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In 1999, the Supreme Court of Canada released a
landmark judgment in R v Gladue that recognized
the existence of systemic racism against
Aboriginal people in the criminal justice system.
The Court wrote,
“It is true that systemic and background
factors explain in part the incidence of
crime and recidivism for non Aboriginal
offenders as well. However, it must be
recognized that the circumstances of
Aboriginal offenders differ from those of
the majority because many Aboriginal
people are victims of systemic and
direct discrimination, many suffer the
legacy of dislocation, and many are
substantially affected by poor social and
economic conditions. Moreover, as has
been emphasized repeatedly in studies
and commission reports, Aboriginal
offenders are, as a result of these unique
systemic and background factors, more
adversely affected by incarceration and
less likely to be “rehabilitated” thereby,
because the internment milieu is often
culturally inappropriate and regrettably
discrimination towards them is so often
rampant in penal institutions.”
Gladue requires all courts to consider the
circumstances of Aboriginal people (First Nation,
Métis and Inuit) in arriving at a just sentence, and to
give serious consideration to non-carceral alternatives
that may prove more effective for Aboriginal people.
Twenty years after the AJI, the over-representation
of Aboriginal people in Manitoba prisons and
jails has got worse, rather than better. Clearly
Gladue has not had the impact one might have
hoped for in a province that has one of the largest
Aboriginal populations in Canada. In an effort to
better understand and develop solutions to address
this problem, the University of Manitoba Faculty
of Law hosted a symposium in March 2011 on the
implementation of Gladue. The symposium aimed to
increase awareness about Gladue and other key legal
developments, to note the lack of implementation
in Manitoba, and to hear from a number of speakers
who are bringing Gladue principles to life in a variety
of innovative ways across Canada. Speakers included
Jonathan Rudin of Aboriginal Legal Services of
Toronto; Robson Hall Professors Brenda Gunn, David
Milward, and Debra Parkes; Chief Judge Karen Ruddy
of the Yukon Territorial Court; and Sandra DeLaronde,
Executive Director of the Helen Betty Osborne
Foundation. The panels were chaired by Chief Judge
Ken Champagne and Professor Wendy Whitecloud.
The symposium was a tremendous success, acting
as a catalyst to bring a number of Manitoba judges
and lawyers together with Robson Hall faculty
members and students, as well as members of the
Aboriginal community, interested in implementing
Gladue principles in Manitoba courtrooms. Members
of this ad hoc working group recognize that there
is a lack of justice system resources dedicated to
providing courts with the information they need to
apply Gladue in a meaningful way to the Aboriginal
people who come before them. There is no dedicated
funding or program to support the production of
“Gladue reports” which would provide the kind of
information about the accused that is contemplated
in the Gladue decision and which have proven
successful in assisting sentencing courts in other
jurisdictions. Relevant information can include how
colonialism has affected the individual’s particular
Aboriginal community, traumas that have affected
the person’s life, the role of systemic disadvantage in
bringing the individual into the justice system, and
culturally-based alternatives to incarceration.
Collaborative efforts growing out of the
symposium have had some promising results,
including:
• Publication of a peer-reviewed article by
Professors Debra Parkes and David Milward
in the Manitoba Law Journal that synthesizes
their presentations at the symposium
71 ROBSON HALL ALUMNI REPORT