Prime Minister Stephen Harper meeting with Chiefs, Jan., 2013/PMO
By Kenneth Jackson
APTN National News
OTTAWA – When Prime Minister Stephen Harper was meeting with First Nation leaders in Ottawa during the height of Idle No More the Prime Minister’s Office was directing the Justice department to reword portions of the Criminal Code to “diminish” the effect of Gladue principles for Aboriginal offenders before the courts, APTN National news has learned.
Several sections of the Criminal Code were to be adjusted under the direction of the PMO as part of the upcoming release of the Victims’ Bill of Rights Act, Bill C-32, to purposely take aim at Gladue principles according to sources.
The directive from the PMO first came in 2012 to then justice minister Rob Nicholson and was being worked on by Justice lawyers as Harper sat down with First Nation leaders Jan. 11, 2013 to discuss controversial government bills, sources told APTN.
The bill was later introduced to Parliament in April 2014 under current Justice Minister Peter MacKay.
The changes ordered by the PMO are directed at section 718.2 (e) of the Criminal Code. It currently directs judges to use “all available sanctions, other than imprisonment, that are reasonable in the circumstancesshould be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.”
The change to 718.2 [e] under Bill C-32 adds that a judge must also now consider “the harm done to victims or to the community.”
That change has the potential to derail Gladue principles according to several witness called to speak before Parliament’s justice committee regarding the bill, including Eric Gottardi, chair of the Canadian Bar Association’s criminal justice section.
“You could still have an emphasis of victim’s rights without potentially throwing a wrench into the works of the Gladue considerations. I don’t know that it’s necessary. I don’t see the benefit. And certainly the downside far outweighs the benefit,” Gottardi told the committee Nov. 6. “It’s unpredictable at this point.”
Section 718.2 [e] is known as the “Gladue section” of the Criminal Code.
An amendment to the code was written into law in 1996 by former Liberal justice minister Allan Rock and was first tested at the Supreme Court of Canada three years later when R. v. Jamie Gladue made its way to the country’s highest court. Originally sentenced to three years for killing her spouse, Gladue appealed to the SCC to reduce her sentence.
The court didn’t change her sentence, but issued groundbreaking orders to judges in Canada that they had to take an Aboriginal offender’s past into account not only for sentencing, but to also look for alternatives to custodial sentences to address the critical over-representation of Aboriginal people in custody.
It’s generally applied prior to sentencing with the use of “Gladue reports” that tells the story of an offender’s past. But Gladue principles are applied whenever an Aboriginal person’s liberty is at stake, including bail, dangerous offender or parole hearings.
Bill C-32 was debated in Parliament’s justice committee up until December and is now before the Senate having passed through the House of Commons.
Once it receives royal assent, and no expects it not to, changes to Criminal Code will come into force 90 days later.
That’s when the proposed changes to the Gladue section will be tested in court.
According to the sources APTN spoke to, the PMO is hoping the courts give more weight to the effect the crime has had on the victim or community rather than an offender’s past and the Gladue principles.
APTN National News contacted the Prime Minister’s Office for comment but as of this posting had not received a response.
Ottawa criminal defence lawyer Michael Spratt is scheduled to speak before the Senate committee debating the bill Thursday.
Spratt believes the changes could lead to the “slow erosion” of Gladue principles.
“Adding a consideration of harm to victims (financial, emotional, physical?) would potentially limit the alternatives to imprisonment and dilute Gladue considerations,” he said.
The Supreme Court reaffirmed its position on Gladue principles in April 2012 involving the case against two Aboriginal men (R. v. Ipeelee) and told lower courts the “application of the Gladue principles is required in every case involving an Aboriginal offender.”
That includes serious and violent cases, like sexual assault and murder.
MacKay told committee in October he believed Gladue principles were useful in “some instances” but appeared to take aim at the Supreme Court.
“However, there is also the ongoing need to balance those considerations when there is serious violent crime and sexual violence against individuals,” he said, adding it would all be in the hands of judges to ultimately decide.