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For Indigenous victims of crime, Gladue can be a difficult topic

“It’s really, really hard to understand everything”
The Andrew Philipsen Law Center in downtown Whitehorse (Crystal Schick/Yukon News file)

Kathy Magun still thinks of her father often.

A Kaska elder who lived in Watson Lake, Olson Wolftail, 87, had a quiet, gentle demeanor that belied the decades of pain he endured — the racism he faced as an Indigenous man who spoke no English, of having his eight children snatched away to be placed in residential school and, later, raising the children on his own, wearing down his body working long hours at a sawmill to make ends meet.

And yet, he remained strong and loving, holding on to Kaska traditions and knowledge that he passed down to his children and, eventually, grandchildren.

Wolftail was a rock in his family and community, much respected and much loved.

But these days, Magun said, memories of her father are intertwined with the horrific images of how his life came to an end — he was beaten to death, in his own home, in 2016 by someone who wasn’t even supposed to be in Watson Lake at the time.

Alfred Chief Jr., originally charged with second-degree murder, later pleaded guilty to the lesser charge of manslaughter last year.

He was sentenced to four years and seven-and-a-half months in jail, a sentence Magun feels does not do her father justice.

And she pins the blame for what she sees as an overly lax sentence mainly on one thing — Chief, who is also Kaska, had a Gladue report done.

* * *

Gladue reports have been a tricky topic since the Supreme Court of Canada issued its landmark decision, R v. Gladue, in 1999.

Gladue’s namesake is a Cree woman, Jamie Tanis Gladue, who pleaded guilty to manslaughter for killing her fiancé. The judge determined because the couple had lived off-reserve, Gladue was not entitled to special consideration as an aboriginal offender.

Gladue eventually took her case to the Supreme Court of Canada. While a panel judges found her sentence of three years to be fair, they used their decision to clarify that all Indigenous offenders, regardless of where they reside, are entitled to special consideration during sentencing, something that’s crucial for addressing the over-representation of Indigenous people in Canadian prisons.

The method of putting together Gladue reports varies between jurisdictions. Typically, a writer will interview the offender, their family members and other people in the community to identify the offender’s personal circumstances as well as systemic issues — for example, the intergenerational trauma inflicted by residential schools or the ’60s Scoop — that may have contributed to how and why the offender committed a crime.

In legal terms, the reports help define offenders’ moral culpability, Yukon Crown attorney Noel Sinclair explained — it is, in a way, society acknowledging responsibility for the harm state policies and actions have had on Indigenous people.

“The Gladue process … is really designed around giving the court information about the offender’s community and things that happened in that community that might diminish the offender’s moral responsibility for what they’ve done, for the crime that they’ve committed,” he said.

The reports also look at alternatives to incarceration, such as programs, community supports and restorative justice initiatives to help with rehabilitation.

A stumbling block for some Indigenous victims of crime, though, is the fact that often, they too have experienced the same kinds of pain as the offenders.

“My parents went to residential school too,” goes a common lament heard in courthouse lobbies, “but I’ve never killed anybody.”

* * *

Like Magun, April Baker didn’t know much about the criminal justice system until the worst happened — her son, 18-year-old Raine Silas, died in 2016 hours after being smashed in the head with a wooden plank.

Tristan Joe, a fellow citizen of Selkirk First Nation, would plead guilty to manslaughter, down from the original charge of second-degree murder. After a sentencing hearing, which included a Gladue report, a judge sentenced Joe to four and a half years in jail, which worked out to 20 months more of incarceration after taking into account the time Joe had already spent behind bars.

Baker said hearing the judge hand down that sentence felt like a slap to the face.

“Our whole family was really upset. Right from the beginning we told the (Crown), ‘we don’t want any deals, we don’t want a Gladue report,’” she said. “… And the Crown said, ‘There’s nothing we can do about it because the defence is going to ask for the Gladue report, he’s going to get it.’

“(Joe’s) sentence was BS because of that. And I just don’t feel in really serious crimes that these people are doing, they shouldn’t be allowed to have a Gladue report. They should be held accountable for what they did.”

Baker said she’s not opposed to Gladue reports in general — she supports their use in cases of lesser crime where offenders can draw a clear, direct link between their life experiences and resulting trauma.

However, for her, all bets are off when a person’s actions lead to someone else being seriously injured or killed.

“It’s really, really hard to understand everything,” she added, “because my grandparents and my mother went to residential school, and all her siblings, and there was a lot of dysfunction that came from that, but you don’t see me going (and committing crime).”

Magun had a similar opinion, noting that her father suffered just as much, if not more, from systemic racism than his killer.

“All I wanted to see was justice for my dad and I wanted to ensure that my dad’s voice was heard … And he was affected, I feel, more by just everyday living,” she said.

Both women said they felt the Gladue report was just yet another way the offender, not the victim, was prioritized in the court process, when they think it should be the other way around.

“Who’s there to really talk for (my father) as a victim?” Magun said. “He wasn’t there, you know? He was murdered viciously and I just feel like a lot of attention was more given to the offender than was given to my father.”

* * *

The frustration surrounding Gladue is not unique to the Yukon.

“We see it wherever Gladue is being applied across the country,” said Jonathan Rudin, program director at the Toronto-based Aboriginal Legal Services. The organization is considered among the leaders when it comes to assisting Indigenous people in the criminal justice system. Rudin has visited the Yukon to assist with Gladue writer training sessions.

While victims’ frustration is understandable, Rudin said he thinks it’s misdirected — the deeper problem is not a failure on Gladue’s part, but a failure in the justice system to provide meaningful, long-term support to victims.

“The justice system in Canada really provides very little in the way of support services for victims, and what … the system tells victims, is, ‘We will measure the degree of hurt and harm you have suffered by the sentence we give the offender,’” Rudin said.

“So we make the sentencing process a zero-sum game — whatever the offender gets, then the victims and the family think they have lost. And that’s just a false equation.”

The criminal justice system can be confusing for the average layperson, and even more so for a victim or family suddenly thrust into it while still dealing with what can be very fresh, unaddressed trauma.

Combine those things with the misconception that a Gladue report is a “get-out-of-jail-free card,” and Gladue becomes an easy target for people to lash out against, Rudin said.

“The legal system moves … way too fast for most people to understand and uses language that’s shorthand that only lawyers and people involved in the system really get, and that contributes to frustration and anger and misapprehensions,” he said.

“…I think there has been, certainly, outreach to Indigenous people who are offenders about Gladue but I don’t know that there’s been a lot of outreach to victims and that, I think, that’s a problem.”

Sinclair, the Yukon Crown attorney, agreed.

“What you don’t necessarily see in Gladue and in that specific part of the Criminal Code is recognition of the disproportionate victimization of First Nations citizens, particularly women and girls, in the criminal justice system … and I think the frustration we’re hearing from victims and witnesses arises out of that sense of unfairness,” he said.

While prosecutors do their best to explain every step of the legal process to victims’ families, sometimes, Sinclair said, some parts just don’t get through.

“There are so many factors to go into the consideration of a fit sentence … and it’s difficult to explain all that to someone who is grieving, to someone who is traumatized, sitting in a room and listening to a lawyer sort of blab on,” he said.

The point of Gladue is to focus on the offender, Sinclair explained, but that doesn’t mean views of victims and their families don’t have a place in the process through victim impact statements and community impact statements, presented during sentencing hearings.

“I certainly understand victims who want retribution,” he said. “I mean, that is a natural human need that is perfectly understandable.”

Sinclair said prosecutors act in the public interest and consider a range of perspectives and factors like rehabilitation, denunciation and deterrence.

Also absent from many conversations surrounding Gladue reports are the good they can do, said Shadelle Chambers, executive director of the Council of Yukon First Nations.

“We know some stories (where) the Gladue has really helped the client address their underlying issues, access the services they needed and continued to be integrated in the community,” said Chambers, who also sits on the Yukon’s Gladue management committee.

She said there needs to be more education around the Gladue principles.

“… When people don’t always have the right background information or understanding of the context, there can be a lot of misconceptions as to what Gladue is and what Gladue isn’t.”

* * *

If she could go back to the sentencing hearing of her father’s killer, Kathy Magun said she would wish for one thing — to know more about the process about to unfold in court.

If she had understood better, she would have been able to advocate for her father better, she said.

It’s something she still thinks of often.

“I just find myself going back and things I never really questioned, I’m beginning to question now,” she said. “I think my regret is not understanding, sometimes, the words the lawyers were using, you know? What were they leading up to? … I find myself sort of thinking, maybe I didn’t do as well as I could have if I had known more about what was happening, because I was so devastated by the whole thing.

“There’s a lot of things I don’t understand. So I think that in itself contributes to my feeling of maybe I could have did more.”

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