Jul 22, 2020

Gladue at 20: Why am I so misunderstood?

R. v. Altiman, 2019 ONCA 511 (CanLII)

In R v Altiman, 2019 ONCA 511, the ONCA (Sharpe, Benotto and Brown JJ.A.) allowed an appeal against the 10-year sentence imposed on Mr. Altiman, a Indigeous man, who plead guilty to, among other things, impaired driving that caused the death of two people and injured two others. The full Court agreed that even without considering Gladue principles, the sentence was demonstrably unfit and should be reduced to at least 7 years. The Court, however, disagreed about the impact of Gladue principles, with Justice Sharpe, in dissent and correctly in my view, concluding that a further reduction in sentence was warranted.

Altiman was released on the same day that my client received his sentence in a manslaughter case in the Indigenous community of Fort McPherson, NT, or Tetl'it Zheh (“Town at the Head Waters”): R v Nerysoo, 2019 NWTSC 51. I mention this because Altiman reflects an ongoing concern that I have had about what may be a troubling trend of restricting the remedial force of s. 718.2(e), now 20 years out from Gladue itself and just 7 years from the exhortation and attempted course-correction in Ipeelee. Indeed, recently the NWTCA commented on the “impoverished approach” to Gladue in a dangerous offender proceeding: R v Zoe, 2020 NWTCA 1 at 54.

As summarized in Gladue: “[s]ection 718.2(e) is not simply a codification of existing jurisprudence. It is remedial in nature. Its purpose is to ameliorate the serious problem of overrepresentation of aboriginal people in prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing. There is a judicial duty to give the provision’s remedial purpose real force.” (93)

Then came Ipeelee and the Supreme Court’s effort to resolve “misunderstandings” and “provide additional guidance so that courts can properly implement this sentencing provision” (63). As we now know, many courts had been erroneously imposing a strict causal precondition to its application, and had been improperly denying its application for serious and violent crimes (81 & 86).

In short, Gladue was being routinely misapplied for the first decade of its existence. For whatever reasons, the courts were apparently reluctant to give Gladue “real force” towards reducing over-incarceration. And Ipeelee sought to put to rest two common errors that were narrowing its proper application, although these errors continue with frequency up to the present: eg R v Matchee, 2019 ABCA 25; R v Isbister, 2019 BCCA 135, R v McInnis, 2019 PECA 3, R v Martin, 2018 ONCA 1029, R v Provinciano, 2019 MBCA 16, R v Andersen, 2018 NLCA 41, R v F.H.L., 2018 ONCA 83, R v Okimaw, 2016 ABCA 246, R v Delorme, 2017 SKCA 3, R v Kreko, 2016 ONCA 367). It is in this context, of ongoing judicial ambivalence towards the proper application of Gladue, that I believe that a third error might exist.

There seems to be a tendency to implicitly diminish the impact of case-specific factors of a particular Indigenous offender - even though those factors find their source in “the unique systemic and background factors affecting aboriginal people” and bear on his culpability for the offence - simply because those offenders are unfavourably compared, as a matter of degree, to other Indigenous offenders who have had more acute or devastating experiences. See R v Mantla, 2018 NWTTC 4 at 45 (rev'd by 2020 NWTCA 6 on other grounds) for a glimpse of this comparative approach. Thus, for those who do not score as high on the hierarchy of suffering, the remedial purpose of Gladue may go unfulfilled, acting less like a shield and more like a sword.

While I understand the advocates' and jurists' temptation to compare and distinguish, nothing can be gained by comparing the relative level of harm suffered by Indigeous offenders. Indeed, I think that in doing so, there is an appreciable risk that it will raise the bar to the fulsome application of Gladue for those whose Gladue factors, while “significant” in relation to that particular offender and unique as compared with other Canadians, may be unreasonably diminished in comparison with another Indigenous offender. To be sure, because "there is only one offender before the court", another offender's personal experiences are irrelevant to the offender's moral blameworthiness: Ipeelee at 86.

Moreover, irrespective of whether a particular Indigeous offender was fortunate to have a “positive upbringing” or a "happy childhood", this should not mask or deny the unique and systemic hardship that that offender may have personally experienced, especially relative to non-Indigenous people in Canada (from inter-generational trauma flowing from state-sanctioned abuse, loss of language and culture to exposure to higher rates of violence, substance abuse, isolation and poverty: Ipeelee at 59). As wisely observed by Justice Sharpe in Altiman, “[a] mother’s excellent teaching and example can go a long way to putting her child on the right track, but even a strong mother cannot always erase the indelible marks left by patterns of systemic disadvantage and alcohol abuse”(134).

But courts also resist this third error. Justice Mahar eloquently responded to some of these concerns in the Nerysoo decision (31-37). Moreover, there have been some recent cases from the SKCA and MBCA which reflect the careful and robust approach to Gladue that our law demands: R v JP, 2020 SKCA 52 at 47 and R v Neepin, 2020 MBCA 55 at 69.