PART 13
December 19, 2008 Ottawa Sun
By MARK BONOKOSKI, Sun Media
Friday morning, Courtroom 126, Aboriginal Persons Court, better known as Gladue Court, named after a Supreme Court judgment regarding a Cree woman on Vancouver Island who ran a knife through her cheating fiance’s heart.
On this day, it is Provincial Court Judge Patrick Sheppard who is presiding, he being a Toronto alderman back in the days when David Crombie was mayor, and today one of the judicial instigators who, along with Gladue Court overseer, Judge Brent Knazan, got this ethno-specific court up-and-running six years ago this month.
The docket, in total, is seven pages long.
A 26-year-old Native woman, a single mother of two, stands guilty of child abandonment when, back in September 2007, she left her children alone in her apartment while she went out to “socialize” — and, according to the court record, spent the night “consuming significant amounts of alcohol.”
Her children, ages 7 and 4, eventually went out to find her, and were picked up by police as they wandered the streets.
When finally located, the woman took it out on the children — was “rude,” “insensitive,” and “angry,” the court was told — for bringing the cops down on her. After sobering up in jail overnight, and facing the first criminal charge in her life, she also woke up to find her children had been seized by the children’s aid, unaware that it would take her almost three months to get them back.
Now it was time to pay the piper for what the woman admittedly called “the biggest mistake in my life.”
Jail, or no jail?
In a long and well-thought judgment, Judge Sheppard cited the Supreme Court’s Gladue decision numerous times, and how First Nations people are “over-incarcerated,” how “all things are inter-related,” and how “restorative justice” must be considered when it comes to aboriginal offenders.
“Jail does not aid the healing,” he says. “Is it not better that the children have their mother?”
In the end, after citing what the woman had already lost because of her “mistake” — her children for three months, a semester in educational upgrade, her home in a transition house, her freedom from random alcohol and drug testing (as part of her bail conditions), and her dignity from spending a night in jail with the potential of having a criminal record — Judge Sheppard gave her a conditional sentence, with 18 months of strict probationary requirements.
“You suffered in very many ways from your actions that night,” he told her. “You should not have to suffer anymore.”
And, with that, he cut her loose.
“There was no question she was feeling a great deal of remorse,” he would later say. “It was obvious.”
She was, in fact, in tears when she left the courtroom.
But she was also very grateful.
If there is a benchmark in the criminal code when it comes to aboriginal sentencing, it is in Section 718, on the principles behind imposing jail time.
And one paragraph, in particular, stands out.
“All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders,” it reads ... “with particular attention to the circumstances of aboriginal offenders.”
That paragraph came as an amendment to the criminal code only in 1997. Two years later, the Gladue judgment was handed down, reminding prosecutors and judges to read the not-so-fine print a little closer.
“Any idiot of a judge should be able to read Gladue and be able not to make a mistake,” Sheppard said later in chambers. “It is written that clearly.
“But none of us — or at least very few of us — were taking Gladue into consideration, at least at a human level.
“Something had to be done.”
According to Sheppard, it was a convention in Ottawa of the Canadian Association of Provincial Court Judges back in 2001, and particularly a speech by then First Nations National Chief Phil Fontaine, that planted the seed for the need for what would become Gladue Court.
“Chief Fontaine told us his life story, and it obviously had an effect on us,” said Sheppard. “I remember a bunch of us going to a restaurant in Ottawa’s west end — the Jupiter — and discussing what had to be done.”
One of those judges was Brent Knazan, now the over-all administrator of the court.
“What we needed was factual information on the aboriginal offender. We needed a historical perspective on the system — from the residential schools, to you-name-it. And we needed to know, for a certainty, all the factors that come into play,” he said.
One of those factors, often either ignored or not considered at all, is fetal alcohol syndrome.
“I would think that at least one in four of the accused who come before this court, a full 25%, suffer from fetal alcohol syndrome,” said Sheppard. “There are a lot of red flags, of course, like when an accused says his or her mother drank all the time throughout her pregnancy.
“But it is difficult to get a diagnosis.”
There is, in fact, only two fetal alcohol syndrome clinics for adult diagnosis in Toronto — one at St. Michael’s Hospital, and the other at St. Joseph’s Hospital.
At this moment, however, the earliest appointment that can be made for a diagnostic assessment at St. Mike’s, for the umbrella of “fetal alcohol spectrum disorder,” is the end of April of next year.
“How does that service justice?” asked Sheppard. “The true exercise of this court is to move juris prudence along.
“But to wait months on end for a diagnosis that is so critical? How does that help — especially when the numbers are so large?”
***
Out of all the domestic violence issues that routinely plague Native lives across this country — with alcohol the predominate accelerant — it was the 1996 stabbing death of Reuben Beaver by his fiance, Jamie Gladue, that did more for aboriginal justice in Canadian courtrooms than any other modern-times event.
Gladue courtrooms exist today because of Reuben Beaver’s death, and because of the way the court at the time treated Jamie Gladue.
Gladue, a pregnant Cree woman, while celebrating her 19th birthday in a booze-induced haze — her blood-alcohol levels pushing twice the legal limit — stabbed Reuben Beaver after confronting him in a rage about having an affair with her sister.
After he called her “fat and no good,” she stabbed him once in the arm with a paring knife and, then, when he tried to escape, she took a larger knife and drove it into his chest, after which she jumped up and down in triumph over his bleeding-out body, yelling, “I got you, you bastard.”
She pleaded guilty to manslaughter 17 months later and was sentenced to three years in prison, with the judge stating her aboriginal status and circumstances equated to nothing because she lived off-reserve in the urban centre of Nanaimo, B.C.
And that, despite her obvious guilt, was the hook for an appeal.
While the Supreme Court of Canada did not alter the length of Gladue’s sentence — although she was freed after six months and hooked up to an electronic monitor — it did take issue with the sentencing judge’s conclusion that Gladue’s Native heritage merited no special consideration.
This ruling took a great deal of heat from the public, and from editorialists, for the proposed creation of a two-tiered justice system — one for Natives, and one for the rest of Canadians — and for the Supreme Court’s opinion that, “in light of the tragic history of the treatment of aboriginal peoples within the Canadian criminal justice system,” too many aboriginals are being needlessly imprisoned.
One opinion writer called the ruling “breathtaking.”
“Too many Natives are in jail, so we must stop putting them there,” she wrote. “This is almost as ridiculous as saying there are too many elderly people in hospitals.”
There are, in fact, a disproportionate number of Native Canadians in jail, especially considering they represent 4% of the population but 22% of prison inmates.
By 2005, the so-called “Gladue principles” had taken root in the judicial psyche— so much so that the Ontario Court of Appeal ruled that they must be applied, as well, to Native offenders found not criminally responsible (NCR) for their crimes, or mentally unfit to stand trial.
Back in 2006, however, federal Corrections ombudsman Howard Sapers, in his annual report, claimed aboriginal offenders were still being routinely discriminated against by the corrections system, and were far less likely to get parole or be rehabilitated by their experiences in jail.
The challenges faced by aboriginal people in Canadian jails amounts to “a national disgrace,” he said.
“Despite years of task force reports, internal reviews, national strategies, partnership agreements and action plans, there has been no measurable improvements in the conditions for aboriginal offenders during the last 20 years,” Sapers told a news conference in Ottawa.
He said the overall incarceration rate for aboriginal Canadians was nine times higher than for the population at large, and that the situation was even worse for aboriginal women.
One in three inmates in federally-run women’s prisons were aboriginal, he said, with almost half of them in maximum-security institutions.
Sapers’ investigation also revealed a “routine overclassification” of Native prisoners, who were far more likely to be sent to maximum security prison than offenders from other backgrounds.
“That means they often serve their sentences away from family, community, their friends and elders,” Sapers said, “They are sent into segregation more often ... severely limiting access to rehabilitative programs and services that are intended to prepare them for their release.”
Parole is routinely denied or revoked, often on technical grounds, said Sapers, and then he pushed for the federal government to address the situation urgently with new programs, more resources, and more consultations with aboriginal leaders and communities.
While Public Safety Minister Stockwell Day said he would “consider” the findings of Sapers’ report, he also stated there was no evidence of systemic discrimination against Native offenders in the prison system.
The statistics, though, and the realities behind them, speak otherwise.
Despite the initial perception by opinion makers back in the late ’90s, and the supposed hell path that the Supreme Court’s ruling would create, Toronto’s Gladue courts — now also taking reports in the Hamilton and Brantford areas — do not randomly dish out “get-out-of-jail free” cards to Native offenders.
The vetting of Native offenders, and their backgrounds, in fact, is more in-depth and pro-active than likely any other provincial courtroom scenario in the country.
Aboriginal Legal Services of Toronto, in fact, has three staff members — Gladue caseworkers — who write reports at the request of defence counsel, the Crown, and even the judge, on the life circumstances of the aboriginal offender.
These reports also contain recommendations for the court’s consideration during sentencing, with the caseworkers, all Native, having a veritable Rolodex of contacts and Native agencies at their fingertips.
Lawyer Jonathan Rudin is the Gladue court’s program director.
As he put it, “Gladue provides an opportunity to take some meaningful steps to counter the increasing reliance on incarceration as the response of choice to the sentencing of aboriginal offenders.
“In order to make the promise real, however, sentencing judges must be presented with realistic assessments of offenders and of non-jail community options,” said Rudin.
In other words, no smoke, no mirrors and no exaggerations.
Just the facts, and the realities.
Tomorrow: Don’t drink the water