Crown Counsel

Gladue Principles are Equitable Transformative Justice Principles.  They apply across the entire criminal justice system.  Crown counsel are in a position to apply fair treatment to criminal prosecutions, recognize the unique social history and culture of Aboriginal people and adopt an Equitable Transformative Justice approach within the BC Prosecutions Service. 

The Canadian Criminal Code under s718.2(e) states "all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders." 

Background​
 

The Gladue Writers Society of BC is dedicated to working in collaboration with BCPS to advance principles of Equitable Transformative Justice across

the criminal justice system. We are all equal but not the same.

It is important to acknowledge, within the criminal justice system in BC, "the generations of formal and informal discrimination, suppression, subjugation and
segregation of Indigenous communities in Canada, including the impact on victims, and descendants of victims, of residential schooling which were state-
sponsored institutions designed to eradicate the cultures, languages and community integrity of Indigenous communities" (TRC 2015, Vol 1, Parts 1-2).

 

We believe that a full Gladue Report helps the entire court process to ensure participants in the process can make informed decisions. The Gladue and Ipeelee decisions told us the criminal justice system is failing Aboriginal people and instructed us to do things differently.  What may not always be clear is how to do things differently.  We know the criminal justice system typically adopts a formalistic/institutional approach to criminality, and as such can lead to systemic bias and discrimination, toward disadvantaged populations.  We are not suggesting there aren't promising practices and transformative outcomes achieved to date, however, we can and must do more to remedy the structural/procedural flaws and promote fairness, and expand the positive approaches until they displace the current status quo.

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

B.C. prosecutors aim to tackle bias and racism to reduce 'unacceptable' number of Indigenous incarcerations

Application

To ensure the fair treatment of Aboriginal Peoples, Crown counsel have an obligation to apply Gladue Principles at:                

  • Charge assessment

  • Bail hearings

  • Sentencing hearings

What is the difference between Gladue Principles, Restorative Justice and Equitable Transformative Justice?

There is no substantive difference between these terms.  One will often hear the term "Restorative Justice Options" when referring to the plan laid out in a Gladue Report (usually to address the root cause of an offence cycle and to make reparations for any harm done).

 

Perhaps the most meaningful term to address the fact that we are all equal but not the same, is Equitable Transformative Justice.  Gladue Principles are not aimed at affirmative action or reverse discrimination. Gladue Principles are "an acknowledgement that to achieve real equality, sometimes different people must be treated differently" (R v Vermette, 2001). Equitable Transformative Justice takes our understanding of Gladue to the next level.  This term helps us understand the remedial components of the Gladue decision.  And most importantly, it promotes transformative outcomes that benefits all Canadians. 

 

How is Crime viewed?

Crime can be considered "a violation of people and relationship".  "The conflict that emerges from the crime provides an opportunity for positive “transformation” for the victim, offender, and the community to move closer to ones purpose and freedom.  It is a deep rebalancing the mental, emotional, physical, and spiritual aspects of all people affected by a crime".

This transformation encourages rehabilitation, accountability and healing as it's focus rather than simply incarceration and punishment. It takes many forms and is constantly evolving and changing lives for the better. Restorative justice repairs the harm caused by crime. When victims, offenders and community members meet to decide how to do that, the results can be transformational to both the victim, the offender and the community members.

Does Gladue change the view of being tough on crime?

  • It has often been said we need to get tough on crime.  Certainly community safety and accountability are the cornerstones of thriving societies.  However, it is not that simple.  It is but half of the equation.

  • We believe we need to also get tough on poverty, homelessness, housing, lower educational rates and high rates of suicide and substance mis-use among Aboriginal populations. 

  • We know that there are "social determinants of criminality".  Criminality is often where we see the net effect of years of dislocation, discriminatory acts against Aboriginal families and communities, and colonial impacts (that persist to the present day) accumulate. 

  • Therefore, we believe it is reasonable to say everyone in the criminal justice system has an obligation to prevent crime and promote community safety. 

 

Does colonization excuse certain behaviour?

  • No, but it can explain its origins and patterns.

  • By addressing the root cause of offence cycles, we see lower rates of recidivism and increased community safety. 

What are alternatives to incarceration that address sentencing principles?

  • When it comes to Aboriginal populations, s718.2.(e) instructs to utilize all available options and utilize jails as a last resort.

  • Community sanctions can represent a powerful opportunity for individuals to take responsibility while being supervised in appropriate ways;

  • Culturally based justice programs (diversion, rehabilitation programs, conferencing for youth, sentencing circles, or healing circles) can meaningfully address the needs of the offender, the victim and the community's needs to restore balance;

  • Rehabilitation in jail is a complex topic. Despite the best of intention, we see a wide array of investigator reports documenting systemic bias and racism.Working collaboratively with Aboriginal communities has proven to produce lasting results such as promoting community safety, obtaining rehabilitative interventions that promote individual transformation, and thus reducing the risk of re-offending;

  • Victim's Gladue Factors can be raised in Gladue Reports (R v Chanalquay 2015 SKCA 141)

 

Why do Gladue Reports matter?

 

Informed decision making

 

Gladue Reports can be extremely useful tools to help the Crown, Defence and the Judge, to make informed decisions.  They provide a full picture of the individual, their unique background and systemic factors, and the restorative justice plan going forward.  They humanize the individual and lay out a practical plan.  They help to excavate the root cause of offences cycles and offer new interventions upstream.  Often, restorative justice plans can become a foundation for healing when they are aimed at prevention and wellness, incorporating Aboriginal values and cultural traditions.

 

Reducing Victimization, Crime and Incarceration

 

Application of Equitable Transformative Justice principles in the day to day practice of Crown counsel has an effect.  It can contribute to a decrease in the rates of victimization, crime and incarceration among Aboriginal peoples in BC by conducting culturally competent prosecutions involving Aboriginal peoples (Fair Treatment of Indigenous People in Criminal Prosecutions in NS 2018).  

Relevant Research Papers

Towards Accountability and Fairness for Aboriginal
People: The Recognition of Gladue as a Principle of
Fundamental Justice that Applies to Prosecutors

Trauma-Informed Approaches to Law: Why Restorative Justice Must Understand Trauma and Psychological Coping

The Recognition of Prosecutorial Obligations in an Era of Mandatory Minimum Sentences of Imprisonment and Over-representation of Aboriginal People in Prisons

© The Gladue Writers Society of British Columbia 2019