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Lawyer Jonathan Rudin, program director of Toronto-based Aboriginal Legal Services, has been a key player in 30 years of efforts to set up specialized Indigenous sentencing proceedings across Canada. Mr. Rudin feels the pandemic has set the IPC system back. “It’s very hard to establish relationships with people over Zoom,” he says. “The whole point of the Gladue courts was to slow the process down and take a little bit more time. A lot of innovative things we are doing have come to a stop.” Carleton University professor Jane Dickson also suspects that the pandemic will turn judges’ minds away from restorative justice and toward clearing caseloads for the foreseeable future. “This is going to make the culturally friendly approaches in the court probably pretty unfeasible for a while,” says Prof. Dickson, who studies alternative justice. But she notes the pause may also amount to an opportunity for Canadians to better confront a stark reality. “The imprisonment of Indigenous people continues to be a growth industry in this country,” Prof. Dickson says. Story continues below advertisement A prayer tie sits atop ‘courtroom 101’ binders for reporters in the court. Indigenous people make up about 5 per cent of Canada’s population. But the proportion of Indigenous prisoners as inmates of federal prisons has now surpassed 30 per cent. The numbers are even more stark for Indigenous women,
who account for 42 per cent of the female prison population. Governments have been considering this issue for decades – at least as far back as 1996, when parliamentarians attempted to address the problem by changing the Criminal Code with a law directing sentencing judges to use alternatives to incarceration whenever possible, while paying “particular attention to the circumstances of Aboriginal offenders.” Three years later, in the 1999 Gladue ruling, the Supreme Court fleshed out what exactly this meant in considering the case of Jamie Gladue, a First Nations woman who had fatally stabbed her boyfriend on her 19th birthday. Ms. Gladue wasn’t living on a reserve, so the lower courts had been confused about whether her manslaughter conviction triggered the sentencing consideration. The Supreme Court settled matters by saying courts need to focus on offenders’ personal history, not their geography – noting that where a person lives lends far less context than a critical look at the decades of injustices and trauma suffered by Indigenous communities. The ruling changed Canada’s legal landscape, leading to the adoption of directives known as the Gladue principles. But the processes for those principles and outcomes vary from province to province, from hearing to hearing, and from judge to judge – and there remains a lack of data and national standards on how they are being implemented. “There are a lot of people in the system who are very well-meaning and who genuinely want to try to get some change, but nobody has taken any leadership on this,” Prof. Dickson says. Story continues below advertisement A motif on the outside of the court building, top, depicts the ‘Seven Grandfather’ teachings as a continuous line forming a turtle, beaver, wolf, buffalo, eagle, bear and sable. Inside the building, bottom, traditional smudging kits and handmade shovels that resemble canoe paddles are on display.
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