in 1999 the supreme court of canada released the gladu decision its main purpose to clarify how judges must consider the special circumstances of aboriginal people who face the justice system the decision is named after one young aboriginal woman jamie tanis gladue's failed appeal resulted in a decision that may impact so many others what glad you is it's the court's best effort to recognize that that protection of that integrity and that way of life and way of knowing had to be interpreted through their their decision there is an obligation that canadians have to be sensitive to those things and to be considerate um and to acknowledge you know that that aboriginal people have to be recognized as a unique culture within our country as the ceo of native counseling services of alberta alan benson is aware of the positive potential use of the gladu decision the focus of ncsa is on restorative justice programs to help aboriginal people facing alberta's justice system ncsa also includes the knowledge and experience of elders and cultural resource people who work in the justice system i want to make some offerings to you uh from all of us here and ask you for your help and guidance let's start with you later cultural protocols must be respected when information is asked for when we consult with the elders and we do that regularly we ask them for guidance around what we're doing lately we've been asking for a lot of guidance around justice and traditional thinking and ways of knowing around our relationships with the law and our relationships with each other and when hurts are committed against somebody how do we deal with that [Music] in the beginning it was supposed to be that harmony but how can you have harmony when one party is more dominant and in their dominancy are creating all these conflicts for us they can get more and more policemen out there but the crime rate is just going to spring up faster and faster you know there's something else there that needs to be done [Music] what does the gladshoe decision mean from a judicial point of view and is it different from aboriginal justice service providers the gledu decision was narrowly about section 718 2e which is about sentencing the gladu principles apply whenever the liberty of an aboriginal person is at stake jonathan rudin is the program director of aboriginal legal services of toronto where the first glad you court is operating under its direction people to stay in jail for longer periods he also acts as a consultant for aboriginal justice service providers the gladdu principles sort of at their heart are that judges need more information before sentencing people gladu as a decision is not a sentencing discount case it's not like the lawyer stands up and says your honor my client's an aboriginal person i know you're going to give him nine months but you know i want the native discount i want a third off and he gets six months i mean it's not a sentencing discount case at jamie tennis gladue's trial the judge found that because she did not live on reserve section 718 did not apply to her case at her appeal it was decided that it applies to all aboriginal people whether they live on or off reserve there is the assumption that if you're an urban dwelling aboriginal person that traditional things shouldn't apply to you and i i i'll use myself and my family as the best example i'm a ceo of an organization i don't look first nations i work in a very professional world in a political world but i walk both paths and i do balance those values that are that are very difficult to balance cultural values and western values there are a lot of a lot of aboriginal people that live in the urban center that live that way the honorable mr justice richard marceau was appointed to alberta's court of queen's bench in 1996 he is also the deputy judge of the supreme court of the yukon justice marceau's experience gives him an understanding of the issues that bring aboriginal people before him many aboriginals come before the courts not having had many of the privileges of non-aboriginals in this society and all that parliament told us to do and all the glad your decision in the supreme court of canada does is say you pay special attention to the background factors obviously we're talking about the big picture we're saying that if you as a little child would were unfortunately yanked away from your parents put in a residential school and punished for trying to speak a cree or whatever your native tongue was that is a factor which may explain the later behavior and may also indicate how we can implement some restorative judgment justice to uh you know keeping in mind we've got to protect the community but perhaps we can design a sentence that is more remedial in nature than punitive in 1993 the judiciary the crown prosecutor and the community at alexis first nation formed a committee and began working together on a restorative court process for aboriginal offenders west unfield crown council in stony plain is part of identifying the right community-based alternatives to the court i was always deeply troubled by the lack of options that we have in court and jail well it's suitable for some people dangerous people should be in jail most of the people i deal with are not dangerous people they're addicted to alcohol and drugs they are sick people it's increasingly obvious to me that where you have addiction you're going to have aberrant behavior and where does it all come right through the courtroom door since the sentencing reforms that happened in the 1990s with the criminal code why are more aboriginal offenders being sentenced to prison terms than non-aboriginal offenders systemic racism you often find by looking at other things and working backwards so the big evidence of systemic racism the criminal justice system is aboriginal over representation and then when you you start from over representation and then you work back and trying to figure out why does that problem occur it's not that every aboriginal person has been wrongfully convicted certainly there are some so aboriginal people are breaking the law but why are they so overrepresented and that's where you start looking at issues like do aboriginal people get bail if they don't get bailed do they plead guilty right away do they have access to lawyers who listen to them do judges make assumptions about who they are based on the fact that they're aboriginal so you look at all those things and then you you can reach a conclusion that there's a problem with systemic racism in the criminal justice system every day i get scared from my sons because as a young aboriginal man they're targeted by the system police because they know they're probably poor they know that they're probably into drugs and alcohol you know that's a stigma that our young men live with and so if if they weren't targeted and they weren't looked at maybe they'd be all right but these are just some of the things that we talk about privately in our in our work but i think it's important for people to hear it well there are more aboriginal people going to jail because i believe we still haven't applied the philosophies we haven't created the protocols we haven't spent the time and effort in training people to better understand the gladu case as as the example i think in alberta there's still a strong thinking that legal aid takes care of the poor and legal aid takes care of the aboriginal population and i don't believe that's the case and it's not a criticism of legal aid the system again structures itself around need there are people all the time who'll say i'd rather go to jail i know how to go to jail i do well in jail i'm kind of special in jail you know i don't want to go and talk about my life and i don't want to have to start to do the work that i know i'm going to need to do i'm not ready for it yet joe there's no question and and again the courts have recognized that there have been court decisions that say you know restorative work is not easy in fact the court says that in gladu they say restorative work isn't easy it's often harder than than doing time in jail so i think there's a recognition of that you just have to to make clear what the restorative approaches need to be [Music] so [Music] the glad your decision brings the principles for healing aboriginal offenders into mainstream yet it is criticized as creating two levels of justice one for aboriginal people and one for everyone else we already have always looked at sentencing on an individual basis it's no more two-tier than to to say and no more racist than to say this fellow has cerebral palsy and he's had some brain damage from birth and he comes before the court with quite a diminished sense of responsibility because of his brain damage and therefore we will try to perhaps put him in a residential situation rather than put him in a jail it's not where he belongs he needs care he needs remediation and you say to me well yes but you know he robbed a bank so you should get four years like everybody else the fact is that four years is perhaps a starting point but some bank robbers get probation and others get eight years and 10 years in jail depending on the seriousness of the crime and often the moral responsibility of the person and the background issues linking the background factors with an aboriginal offender's criminal behavior is an important aspect for aboriginal justice service providers to consider concrete suggestions must be given for a sentence that will address the reasons why an individual is engaged in criminal activity yeah here see here's a good example of resourcing this letter is to confirm that x has successfully completed our day program may a13 and 14 called triggers and consequences she's also attended a a groups and mondays and na groups on wednesdays completed three-day workshop that acts counseling service called the higher power and healthy humor continues to work on her sobriety and well-being despite the obstacles that confront her and is determined to continue her sobriety and with solid support will be able to achieve her endeavors and goals so i will tell the defense lawyer if your guy does residential treatment and agrees to a lengthy probation aaa no alcohol no drugs you know that sort of regime and we bring them back every two or three months to see how they're doing i won't ask for jail and there were lots of cases where in any other court jail would have been the only route we had a young person who was committed for dropping a brick off a causeway and killing a bus driver in edmonton and the story of the victim's family and the young offender the young young adult went through a reconciliation process and that a circle and they referred to it as an aboriginal circle the equivalent of an aboriginal circle and that circle was very successful and many cases across canada those circles are being applied to non-aboriginal people and it's working [Music] the individual facing a sentence must be aware of the healing measures they can carry out and the service providers involved with them must be able to recognize if the person is sincere and ready part of the amendments in the criminal code was a new type of sentence a sentence called a conditional sentence and a conditional sentence allowed a judge to say all right i think what i would like to do under normal circumstances is send you to jail for let's say 15 months but what i'm going to do is i'm not going to send you to jail for that period of time you can be in the community under particular conditions and if you follow those conditions you won't go to jail if you don't follow those conditions you can go to jail for the remainder of your sentence we at our level of court are dealing a lot with the more serious offenses and those offenses are often so serious that there's cannot be much consideration for conditional sentences or non-custodial sentences having said that there are many occasions when we can impose them but these kind of sentences should be implemented and are implemented a lot more at the youth level or the young offender level where we're dealing with first offenders that can be turned around earlier in life to a great extent the provincial judges can be more creative than us in considering the gladiu decision [Music] the elders talk about things like a wrongdoing somebody made a mistake so there's the mistake that's made and then somebody done something wrong did something wrong to another person that's another level of seriousness of behavior and then somebody who has done something really serious violent murder rape that's because there's a serious dysfunction a mental health problem and so they look at all those levels of behavior not as crime but as behaviors and every one of them has a fix some of the fixes might be pretty severe and so we we equate something more serious like murder to prison where the elders might see it as you know banishment or something but all of it has has a meaning about the interaction they have with the community and the relationship and how the rest of the community has to survive based on your behavior and how that impacts on their survival and so that's really important in how we look at behaviors in in our laws today and how we how we heal young people that commit crimes right if we don't incorporate that kind of a thinking then we don't change behavior [Music] some critics of the glad your decision say that utilizing its principles will not reduce the crimes committed by aboriginal offenders aboriginal people are over represented among the victims of crime as well as being the perpetrators we probably do more victim consultation than any other office it has to be part of it because if they're not on board i mean it doesn't matter what the justice committee says it doesn't matter what i'm prepared to do the victim has to be taken into account and on the reserve itself it's less of an issue because they know they are living the experience that promotes this kind of activity they understand it and they want relief they want change they want treatment i have seen many situations where the community at large didn't want that offender back in that community at all they were let's say the chief and council or or the elders were not very happy with the kind of sentences that were meted out on the gladius principle and i think that there are two principles involved and one of them is that the chief and council and the elders of indian bands and the leaders of the uh aboriginal community the metis etc should get involved in the justice system they are often invited but not often do they come forward and say we want a hand in the sentencing there are just some things that we can't do to each other uh with impunity and we shouldn't we shouldn't allow it to happen uh when i say jail should be for dangerous people you break your your uh wife's eye soccer you break her arm or you stomp on your head and she's brain damaged you're gonna pay that's all there is to it and as much as i i wish it didn't happen as much as i believe that addictions uh is responsible to a large degree for what you did there are some things where there has to be a penalty so that we all know in the community you can't do this you can't do it you won't get away with it [Music] i don't know what the answer isn't i i'm not smart enough to ever know but i know injustice when i see it and it it makes me angry so you know i'm just a crown attorney i can only do so much but what what i can do is important because it involves the delineation of jail or no jail treatment or no treatment the approach used in west unfield's office seems to be working we did a account over an 18-month period uh on all of our restorative sentences and our success rate statistically over that 18 months was 78 success okay now i count success as compliance in every respect you know of the remaining percentage there were cases where there were significant changes and improvements but slips and problems and you know but very few of those and this is one of the only offices in canada that actually will apply to revoke a suspended sentence in jonathan rudin's experience there may be a different reality in courtrooms across canada in most courts across the country it's sort of business as usual and if it's business as usual the result will be more and more aboriginal people going to jail i know that in the courts that we work with in toronto and in the toronto area when we do a gladu report when we make suggestions possible recommendations to the judges for options judges are very quick to take those up they're very uh enthusiastic about those sorts of things crown attorneys change their position they start by saying oh we have to send this person to jail they read about they read the gledu report they read about the person they read about the options and they go no this is a better option let's not send them to jail so on a micro level it's clear that gladoo works it's clear to me that when the principles are applied they make a difference [Music] out of experience i believe the answers are in our community and our culture they're there i think that we have the capacity to solve the problems the problem is i don't know that the will is there amongst our own people as well as government you know that we look to the government to solve our problem to resource our problem we have to show some real leadership and that means that we need to make a very strong commitment at our community levels that things are going to change there's going to be zero tolerance for drug trafficking in our communities zero tolerance for gang violence in our communities and we're going to enforce it by our own bylaws at the at the first nations level we're going to enforce it by working closely with the judicial system and the police we're gonna we're gonna send a clear message to our kids that as leaders we don't accept this behavior that we have to start there [Music] first [Music] we need to start promoting our own world view it's not to say that to have biases against the western system but rather to understand why things are the way they are because that's where it came from and now we're here so what can we do to correct that you know the damage has been done so let's look at that what we learned from that damage how can we get beyond that jamie tanis gladu's appeal led to a supreme court decision in her name only [Music] nothing changed for her what we do in this country and and many countries that have a legal system like ours is we we elevate the decision the name of the decision becomes a principle so we now always talk about gladu there are other cases that we always talk we lawyers always talk about and they're always the name of the client but what happens to those clients no one really knows the case takes a meaning well beyond what it has to the individual and gladoo is a perfect example it's a decision that had little impact on jamie gladu because her sentence was done but it had a huge impact or potentially has a huge impact on aboriginal people who are sentenced since that decision the glad you decision may have far-reaching influence in other areas where aboriginal people are involved in legal hearings what does it mean for an aboriginal offender's spirit to be mended from an aboriginal perspective the only people who can make it real are those who are working in the criminal justice system and the aboriginal people who are facing it [Music] oh my