Courts falling short on effort to keep natives out of jail

TheGlobeandMail.com – National – Courts falling short on effort to keep natives out of jail: Ten years after landmark ruling, prison numbers tell a dismal story
Published on Sunday, Dec. 27, 2009. Last updated on Monday, Dec. 28, 2009.   Kirk Makin

All things being equal, Dennis Thibault didn’t have a prayer of getting bail.

The lanky, fast-talking street person had evaporated into the streets of downtown Toronto last July, after his arrest on cocaine-trafficking charges, and missed three consecutive court dates. Few judges would have considered taking a chance on him again.

But all things were not equal. The courtroom Mr. Thibault was led into last week – known as a Gladue Court – was created after a landmark Supreme Court of Canada ruling urged judges to be sensitive to the long-standing plight of aboriginal people.

Mr. Thibault was released on bail with a token $500 surety and a direction that he take drug treatment at an aboriginal centre.

“My client was very fortunate that the stars lined up for him,” Mr. Thibault’s lawyer, Steven Dallal, said afterward. “His counterpart in an ordinary court would probably not have been released.”

The outcome for Mr. Thibault was an exception. Ten years after the Supreme Court described aboriginal over-incarceration as a full-fledged crisis that must be attacked at all levels, the response has been erratic and piecemeal.

Statistics tell a dismal story. Aboriginals amount to fewer than 4 per cent of the Canadian population, yet accounted for 24 per cent of those admitted to provincial or federal custody in 2006-2007 – up from 21 per cent the previous year. In Ontario, twice as many aboriginal youth are being jailed as non-aboriginal youth who commit the same offence.

“We had to get the numbers down because they were ridiculous,” Mr. Justice Melvyn Green, of the Ontario Court of Justice, said in an interview. “But 10 years later, my God, we are even deeper in the jungle. This is really the horror.”

Mr. Justice Patrick Sheppard – who co-founded the country’s first Gladue court – said that the justice system is moving far too lethargically: “We are not really getting to the root of any of this stuff,” he said. “I am really disappointed in the numbers.”

Five Gladue courts have been created in Ontario – three in Toronto, and one each in Sarnia and Brantford. Vancouver has a successful aboriginal diversion program that keeps many offenders away from jail cells.

Apart from that, individual judges are pretty much on their own. While many judges say that they incorporate Gladue into their sentencing process, specialists are very skeptical of their claims.

Jane McMillan, an aboriginal legal scholar at Nova Scotia’s St. Francis Xavier University, said there’s “a sort of compassion fatigue – not just in the judiciary, but the justice system in general. Gladue looked like it would be a great step forward, but it has fallen short. The consequences are becoming increasingly dire.”

She said aboriginal communities have great trouble securing funding for programs that could serve as an alternative to jail, and prosecutors tend to resist using them, anyway.

Jonathan Rudin, program director of Aboriginal Legal Services of Toronto, agreed that prosecutors often put up a blind resistance to sentences that do not involve jail, but he said that the defence bar is equally to blame for not seeking alternatives and demonstrating how clients have suffered the impacts of systemic discrimination.

“Racism is real, and one of the places it exists is in jail,” Mr. Rudin said. “Aboriginal people have less access to parole and rehabilitation programs.”

Mr. Rudin also faulted the Supreme Court for failing to provide specifics about how to restructure the court system.

To make matters worse, appellate courts are providing erratic guidance. In a recent study, University of Toronto law professor Kent Roach found that they are creating particular confusion about when Gladue can be applied to violent offences.

At one end of the spectrum, the Ontario Court of Appeal has strongly supported the spirit of Gladue, he said. At the other, the Saskatchewan Court of Appeal has been harsh and restrictive.

Gladue Courts feature aboriginal court workers who provide so-called Gladue reports that flesh out the details of an offender’s background and the community programs that he could be linked up with.

Judge Sheppard said that he has consistently promoted the Gladue model at judges’ conferences, but to little avail. “I’m not saying that there is a conspiracy to ignore it, but all of the players in the criminal justice system would have to take a little more time,” he said.

Prof. McMillan said that many judges seem unable to understand how aboriginal people have been affected by marginalization and the effects of seeing their culture demeaned and destroyed over centuries.

“They don’t understand the level of normalcy of violence in the aboriginal community,” she said. “They don’t understand the day-to-day struggle for survival that really fashions and influences an individual’s life.

The Gladue ruling provided, “great opportunities for empowerment and sovereignty and community-building,” she said. “What we are seeing instead are harsher, more conservative sentences. It is appalling and frightening.”

Some judges also worry that Gladue has provided offenders with an unwarranted get-out-of-jail-free card. “There is that risk – and I’ve heard judges express it that way,” remarked one Ontario judge, speaking anonymously. “People talk about there being a ‘Gladue discount.’ ”

But Mr. Rudin said that this is a misperception that causes people to lose sight of the value of alternatives such as substance-abuse treatment, aboriginal spirituality centres and community sentencing circles.

Unfortunately, he said, funding for these alternatives is tightening at the same time as aboriginal sentencing circles are becoming an endangered species.

“There is an incredibly serious disconnect across the country,” Mr. Rudin said. “To expect the system to change without putting in resources is foolish. I think the reality is that people have not wanted to commit the resources to make Gladue real.”

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