How should violent Indigenous men be dealt with by the courts?
An Indigenous man is being sentenced for sexually assaulting his same-race partner.
Should the judge give him a break because he has grown up in tough circumstances under the dark cloud of colonialism and the legacy of mistreatment in the residential school system? Or, should he have the book thrown at him because he attacked an Indigenous woman?
That is the problem the Canadian justice is now facing, as it grapples with balancing the longstanding Gladue principles in sentencing with the findings in the final report of the National Inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG) that calls on the federal government to consider violence against Indigenous women an aggravating factor during sentencing.
So in the end, the Indigenous rapist could end up receiving the same type of sentence, on balance, than a non-Indigenous offender would face.
This predicament is of interest to me as I’ve been covering a number of sex assault trials and sentencings in Yellowknife recently. And all of those charged were Indigenous men. And all but one of the victims were Indigenous females.
The other was a man-on-man groping in a jail cell. The offender was very drunk when he did it — and received a punch in his face from the victim — and was very embarrassed about answering for it in court.
But I digress.
The longstanding Gladue principle — implemented twenty years ago last April — named after Cree woman Jamie Tanis Gladue, requires judges to take into consideration circumstances facing Indigenous peoples in order to arrive at an appropriate sentence, including alternatives to jail time. Gladue factors include information about whether the offenders or his parents/caregivers attended residential school, spent time in foster care, or have struggled with alcohol or drug abuse.
The idea at the time was to try and reduce the number of Indigenous offenders behind bars — that segment of society being “over-represented” in Canadian jails.
So I hear the term “Gladue factors” mentioned all the time by Crowns, defence lawyers and judges.
And days after the June 3 release of the 1,200-page MMIWG final report, I heard a Crown mention it in a sentencing hearing for an Inuvialuit man who had pleaded guilty to assaulting his partner and five breaches of court orders.
The new report “shows the level of violence being inflicted on Indigenous women needs to be addressed through sentencing,” said Crown prosecutor Pierre-Luc Bergeron on June 7 in Territorial Court.
“There needs to be a message communicated throughout the Northwest Territories that violence against a partner is unacceptable.
“The principle of denunciation and deterrence must be emphasized.”
Now the final report also calls for Gladue reports to be considered as a right for female offenders and to have national standards and appropriate funding for them. But that’s the flip side of the Gladue coin, so to speak. And a blog for another day.
This is about the potential harm the Gladue sentencing principles for male offenders could be doing to the female victims of violent crime, according to the MMIWG report.
Prime Minister Justin Trudeau has promised an action plan to address the report’s findings. We’ll see what ends up being codified in law.
It could end up that Indigenous males facing sentencing for crimes of violence against Indigenous females could be sentenced as anyone else would be under similar circumstances.
But in terms of being proactive, the root causes to all of the violence in the NWT must be addressed. Repeated data reports show the northern territories have the highest rate of violent crime and sexual assault in Canada.
Between 2016 and 2017, the rate of police-reported sexual assaults (all levels combined) increased 22 per cent above the national average in the NWT. That’s very grim.
What drives all of it? Well, alcoholism is mentioned as a factor in every single case of sexual assault I’ve covered this year.
Every single case.
Sure, I understand that people turn to alcohol and drugs to deal with depression and sadness. So jobs and hope are needed to help address that.
Many offenders express a desire to get off the booze. Sure, they are telling this to a judge who holds their future in their hands. But many really, really want to turn their lives around.
That’s why I find it alarming — nay, astounding — that the GNWT steadfastly refuses to establish a residential treatment centre in the territory.
We send those seeking recovery south to B.C. or Alberta, then hope they can stay sober when flown back to their communities here. Good luck with that.
What happens with the findings overall from the MMIWG report will be interesting to see. There are many, many positive and doable determinations out of the 231 in the report.
But the GNWT needs to take action now on attempting to deal with a real problem that is at the centre of the issue, to my mind. And that is alcohol and drug abuse.
UPDATE: Well, that didn’t take long. Shortly after this blog was posted, a local judge discussed at length what he termed the Gladue “paradox.” See my story from the courthouse here.