Indigenous jail rates criticized

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This article was published 27/11/2017 (1950 days ago), so information in it may no longer be current.

OTTAWA — Criminal justice advocates say the federal and provincial governments have failed to honour a Supreme Court ruling aimed at stemming the disproportionately high rate of incarceration among Indigenous Peoples.

In a 1999 case called Gladue, the Supreme Court forced judges to consider intergeneration trauma when doling out sentences to Indigenous offenders, as well as any community-led rehabilitation tied to their community.

Defence lawyers often invoke these rights by asking for a Gladue report. Specially trained people interview the offender and research their background to detail family history, often including residential schools, foster care and substance abuse.

John Hutton, Manitoba head of the John Howard Society, said Gladue rights are intended to help a judge consider Indigenous offenders’ upbringings, and how much time behind bars would help rehabilitate someone.

Often, the Gladue reports still result in jail time, but a lower sentence that is split with community work or probation. Yet, the way Manitoba assembles Gladue reports means offenders are instead spending years in jails, surrounded by criminals and increasing their chances of reoffending once they get out.

“Jails have almost become the new residential schools because people are taken out of their community to serve elsewhere — and they don’t necessarily go back,” Hutton said.

Scott Newman, a spokesman for the Criminal Defence Lawyers Association of Manitoba, said invoking Gladue rights can often backfire because of a provincial policy in which Manitoba probation officers write both the Gladue report and the pre-sentence report, which includes an assessment of the offender’s risk of committing another crime.

“A lot of the factors that we see affecting Aboriginal people, like addictions, like poverty, like homelessness, are the same factors that keep them locked up in jail,” Newman said. “A lot of people don’t understand the costs of incarceration.”

The only way to get a Gladue report completed without being tied to a pre-sentence report is to pay a private Gladue writer, which generally costs $500 to $1,000. Legal Aid Manitoba generally only pays for private reports if the judge or defence lawyer find serious faults, such as key facts that are incorrect or omitted.

In 2014, Probation Services submitted 1,094 Gladue reports, up from 288 in 2011.

But the province no longer tracks how often Gladue rights are invoked, how many Gladue reports the Manitoba government has paid for, or how often those reports have been rejected. The federal government also doesn’t track these data.

After Manitoba appeal judges caught probation officers lifting excerpts from Wikipedia pages, the province ordered a review of how its staff create a Gladue report. An October 2013 guide now outlines how to properly write reports, and lets offenders suggest alternatives to jail or programs that may help them behind bars.

“The judiciary and other justice stakeholders have shared with us that they are generally very satisfied with these reports,” wrote a spokeswoman for Manitoba Justice.

Newman says the quality of Gladue reports has improved, and he cited a handful of Manitoba court cases in which judges have ignored the risk-assessment component of a pre-sentence report when it conflicts with Gladue principles.

However, Winnipeg defence lawyer Zilla Jones said that’s not enough. She unsuccessfully tried this year to get the Supreme Court to clarify rules around Gladue rights. This month, the court rejected her application.

Jones cited the long delays in getting reports — the provincial timelines are five weeks for individuals in custody, and nine to 12 weeks for those out on bail, but they’re not always followed.

She has come across judges who don’t realize defence lawyers can introduce Gladue factors by reading a family history to the court, thus avoiding a pre-sentence report. Often times, lawyers will simply toss out the Gladue report out of fear the accompanying risk assessment will lead to a longer sentence.

“There are some holes in how Gladue is applied,” Jones said. “Often times… this Gladue report, which is supposed to help a person, is now hurting a person.”

She pointed to a 2012 Supreme Court ruling, expressing alarm the 1999 Gladue case “has not had a discernible impact on the over-representation of Aboriginal people in the criminal justice system.”

A month ago, the federal jails investigator Ivan Zinger said Ottawa hasn’t made any concrete progress in bridging that gap.

“It is extraordinary, and for me the No. 1 human-rights issue in Canada, that the incarceration rate for Indigenous people keeps climbing, year after year, unrelentlessly.”

In an email, Justice Minister Jody Wilson-Raybould said the federal government was “working very hard” to address the over-representation of Indigenous people in jails, with Gladue reports being one tool to use.

“There are no national standards on the preparation of Gladue reports. Different jurisdictions are using different approaches,” she wrote, acknowledging some provinces bundled them with pre-sentence reports.

She noted two federal programs have funded “culturally competent services” in various provinces, including training judges and lawyers about Gladue principles and reports. She also provided a 2013 department report which assessed all provinces and territories except Manitoba and Quebec.

Liberal MP Robert-Falcon Ouellette, who represents Winnipeg Centre, said his government is trying to reform the justice system, but said it could take years.

He recalls a visit last winter to Stony Mountain Institution, the federal jail north of Winnipeg. The maximum-security section seemed almost entirely full of Indigenous people. Almost no programming is offered to prisoners in that section, where guards frequently yell at inmates to stop acting up.

“Once they’ve learned how to control themselves… they’re moved out into a more medium-security situation, where there’s more training.”

Ouellette sees a parallel in how slowly the 1999 Gladue ruling has been applied.

“You’re stuck in a larger structure, that has a great difficulty of changing or evolving,” he said. “People don’t like change too much.”

dylan.robertson@freepress.mb.ca