Corrections

Gladue Principles are Equitable Transformative Justice Principles.  They apply across the entire criminal justice system.  Correctional decision makers are in a position to apply fair treatment to Aboriginal offenders, recognize the unique social history and culture of Aboriginal people, advance progress, and work toward eventual release, while in correctional institutions. 

Background

To ensure the fair treatment of Indigenous Peoples, Correctional Service Canada's decision-makers are obligated to take into account "Gladue Factors" (also known as ASH or Aboriginal social history factors) in relation to:

  • Intake and assessment;

  • Security classification (minimum, medium, maximum);

  • Parole Board of Canada hearings (full and day parole);

  • Community release planning;

  • Disciplinary decisions (including administrative segregation);

  • Transfers; 

  • Statutory Release.

Section 80 of the Corrections and Conditional Release Act (CCRA) mandates that the Correctional Service of Canada (CSC) shall “provide programs designed particularly to address the needs of aboriginal offenders.” (Corrections and Conditional Release Act, SC 1992, c 20).

 

Behind this provision is a mandate to provide services such as life skills training or substance abuse treatment, but designed to include the inculcation of Aboriginal cultural values as part of the treatment or training.  Another mandate is to facilitate inmate participation in cultural activities, such as training in traditional spiritual practices or sweat lodge ceremonies.  These services should be delivered by elders or other members of Aboriginal communities with similar cultural authority.  

 

Parole

A primary objective of correctional programming is to prepare individuals for parole. Canadian correctional legislation contains directives to consider the circumstances of Aboriginal offenders and alternatives that can lessen terms of incarceration.   

 

Section 102 of the CCRA sets out the criteria for granting parole as follows:

102. The Board or a provincial parole board may grant parole to an offender if, in its opinion,  

 

(a) the offender will not, by reoffending, present an undue risk to society before the expiration according to law of the sentence the offender is serving; and

 

(b) the release of the offender will contribute to the protection of society by facilitating the reintegration of the offender into society as a law‐abiding citizen. 
 

(Corrections and Conditional Release Act, SC 1992, c 20).

The Parole Board’s Policy Manual provides an additional gloss to this provision by mandating consideration of certain factors as follows:

 

Any systemic or background factors that may have contributed to the offender's involvement in the Criminal Justice System, such as, the effects of substance abuse in the community, racism, family or community breakdown, unemployment, income, and a lack of education and employment opportunities, dislocation from his/her community, community fragmentation, dysfunctional adoption and foster care, and residential school experience.

(National Parole Board, Policy Manual, vol 1, no 13, Ottawa: National Parole Board, 2008, at 2.1 – 2.)

Sections 84 and 84.1 allow Aboriginal people to apply for parole and release, typically under supervised conditions, into an Aboriginal community with a view towards re‐ integration with that community.  

 

Notice to the Aboriginal community is required, which provides the Aboriginal community an opportunity to propose a plan of supervision and re‐integration. The parole hearing process also allows Aboriginal Elders to be present with a view towards providing background information that will assist the Board in reaching appropriate decisions.  

 

The Policy Manual describes the role of Elders as follows:

 

The role of the Elder/Advisor is to provide Board members with information about the specific cultures and traditions of the Aboriginal population the offender is affiliated with, and/or Aboriginal cultures, experiences, and traditions in general.

 

  • The Elder/Advisor may be an active participant in the hearing and may ask about the offender's understanding of Aboriginal traditions and spirituality, progress towards healing and rehabilitation, and readiness of the community to receive the offender if return to the community is part of the release plan.

  • The Elder/ Advisor may speak with the offender in an Aboriginal language to gain a better understanding of the offender, and to assist the Board members with gaining further information helpful to achieving a quality decision.

  • The Elder/Advisor will summarize such an exchange for the Board members and others at the hearing before the decision is made. The Elder/Advisor may also offer wisdom and guidance to the offender and may advise the Board members during the deliberation stage of the hearing to provide insights and comments with respect to cultural and spiritual concerns (National Parole Board, Policy Manual, vol 1, no 13 (Ottawa: National Parole Board, 2008) at 9.2.1 ‐ 1.) A similar accommodation is allowing parole hearings to be heard in Aboriginal communities, also known as “releasing circles”, that allow Aboriginal communities to have input into the determinations.(National Parole Board)

 

It is important to note that despite the professed commitment to Gladue principles by the CSC, there are serious problems and gaps in the implementation of these principles on the ground. 

 

Comparisons

The situation of Aboriginal people in federal corrections has been described in the 2009‐2010 Annual Report of the Correctional Investigator: In November 2009, my Office released an independent report authored by Michelle Mann entitled, Good Intentions, Disappointing Results: A Progress Report on Federal Aboriginal Corrections. The Mann Report documents the fact that outcomes for Aboriginal offenders continue to lag significantly behind those of non‐Aboriginal offenders on nearly every indicator of correctional performance.

 

In comparison to the non‐Aboriginal inmate population, Aboriginal offenders tend to be:  

  • Released later in their sentence (lower parole grant rates).

  • Over‐represented in segregation populations.

  • More likely to be released at statutory release or at warrant expiry.

  • More likely to be classified as higher risk and in higher need in categories such as employment, community reintegration and family supports.

Gladue in Corrections


If a Gladue lens was fully and consistently applied to decision making affecting security classification, penitentiary placement, segregation, transfers and conditional release for Aboriginal offenders, then one could reasonably expect some amelioration of their situation in federal corrections. The fact that they are almost universally classified as “high needs” on custody ratings scales, the fact that nearly 50% of the maximum security women population is Aboriginal, the fact that statutory release now represents the most common form or release for Aboriginal offenders and the fact that there is no Aboriginal‐specific classification instrument in use by CSC all suggests that Gladue has not yet made the kind of impact one would hope for in the management of Aboriginal sentences (Canada, Office of the Correctional Investigator, “Annual Report of the Correctional Investigator 2009‐ 2010”, online: Office of the Correctional Investigator at p45.)
 

Source: Gladue Handbook 2012

For more information, please refer to the following CBC news story: 

Give Indigenous people more control, resources to address over-incarceration, says correctional investigator

© The Gladue Writers Society of British Columbia 2019