The Toronto Star by Elizabeth Sheehy and Isabel Grant 27 April 2015
Amid public outrage about the death of Cindy Gladue, a young Indigenous woman, and the failure of the criminal justice system to hold the john who apparently caused her death accountable, the Harper government has quietly taken steps to undo the progress achieved in the name of another Gladue woman.
In yet another “war on crime” proposal, Bill C-32 would chip away at “Gladue principles,” named after Jamie Gladue, a 19-year-old Indigenous woman — mother of one child, pregnant with another — who killed her abusive male partner.
In her 1999 case, the Supreme Court held that the Criminal Code requires judges to consider sentencing options other than jail, particularly for Indigenous offenders. Although Jamie Gladue’s sentence for manslaughter was not mitigated by her partner’s battering, or the history of colonization that brought her to that fatal encounter, her case opened the door to considering systemic discrimination in sentencing Indigenous offenders.
These two Gladue cases illustrate the degree to which Indigenous women are both over-victimized and over-criminalized. The government’s attempt to retreat from the small gains made in responding to such over-incarceration reflects an agenda denying Canada’s role in the devastation, past and present, wreaked upon the original peoples.
In 1996, Canada reformed the principles of sentencing to respond to the gross overrepresentation of Indigenous people in prisons. The Liberal minister of justice explained: “Nationally aboriginal persons represent about 2 per cent of Canada’s population, but they represent 10.6 per cent of persons in prison. Obviously there’s a problem here.” The Supreme Court in Jamie Gladue’s case therefore instructed lower courts to consider the unique systemic and background factors that bring Indigenous offenders before the courts and to consider sentences other than imprisonment.
More than a decade later, in a separate case, the Supreme Court sharply reminded judges that Gladue principles are not discretionary. In every case judges must consider the history of “colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration.” The Court lamented that rates of over-incarceration have continued to climb despite its efforts in Gladue.
More needs to be done — not less. Yet the Harper government responds by undermining the very provision that required judges to acknowledge and respond to the crushing over-incarceration of Indigenous people. Under C-32, judges need only consider sanctions other than jail if they are “reasonable in the circumstances and consistent with the harm done to victims or to the community.”
It could be argued that this doesn’t change much. Judges were already required by the Criminal Code to consider harm to victims and were imposing sentences they thought were reasonable. But when Parliament changes a legislative provision, courts are required to give meaning to the intention behind the change. Here, the intent is clearly to limit the ameliorative purpose of this provision.
This amendment seeks to fix a non-existent problem. There is no indication that Gladue was resulting in unduly lenient sentences for Indigenous offenders or in a judicial failure to consider victims. Instead, Indigenous offenders — and most dramatically Indigenous women — continue to be disproportionately affected by this government’s increased use of mandatory minimums and the erosion of conditional sentences for community-based sentencing where there is no risk to the public.
While Bill C-32 seeks to fix a nonexistent problem, this government has rejected national and international calls for an inquiry into what is a well-documented human disaster: missing and murdered Indigenous women. Harper has steadfastly refused to acknowledge that male violence against Indigenous women is rooted in our colonial history and our continuing practices of destruction of Indigenous lands, communities and authority.
Canadians must know that there can be no justice for Cindy Gladue without justice for women like Jamie Gladue. The overwhelming majority of imprisoned Indigenous women are there because they have been brutalized, and the acute vulnerability of Indigenous women to male violence is in turn predicated on their status as criminalized, homeless and stateless in Canadian society.
We can only hope that the courts will reject attempts to whittle away the only provision in the Criminal Code that acknowledges the crisis of over-incarceration of Indigenous women and men. It’s too late to help Cindy or Jamie, but we must refuse to abandon more Indigenous persons to the grave or to prison.
Elizabeth Sheehy is Vice-Dean of Research and Shirley Greenberg Professor of Women and the Legal Profession at the Faculty of Law, University of Ottawa. Isabel Grant is a professor at the Allard School of Law, University of British Columbia, specializing in criminal law.