The justice system fails aboriginal people and proof of the failure confronts judges at every sentencing hearing, judges and law professors from the Yukon, Ontario and Manitoba concluded Thursday in Winnipeg.
Implementing Gladue: Law and Policy 20 years after the Aboriginal Justice Inquiry, offered a critical post-mortem look at what those changes might mean.
Incarceration rates of aboriginal people have nearly doubled in the 20 years since the Aboriginal Justice Inquiry.
The courts tried to ease the crisis but the situation is even worse today.
In 1999, the Supreme Court of Canada set out new guidelines in the landmark Gladue decision.
It called for courts to take to take into account aboriginal offenders’ unique circumstances and offer alternatives to prison.
There was a problem though. And it remains a major stumbling block.
"Gladue came out and said to do things differently but it didn’t tell you how to do things differently," said Jonathan Rudin, a director of Aboriginal Legal Services, the agency that won intervenor status before the Supreme Court to argue for the land mark decision.
In Toronto, five Gladue courts are up and running, said Rudin.
The courts hand out about 1,000 sentences a year for almost every crime except murder.
But judges and lawyer had to change their attitudes about law and aboriginal people.
Judges now take into account the personal history of offenders along with their criminal records. And they tailor sentences to fit them.
That’s true in the Yukon, too.
"You have to develop processes to help people change, rather than warehousing people in jail. It’s about the mindset. It’s about working for change and being willing to change yourself. There is no magic bullet," said Chief Judge Karen Ruddy of the Territorial Court of Yukon.
Ninety-five per cent of offenders have substance abuse histories, mental illnesses and cognitive problems like FASD,
A typical sentence is 18-24 months in a strictly monitored treatment program. There are court appearance every two weeks and a traditional aboriginal clan system to keep the offender in line.
The changes work, in part, due to Whitehorse’s size.
"Whitehorse is a small town. You can’t go very far without tripping over someone you’ve sent to jail," Ruddy said.
Most everywhere else, the situation is only getting worse.
Nearly one in every five inmates (18 per cent) behind bars is aboriginal, according to federal statistics in 2009.
In 1999, a decade after the AJI, aboriginal inmates in federal and provincial correctional facilities had risen to 13 per cent.
The province’s top provincial court judge said Manitoba’s soaring aboriginal crime are deeply rooted in social problems.
It will take changes in the court system and every other sector, the top Manitoba provincial court judge said.
"Do we need to create a specialized Gladue court in Manitoba? We may need to do that here. But it’s not going to be easy," Chief Judge Ken Champagne of Manitoba’s Provincial Court said.
"Poverty is the biggest issue for aboriginal people in Manitoba. Is a Gladue court going to be able to address that? You also need a lot of resources at the front end: in education, training and social services," Champagne said.