"RESORT TO THE EASY ANSWER": GLADUE AND THE TREATMENT OF INDIGENOUS NCRMD ACCUSED BY THE BRITISH COLUMBIA REVIEW BOARD.

• Author: McCleery, Kyle

1. INTRODUCTION

   More than 25 years ago, Parliament sought to address the over-representation of Indigenous people in Canada's criminal justice system by enacting section 718.2(e) of the Criminal Code. (1) This provision directs sentencing courts, in considering alternatives to imprisonment, to give "particular attention to the circumstances of Aboriginal offenders." (2) Following its entry into force, this provision was considered by the Supreme Court of Canada in R v Gladue. (3) In Gladue, the Court recognized the "acute problem of the disproportionate incarceration of aboriginal peoples" and acknowledged it as the product of "systemic and direct discrimination". (4) Significantly, the Court suggested that, despite section 718.2(e)'s direct application only to sentencing, the principles identified in

   Gladue may apply more broadly within the Canadian criminal justice system. (5)

   Since Gladue, significant judicial and academic attention has been devoted to the application of those principles outside of the sentencing context. Over the past two decades, Canadian courts have applied Gladue principles to a broad range of criminal justice processes, including bail decisions, (6) dangerous and long-term offender applications, (7) parole hearings, (8) and extradition proceedings. (9)

   In a 2005 decision, the Court of Appeal for Ontario held that Gladue applies to disposition hearings by provincial Criminal Code review boards concerning accused persons found not criminally responsible on account of mental disorder ("NCRMD") under section 16(1) of the Criminal Code. (10) Aside from this decision, the applicability of Gladue to review board proceedings has received little attention from the courts or academia. This article is intended to contribute to filling this gap in the literature by examining the treatment of Indigenous accused by one provincial review board. (11)

   The article begins with an overview of section 718.2(e) of the Criminal Code and its application by the Supreme Court of Canada in Gladue and R v Ipeelee, (12) in which the Court clarified and expanded upon the reasoning in Gladue. It then turns briefly to the application of Gladue to judicial and administrative criminal justice proceedings other than sentencing-including bail, parole, extradition and dangerous and long-term offender applications-before focusing specifically on the application of Gladue by provincial review boards. After discussing the very limited treatment of this issue by Canadian courts, it turns to an analysis of initial disposition decisions made by the British Columbia Review Board over the course of a two-year period, examining the characteristics of the Indigenous and non-Indigenous populations subject to these decisions as well as the Review Board's reasoning in decisions involving Indigenous accused. After determining that the Review Board is doing little to give effect to Gladue principles, the article considers the reason for this and how it may be rectified, ultimately determining that the legislative framework that governs the Review Board's decision-making process allows little opportunity for the application of Gladue and that legislative reform is required.

   The treatment of Indigenous accused by provincial review boards is worthy of scrutiny because it is part of the Canadian criminal justice system in which Indigenous people have historically been over-represented. The review board system is unique, however, in that it lies at the nexus of the criminal justice and mental health systems. Like the over-incarceration of Indigenous people, the mental health challenges faced by Indigenous people and communities, including high rates of mental illness, substance abuse, and suicide in some communities, are reflective of the legacy of colonialism. (13) Accordingly, it is of particular importance that the principles articulated in Gladue are given meaningful expression in this context.

2. SECTION 718.2(2) AND R V GLADUE

   1. SECTION 718.2(E) OF THE CRIMINAL CODE

      Section 718.2(e) of the Criminal Code requires courts to give particular consideration to the circumstances of Indigenous offenders in sentencing. Enacted by Parliament in 1996, the section requires a sentencing Court to consider

      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. (14) This provision was intended to address the over-representation of Indigenous people within Canada's incarcerated population by "oblig[ing] the judiciary to reduce incarceration of Aboriginal offenders and to seek reasonable alternatives for Aboriginal offenders." (15) This purpose was made clear by Allan Rock, then the federal Minister of Justice, speaking before the House of Commons Justice Committee on 17 November 1994:

      The reason we referred there specifically to aboriginal persons is that they are sadly over-represented in the prison population in Canada. I think it was the Manitoba justice inquiry that found that although Aboriginal people make up only 12% of the population of Manitoba, they comprise over 50% of the prison inmates. Nationally aboriginal persons represent about 2% of Canada's population, but they represent 10.6% of persons in prison.... What we're trying to do, particularly having regard to the initiatives in the aboriginal communities to achieve community justice, is to encourage the courts to look at alternatives where it's consistent with the protection of the public--alternatives to jail--and not simply resort to the easy answer in every case. (16) Despite this intention, the provision was not universally lauded. (17) Notably, in the Royal Commission on Aboriginal People's Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada, the Commission criticized the provision for failing to give priority to "restorative and healing goals". (18) It went on to indicate in the following passage how a sentencing regime that did so would look:

      An Aboriginal statement of purposes and principles would likely read quite differently. Primacy would likely be given to restoring harmony and peaceful relationships through the healing of both offenders and victims and the provision of restitution and compensation for harms done. In other words, healing and restitution would be at the centre rather than on the margins of the process. (19) B. GLADUE AND IPEELEE

      The Supreme Court of Canada first considered section 718.2(e) in R v Gladue, three years after its enactment. Gladue was an appeal of a three-year sentence imposed on an Indigenous woman convicted of manslaughter in the stabbing death of her common-law husband. (20) The sentencing judge held that section 718.2(e) did not apply because the accused was not living on a reserve at the time of the offence. (21) The decision was upheld by the British Columbia Court of Appeal. (22)

      Consistent with the motivation articulated by the Justice Minister at the time of its enactment, the Court held that the purpose of the provision is to respond to the "acute problem of the disproportionate incarceration of aboriginal peoples" in Canada, in part by recognizing the role of "systemic and direct discrimination" that has resulted in over-incarceration. (23) The Court concluded that the sentencing judge had erred in declining to apply section 718.2(e), which it held must be considered in every case involving an Indigenous offender. (24) Any judge passing sentence on an Indigenous person is required to take judicial notice of the systemic and background factors affecting Indigenous people, including "low incomes, high unemployment, lack of opportunities and options, lack or irrelevance of education, substance abuse, loneliness, and community fragmentation." (25) Further, the Court held that a sentencing judge is obliged to seek out information about the offender "as an aboriginal person" even where it is not adduced by counsel. (26)

      Significantly, the Court interpreted section 718.2(e) to be a remedial provision that requires courts to approach the sentencing of Indigenous offenders differently than that of non-Indigenous offenders:

      In our view, s. 718.2(e) is more than simply a re-affirmation of existing sentencing principles. The remedial component of the provision consists not only in the fact that it codifies a principle of sentencing, but, far more importantly, in its direction to sentencing judges to undertake the process of sentencing aboriginal offenders differently, in order to endeavour to achieve a truly fit and proper sentence in the particular case. (27) The years that followed Gladue were marked by the continued overrepresentation of Indigenous people in the Canadian criminal justice system and, in the eyes of some commentators, by the inconsistent and improper limitation of the principles identified in the case. In a 2009 article focused on the application of Gladue by appellate courts, Kent Roach recognized the significance of the Gladue decision, but expressed concern over its implementation:

      If Gladue remains an important step forward in recognizing the failures of the justice system with respect to Aboriginal people, its implementation at a national level represents two disappointing steps back: the failure to reduce Aboriginal overrepresentation and the focus on the seriousness of the offence. Indeed, some of the cases even demonstrate a third step back, namely an acceptance of a pessimistic and legally wrong idea that some repeat and serious offenders have placed themselves beyond the purview of Gladue, (28) Two years later, David Milward and Debra Parkes identified similar concerns in their analysis of the application of Gladue in Manitoba. Milward and Parkes attributed the failure of Gladue to fulfill its potential to the persistence of the following three myths related...