,” Justice Neil Sharkey, the former chief justice of the Nunavut Court of Justice, tells host Alison Crawford in the latest episode of Verdicts & Voices. 

He says the considerations stemming from the case haven’t done enough to reduce the number of Inuit men in prisons. As for public perception and acceptance in Nunavut, it’s “problematic.”

“Nunavummiut, they embrace rehabilitation. They know about the futility of jail in terms of reducing crime. But they have little tolerance for what they perceive as lenient sentences based on Gladue principles,” Sharkey says.

Where the rubber hits the road

Qajaq Robinson, a commissioner for the National Inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG), says when she reflects on Gladue, she can't help but also reflect on where Nunavut was at the time. The decision came in 1999, the same year it became an official territory.

She says the lived experiences of Inuit being coercively forced into settlements with police, churches, and a colonial criminal justice system are a relatively new phenomenon.

“The key element of why I think we have to look at things through an Inuit lens is because the history for Inuit and Inuit Nunangat is a unique and more dramatic change that's in a very recent history,” Robinson says.

“You can't look at the rates of crime and addiction without looking at poverty, without looking at the social upheaval that was caused.”

Where it becomes a problem is when Indigenous women are the victims of violence, she says.

Sharkey agrees.

“I think where the rubber really hits the road is where we have gender-based violence, and we have to wrestle with applying Gladue principles.”

Women in Nunavut report being the victims of violent crime at a rate 13 times higher than women in the rest of Canada. This includes intimate partner violence, sexual violence, and assaults that cause harm.

In December of last year, the Supreme Court of Canada heard the case of  R. v. Cope. It involved an Indigenous man from Nova Scotia with a long criminal record who was appealing a five-year sentence for violently attacking his Indigenous partner. At issue was whether the sentencing judge had properly considered the Gladue factors.

Robinson is glad the Supreme Court is having to wrestle with the issue, as she doesn’t think Gladue garners enough consideration through the lens of Indigenous women who are victims of gender violence at the hands of Indigenous men.

“I'm hoping this next decision forces us to look at the experience of Indigenous women, Indigenous victims of violence, (and) ultimately forces us to look more deeply at confronting these issues in a systemic way and push for implementation of the calls for justice,” she says.

Devaluing women?

During the MMIWG inquiry, Robinson heard from the families of survivors and experts who struggled with the idea that the moral culpability of offenders is lessened through Gladue.

“Responsibility and accountability remain important. It remains essential,” she says.

“When we look at violence against Indigenous women, and (we) somehow hold those responsible for it as less responsible, it is definitely seen as devaluing those women.”

Furthermore, in areas like Nunavut, there isn’t sufficient infrastructure to support the alternative rehabilitation measures encouraged in Gladue.

“We can have thoughtful reports. We can have thoughtful judges. But without the measures in place, whether it's in institutions, jails, prisons, or within the community to meaningfully address these issues, what judges engage in is a paper exercise,” Robinson says.

The end result is business as usual — jail or no jail. But there has to be more than that.

“In terms of what it will actually mean to reduce rates of incarceration, reduce recidivism, increase safety and security for Indigenous women and girls and gender diverse peoples, it will not materially change people's lives absent the infrastructure [and] the intervention mechanisms.”

That said, there has been some success around Gladue in Nunavut, as Sharkey says it’s been an effective wake-up call for judges. Unfortunately, they run up against a lack of available alternative measures when they hand down sentences, including access to rehabilitative resources and programs, especially in remote regions of the territory.

Still, some communities endeavour to make it work. Many have elders sitting with the court, and before an accused person is sentenced, judges will ask the elder if they have anything to say to the offender.

“A lot of people say, ‘that's just tokenism,’ but it isn't tokenism. I've watched men, 35 and 40 years old, break down and cry when they were spoken to by the elder,” Sharkey says.

“That's why I wanted to get onto this notion of a positive Gladue legacy, and that's Gladue as a wake-up call. It's told us as judges to pay attention to the individual stories of Indigenous offenders. This is important because it deals with their dignity when they're before the court.”

Listen to the full episode to hear more from Robinson and Justice Sharkey about how the use of Gladue in sentencing can be improved.