Kenneth Jackson
APTN National News
It’s been nearly 16 years since the Supreme Court of Canada made its historic “Gladue” ruling setting in motion a direct connection to the trauma of residential schools to the parade of Aboriginal people before the courts across the country.
And one recent case before the Alberta Court of Appeal illustrates how judges can still disagree with how to interpret Gladue factors in some jurisdictions.
It involves an Aboriginal man convicted of a violent home invasion in Edmonton in July 2010.
One night he went into a jealous rage over his former girlfriend not answering his telephone calls. He booted down the door of where she was staying assaulting her and her female friend in the middle of the night.
The trial judge sentenced Curtis Quinn, 44, at the time, to five years in prison.
He appealed, citing, in part, that the sentencing judge failed to properly apply Gladue principles.
The facts of the crime weren’t disputed among the panel of three judges hearing Quinn’s appeal June 17, but they didn’t all agree on how Gladue principles were applied in the case.
Like the sentencing the judge, appellate justices Jack Watson and Frans Slatter – who dismissed the appeal – agreed, in part, that because Quinn wasn’t connected to his Aboriginal culture they didn’t really apply.
However, the single dissenting judge said the disconnect was exactly why they should be applied, arguing she would have reduced the sentence to four years based on Quinn’s upbringing and family history.
“The sentencing judge erred in putting little weight on the appellant’s Aboriginal culture after observing that he had little past or ongoing commitment to Aboriginal culture,” wrote Justice Myra Bielby in the July 23 decision.
The sentencing judge said Quinn was unable to “demonstrate a systemic cultural oppression that has contributed to his committing these offences” and that only the appellant’s mother may have Gladue factors to consider since her mother, Quinn’s grandmother, attended residential schools.
But it was the effects of Quinn’s grandmother’s time spent in a residential school that got passed along to future generations said Bielby.
Quinn suffers from partial Fetal Alcohol Syndrome based on his mother’s drinking and sniffing glue while pregnant.
She testified at Quinn’s trial that she was physically and sexually abused as a child.
Not only did her mother attend residential schools, but so did both of her grandparents. All developed substance abuse problems.
“It is difficult to imagine a more direct link between an offender’s Aboriginal ancestry and the circumstances underlying his commission of crime than that offered as a result of brain damage from a parent’s substance abuse during pregnancy,” said Bielby. “It is important not to downplay the inter-generational effects of colonialism and residential schools.”
Gladue principles gets its name from Jamie Gladue, an Aboriginal woman who appealed her manslaughter sentence to the Supreme Court in 1999. The case is known as R. v. Gladue.
The high court didn’t change her sentence, instead it issued some ground rules for lower courts to address the critical over-representation of Aboriginal people in the justice system.
From that day onward, courts had to take into account Gladue principles:
(a) the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and
(b) the types of sentencing procedures and sanctions, which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection.
The court made another ruling in 2012, R. v. Ipeelee, reinforcing the need for courts to take Gladue principles seriously.
“Courts have, at times, been hesitant to take judicial notice of the systemic and background factors affecting Aboriginal people in Canadian society,” the Supreme Court said in Ipeelee. “To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples.”
It’s not a “get out of jail free” card, like some critics argue saying it creates a two-tiered justice system in Canada but an admittance that government policy over the years has disrupted generations of Aboriginal people according to the Supreme Court.
Despite the Supreme Court’s direction, courts continue to struggle said Bielby.
“Even post-Ipeelee appellate courts like ours have had to be reminded not to fall back into causation-type reasoning when sentencing Aboriginal offenders, particularly where the inter-generational effects of residential schools are concerned,” said Bielby.
Calls to Quinn’s lawyer were not immediately returned.
– with APTN National News files.
Wow. This sparked an hour long debate between myself and my love. He’s status Mohawk and I have no direct indigenous link. Curiously I argued in support of the idea of intergenerational trauma being a mitigating factor while he sees the Gladue principal as an unacceptable excuse for antisocial behaviour. Made us both think and examine our personal experience with human nature.
Gladue is a good first start but needs to be modified to be demographicly corrected, it should be anywhere. Besides contriving attention it does little to abade individual alleged criminal acts. And yes he demonstated by his actions that night.