A strange thing happened earlier this year. Back in March, there was a Toronto Star article making it way around my social media.[1] My friends were posting and sharing the article. Some of these friends are in law school and some are simply interested in the law. Everyone kept complimenting the decision. And the lawyering folks on social media? Majority of them also complimented the decision and few (if only one) did not approve.[2] Sure, the decision was a good one. Yet, the discussions missed the obvious point: the glaring issues with the criminal justice system especially pertaining to Aboriginal persons.

Yes, it is important to have decisions written in clear and plain language. Though, I have to ask, what happened to those 7+ years of education/professional training?

Yes, it is important to have judges who care about and respect the people who stand in front of them in their courts. But, shouldn’t this be basic treatment of any person another one meets?

Yes, it is important to have standards within our own justice system. But why are we applauding and commending basic skills that should be expected by all of us (judge or not) in the legal community, as trained, educated folks.

As people kept commenting on the decision, R v Armitage, I grew increasingly frustrated.

I just kept shouting: “You are missing the point!”

That point? Well, the decision cites R v Gladue which is the principal case that interprets s. 718.2(e) of the Criminal Code. Section 718.2(e) tells the sentencing judge that they must consider “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.”[3] This section does not mean that sentencing judges think more about the circumstances of the Aboriginal persons, but that they consider their unique circumstances, like their social backgrounds and histories. 

Parliament enacted s. 718.2(e) to deal precisely with the over-representation of Aboriginal people in the justice system.[4] Following the R v Gladue Supreme Court decision in 1999, the Gladue court, which Justice S. Nakatsuru refers to in Armitage, was created. The Gladue court is a specialized court dealing explicitly with Aboriginal persons who have been arrested and charged with criminal offences.[5] More appropriately, however, the Gladue court may also be referred to as a sentencing court. Calling the Gladue court system a sentencing court re-positions the framing of Armitage.

In R v Armitage, Nakatsuru J. outlines the history of Gladue and the history of Jesse Armitage. Jesse’s histories include history of intergenerational trauma, history of sexual abuse, history of substance use, lack of western education and lack of employment experience. Other histories? Jesse first came into contact with the justice system as a youth. He also committed mainly non-serious offences (property-related and breaches of court orders). And how did Jesse end up in the Gladue court that day in front of Justice Nakatsuru? He was arrested for stealing a television in order to purchase things he needed. Jesse’s history and reality isn’t much different from other Aboriginal people who end up in the prison system. Other Aboriginal folks are usually arrested and incarcerated for similar offences: breaches and non-serious offences. They also share similar histories.

Justice Nakatsuru further outlines how Jesse ended up in front of him. Jesse had already been in custody. Jesse had also been accessing relevant services while in custody. Jesse wanted to continue to access those services. And so, Jesse asked to serve the remainder of his conditional sentence while in custody to access the services. For Jesse to ask to serve the remainder of his conditional sentence in custody to access services, I commend Jesse.

Jesse’s histories tell the story of many Aboriginal persons in the justice system, which Justice Nakatsuru also admits. The stories remain the same. And still, a court created expressly to deal with the over-representation of Aboriginal people in prison does not address the fact that services to help with rehabilitation of an individual can only be accessed while in custody.

I have been in the Gladue court system. I have both lived experience and educational knowledge about this court system. I would argue, however, the lived experience is more valuable than the educational knowledge.

In order to access the services that a Gladue court outlines after sentencing, a person must plead guilty. Maybe it’s just me–I seem to be the only one that finds it completely bizarre that one must plead guilty to benefit from a scheme that is meant to deal with the overrepresentation of Aboriginal people in prison while in custody. Shouldn’t there be something more suitable in place before an Aboriginal person gets to that position of standing in court, pleading guilty, and having the stain of a criminal record to deal with the over-representation of Aboriginal people in prison? Shouldn’t there be something in place to help deal with the overrepresentation of Aboriginal people in the prison system before they are arrested? Specifically, can we stop arresting and criminalizing Aboriginal people to deal with the over-representation of Aboriginal people in prison? It’s absurdity.

Sure, some people might try to say, “Stop committing crime then.” But if we look at Jesse’s histories, we see the histories of many Aboriginal people. For example, the histories of intergenerational trauma, which is directly connected to all the other things compounding the issue of the over-representation of Aboriginal people in the prison system, is all too prevalent. Hello, Truth and Reconciliation. And if we look precisely at Jesse’s history: when a person has a lack of western education and lack of employment experience, how is that person supposed to just walk up to the next place and find employment to help buy the things he needs (whatever those needs may be)? Jesse did what he knew best to survive: taking things. Taking things just like the land has been taken from Aboriginal peoples for centuries. And to deal with other structural issues like racism when finding employment or even finding a place to live in Canadian society—what then?

I suppose Justice Nakatsuru did a good thing when he described Jesse like a tree. But really, a tree? I guess when you look at the state of Aboriginal land and the natural resource extraction industry, and then sure, Jesse is like a tree. And sure the prison system is designed to do what it was always designed to do: Get rid of the Indian problem. 

[1] http://www.thestar.com/news/gta/2015/03/05/judge-writes-simple-and-inspiring-legal-decision-for-repeat-offender.html

[2] http://canliiconnects.org/en/cases/2015oncj64 and http://www.slaw.ca/2015/04/16/in-praise-of-judicial-empathy-humility-and-simplicity/

[3] Sadly, also earlier this year, our current conservative government amended s. 718.2(e) to include the phrase “circumstances and consistent with the harm done to victims or to the community.” A principle issue with these amendments include the fact that it sginificantly alters the Gladue principles and that the amendments are “redundant” (See: http://www.parl.gc.ca/About/Parliament/LegislativeSummaries/bills_ls.asp?source=library_prb&ls=C32&Parl=41&Ses=2&Language=E&Mode=1). This comes into effect 90 days after April 23, 2015. 

[4] See R v Gladue at para 45-48.

[5] http://www.justice.gc.ca/eng/rp-pr/csj-sjc/ccs-ajc/rr12_11/rr12_11.pdf