OTTAWA – Twenty years ago, last April, the Supreme Court of Canada pronounced its decision in the case of a young Kris woman who killed her husband from the ordinary law.
The woman was Jamie Tanis Glad, who at the age of 19 had drunk her husband when she discovered her infidelity while he was buried at a party. She pleaded guilty to murder and was sentenced to three years in prison, receiving a suspended sentence of six months.
The Supreme Court upheld the sentence of Hunger, yet it was an important decision. The court stated that judges must reflect on the pronouncement of the unique circumstances of indigenous offenders, as well as the alternatives at the time of the imprisonment.
Such considerations, as outlined in the Criminal Code, now known as the Hunger Principles, were intended to address the over-representation of indigenous people in Canadian prisons. Since then, they have led to the creation of Gladue reports, documents that determine the background of indigenous offenders for sentencing judges, including information on whether they attended residential schools, spent time in childcare or fought substance abuse.
The "Glady" principle is found in the final report on the national investigation into missing and killed indigenous women, released on Monday, in ways that can be expected. The investigation calls on all governments "to consider the reports of Hunger as law", to fund them appropriately and to create national standards for them.
But almost in the same breath, it appears to cast doubt on the whole effort. Commissioner Qajaq Robinson said on Monday that in some cases, Gladue's principle "results in violence against indigenous women", giving weaker sentences to those who hurt them. The report calls on governments to assess the impact of the Hunger on the "penal capital" in such cases.
The recommendation is one of the few seemingly calling for tougher penalties for those who commit violence against indigenous women, despite the very report that provides a small context to support them. With an explanation, one line in summary of the findings says there is "a common belief that indigenous offenders receive milder sanctions" due to the Hunger principle. "I use language families," Robinson said on Monday. "You will get out of jail, you will receive slapping on your wrist. The gravity of violence, the reality and experiences of indigenous women in these cases of violence is not part of the equation."
This is a perception that those who write Gladue reports are used to confront, but they strongly reject them. "There is no quantitative study that suggests evidence that Gladue reports always result in shorter sentences," said Anisa White, president of the Writers' Association of Gladue of British Columbia. She said the Gladue report, rightly done, could set out plans for perpetrators to make changes in their communities, deal with trauma and substance abuse, and restore their lives. "I completely reject the idea that Gladue reports are negative."
Jonathan Rudin, Program Director for the Aboriginal Legal Services in Toronto, said that some of the responses to Gladue's reports are that victims often do not get enough support from the justice system. "We need to provide the right resources for the victims to allow them to heal," he said, but added that it does not diminish the importance of the Hunger principle. "I think if the Gladue reports are right, they should be right, then they should be right for everyone."
White said the Glady reports should cover the perspectives of the victims and that the concerns of the investigation stem from "ad-hoc, semi-hearted approaches to Glades" across the country. Anyone who spoke to the National Post for this story said that they strongly support the call for an investigation to improve access to Gladue reports, which are largely unavailable for perpetrators in several provinces.
"Every statistics we have for indigenous prisoners … shows that more indigenous people are now in prison than sent to prison … 1999," said Jane Dickson, a law professor at Carleton University, adding that national standards are needed for Gladue reports.
The final report also calls on the federal government to consider violence against indigenous women as an aggravating factor during sentencing, and to consider murder in domestic violence cases as first degree murder, and both recommendations in order to equalize tougher punish those who hurt Native women. Catherine Hensel, Secwepemc's attorney and member of the Indigenous Bar Association, said she supports these calls as a tool for correction of systematic bias, which often sees lighter sentences that apply to victims of indigenous women. "The evidence has shown that we simply can not rely … on the discretion of the courts," she said.
But Rudin said such recommendations are problematic in practice, partly because they could put judges in a position to decide who is a Native. "I am not fond of increasing the penalties for people," he said. "There are people who are dangerous, but we already have opportunities to deal with these people in the Criminal Code."
Dixon said such changes could have unintended consequences for indigenous offenders. "We need to be very careful here, because although there are absolutely a large number of non-native men who violate women of indigenous peoples, there are also many indigenous men who sacrifice the indigenous women," she said.
The final report casts doubt on the most frequently cited statistics that 70 per cent of the murdered indigenous women were killed by indigenous men, saying the assessment "is not factually based". But it does not give its own estimates, instead it recommends that governments fund research for men who commit violence against indigenous women.