All courts must uphold Gladue principles

Nov 27, 2015 By Matthew Friedberg
Toronto criminal lawyer Matthew Friedberg says the comments of an Ottawa justice of the peace may show a disregard for the way the Supreme Court of Canada has directed the justice system to consider aboriginal peoples’ backgrounds.

“What is concerning about this is the justice of the peace did not appear to have an appreciation of Gladue principles and seemed to be somewhat dismissive of the issue," he tells AdvocateDaily.com.

Christopher Jacko, a 25-year-old Ojibway man from a northern Ontario reserve, appeared before Ottawa Justice of the Peace Louisette Girault, reports APTN National News.

To be released on bail from an Ottawa jail where he’d spent the last three months on assault and breach charges, he wanted to explain to the justice of the peace that he had suffered “horrific” abuse, neglect and was dealing with the generational impact of residential schools. But Girault wasn’t interested in hearing another “sad” story, reports the network.

“What is he going to say? … I’ll be a good boy; I won’t have any knives; I won’t take any alcohol or drugs? I am assuming,” said Girault, according to court transcripts obtained by APTN National News.

The Supreme Court has given clear direction in R. v. Gladue, [1999] 1 SCR 688, on how courts should treat aboriginal offenders. This matter enshrines the principles that courts must take into account when assessing these cases.

Ultimately, the Gladue principles direct the court to consider an offender’s history and how it relates to the impact of residential schools and other forms of colonization, says the article.

It means that the courts can take a restorative approach so that there is a focus on healing those affected by the criminal act, including the offender. This approach, in line with traditional aboriginal justice, can sometimes allow for a solution with no jail time, which helps reduce the drastic over-representation of aboriginals in Canadian jails, Friedberg explains.

This is also outlined in 718.2 (e) of the Criminal Code.

Toronto has a specialized Gladue court dedicated to aboriginal offenders and resolving these matters using these principles. Ottawa does not have a Gladue court.

In the Ottawa matter, Jacko had wanted to tell the justice of the peace that he had plans to reconnect with his culture as a way of dealing with his anger that has given him a long criminal record; one of his convictions is for attacking a step-dad he said beat him when he was growing up, says the article.

But the justice of the peace didn't appear to want to hear it.

“We don’t want to go through like, you know, his life history at the end of the day,” Girault said. “I mean I am imagining it is a little bit of the sympathy issue that you are looking for. I mean I will balance that with the nature of the charges, but I don’t think we need to hear from his life history from the time he’s 14.”

Jacko did tell the court his story later that day and the justice of the peace released him from custody, says the article.

Friedberg says that while the justice of the peace may have been having a bad day, her comments are simply not becoming.

“It's important for any judicial officer to keep an open mind and have the ability to see each case freshly without having become jaded,” he says.

Friedberg says it’s important that the court in each case hears all of the relevant evidence.

“And if one’s heritage is relevant, and according to the law it is in this case, then it needs to be heard,” he says.

Friedberg says the Jacko case highlights a need for education and sensitivity around these issues.

“You don’t need to be in Gladue court to apply the Gladue principles — every judicial officer should be fluent in, and sensitive to, these issues,” he says. “One should be able to bring up these issues before any judge or justice of the peace.

The following is an excerpt from the decision (as obtained by APTN):

“Quite frankly, the Gladue thing, I am well aware of, you know, Aboriginal and, you know, some people do have for sure a harder life but in your particular case you are not the only one with that. You know there’s Caucasian, there’s black people, there’s people that come from war-torn countries, you know, that have been tortured and child soldiers. So a lot people come with a lot of baggage, I am very sympathetic to that. But at one point you have to stop blaming others because they think that, you know, at the end of the day you have got to look at yourself in the mirror and you have got to say, 'What is it that I can do to change this? And you know what? I had a really tough life so what is it that I can do not to inflict that on other people and maybe on children that I may have in the future?' And I hope that you don’t because you are clearly not in a position to be a father to anybody.

"So you know what, I mean not everybody has a good parent. People, you know, come here with drug-addicted parents that they have been abused physically and otherwise and I am sympathetic to that but in my — I mean I am not a Gladue expert, I will say that right away. I should, you know, in a sense spend a little bit more time looking at it but I always look at the view that you have to use common sense, you have to use empathy and sympathy and you also have to look at what is right and wrong in the community.

"So in this particular case, on this case only, does it call out for detention? Absolutely not. I mean half of these charges the Crown won’t even be able to prove. I am not even sure they will be able to prove the alcohol now that they say that because, you know, you come across the way you talk it almost seems like you would be someone who is under the influence of some sort, I think that is just the way you talk.”