Section 718.2 reads: “A court that imposes a sentence shall also take into consideration the following principles: (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders” (emphasis added). The imposition of a conditional sentence by a judge is restricted in several ways, including the fact that the period of imprisonment is less than two years, that the offender has not been convicted of a serious personal injury offence, and that the judge is satisfied the offender would not threaten community safety if a conditional sentence were imposed. The “relaxed atmosphere” involves all participants in the case, including the judge, Crown, defence counsel, the youth and anyone involved in supporting the youth (parents, care giver, social worker, group home supervisor, probation officer, etc.) For example, consider the importance of culture and culture clash in the development of new approaches to Indigenous justice. From 2006 to 2016, the number of Indigenous people living in a centre of this size increased by 59.7 percent (Statistics Canada 2017a). ALS Gladue writers provide report writing services to at least twenty Ontario courts upon request. The Tsuu T’ina First Nation Court in Alberta is a good example. A common aim of the approaches discussed in the following sections has been to reduce the overrepresentation of Indigenous people in the criminal justice system, particularly in custodial facilities. Bail relates directly to issues discussed earlier regarding systemic discrimination, s. 718.2(e) and the Gladue decision. The case law review material was provided by the Research and Statistics Division, Department of Justice Canada. Unsurprisingly, judges in the latter category, especially in 2018, were more likely to request a Gladue Report in order to fully understand the offender’s background and to grant bail with appropriate conditions. The Toronto Bail Program agreed to adapt its guidelines so that Indigenous persons without a surety, including those with histories of failing to appear in court, can be considered for supervision. According to Anand, “[i]f one of the functions of the Supreme Court is to clarify the law and provide effective guidance to lower courts, then Gladue is a failure” (Anand, 2000: 414). (This point was made consistently over the years by the Office of the Correctional Investigator.). In the case of conditional sentences, this means a disproportionate likelihood of being sent to jail. In fact, according to the Court, “statistics indicate that the overrepresentation and alienation of Aboriginal peoples in the criminal justice system has only worsened”. On representation, the finding by the Auditor General is that there is overrepresentation compared to other countries. In other words, people are capable of defining themselves as a community according to the criteria that matter most to them. Selection bias results when the procedures used to select a sample result in over representation or under representation of some significant aspect of the population. Australian crime: … This marginality is characterized by the problems noted earlier in the report: poverty, unemployment, low educational attainment, poor housing, and poor mental and physical health. In the Indigenous context, alternatives are often categorized under the umbrella “restorative justice.” The Court referred to “restoring a sense of balance to the offender, victim, and community, and in preventing future crime.” This is very much a restorative approach to dealing with crime. As the Supreme Court stated in Ipeelee. The author posits that Western theoretical approaches influencing child welfare practice and legislation have not adequately addressed the over-representation of First Nations children in … In its examination of Manitoba courts, the Aboriginal Justice Inquiry of Manitoba identified the denial of bail and pre-trial detention as concurrent problems commonly facing Indigenous accused (1991: 221-4; 360-1).Footnote 24 The Commissioners noted that, according to analyses of provincial court data, Indigenous men and especially women were significantly more likely to spend time in pre-trial detention than non-Indigenous accused. However, Roach and Rudin (2000) predicted one year after the Gladue judgment that while it was positive in many respects, it was not likely to reduce the disproportionate rate of incarceration of Indigenous offenders, a prediction that appears to have been accurate. The importance of ensuring the relevance of programs to individual communities is discussed further below. Earlier this report addressed the unacceptably high rates of poverty and unemployment, and the substandard levels of housing, education, and health care currently experienced in Indigenous communities. Why Punguza Mizigo is populist, misrepresents cost of governance Scotland", the charity for "care experienced" youngsters, said: "The overrepresentation of care-experienced people in missing statistics is worrying. These data describe and measure the flow of persons through correctional services over time. In June, 2011, Justice Marion Cohen of the Ontario Court of Justice, Youth Court Division began hearings in the Aboriginal Youth Court in Toronto, the first of its kind in Canada. Conditional sentences are sentences of imprisonment (jail) that are served in the community and strictly monitored. Five aspects will be addressed: first, changes to the Criminal Code regarding sentencing introduced by the Government of Canada and subsequently elaborated upon by the Supreme Court of Canada; second, the establishment of Gladue Courts; third, issues of bail and remand; fourth, a review of Gladue case law; and fifth, community initiatives and government relations with regard to addressing Indigenous justice issues. It is important to remember that community-based approaches that involve the court, such as circle sentencing, are not appropriate in all cases. In June 1995, Parliament passed Bill C-41, a bill amending the Criminal Code with respect to sentencing. The Department of Justice Canada has worked to address these concerns; hence the relative success of the AJS/IJP with respect to Indigenous communities. Regrettably, this has not always happened and, until recently, there were concerns expressed in the literature and by Indigenous communities and organizations that top-down approaches prevented the initiation of culturally relevant and effective community-based alternatives. Similarly, and more regularly, other courts are using the circle model. Dickson-Gilmore and La Prairie are careful to note that the severity of these conditions and the degree of Indigenous marginality vary among different groups and in different parts of the country. This is a significant policy decision by the Toronto Gladue Court. One of the Manitoba Justice Inquiry’s “inherently subjective” factors in decision making regarding bail is the ability of the accused person to cover the cost of bail or provide a surety. The court now has an Aboriginal Bail Program supervisor who is associated with the Toronto Bail Program and who interviews and screens accused without sureties for eligibility for release. The judge therefore concluded that Ms. Gladue was not subject to s. 718.2(e) whereby all reasonable and available sanctions other than imprisonment should be considered for all offenders, especially Indigenous offenders. A comprehensive strategy is required to address continuing problems of colonialism, social and economic marginalization, and systemic discrimination. Return to footnote 10 referrer. Justice Knazan of the Ontario Court of Justice (2003) points to the recognition by those working in the criminal courts that once an individual has been denied bail and imprisoned for a pre-trial period, the likelihood is higher that they will also receive a custodial sanction at sentencing. For non-Indigenous people, the imprisonment rate has increased by 24%, from 131 to 163 per 100,000 over the same period. Is this approach effective? Second, the absence of a Gladue Report, written by a trained Gladue writer, denies a judge the opportunity to fully understand the individual offender’s background and the life factors that led them to commit a crime. Further, it became apparent that many defence counsel were not aware of the availability and the importance of culturally appropriate diversion programs. The underlying social issues that result in the over-representation of Indigenous and Black children in care are multi-faceted and need a multi-pronged approach. While larger centres such as Toronto are relatively well equipped with these kinds of programs (for example, the Community Council at Aboriginal Legal Services in downtown Toronto), many communities are not. A value greater than 1.0 indicates over-representation; a value equal to 1.0 represents proportionality; and a value less than 1.0 indicates under-representation. In British Columbia there are four First Nations (Gladue) Courts with more on the way. Introduction TOP. A further point worth noting at the outset is that Indigenous people in Canada, whether status, non-status, MÃ©tis, or Inuit, increasingly live in urban settings (see Appendix). While the focus of the review was on Gladue citations, in some cases other rulings, such as Ipeelee, were also brought to bear on sentencing.Footnote 28, The case law review indicated certain trends. You will need to provide a reference list and that also must be in APA style. Black people are over-represented across different parts of the justice system. Visible minorities as a whole do not appear to be over-represented among incarcerated offenders, since they account for 13% of the population in Canada (Statistics Canada, 2001). In 1996, the sentencing provisions of the Criminal Code were significantly amended. The Cree-speaking Gladue Court based in Prince Albert, Saskatchewan is run by Cree justice professionals, including Cree judges and Crown prosecutors. The community must, at the very least, directly engage with government in defining issues and creating innovative solutions (Ross, 1996; Warry, 1998; Proulx, 2003; Dickson-Gilmore and La Prairie, 2005; Clark and Landau, 2012; Iacobucci, 2013). The Supreme Court noted two errors being made regularly by the lower courts when sentencing Indigenous offenders. The authors of the evaluation admit the recidivism study had methodological limitations; however, for present purposes we can accept the study’s general findings. Admission rates for Aboriginal and Torres Strait Islander children have increased from 13 to 15 per 1,000 children between 2011–12 and 2015–16. RCAP, among many others, has shown us that overrepresentation stems from the colonial experience, from socio-economic marginalization, and from culture clash. A further important factor is that the accused individual must plead guilty prior to their case being heard in Gladue Court. The absence of such a strategy might be the most serious policy failing with respect to the overrepresentation of Indigenous people in the criminal justice system. It remains high, and the conditions that led to the signing of the first AJA remain as valid today as they were in 2000. It is unique in that it is a circuit court serving several First Nations in northern Saskatchewan. While the current government is committed to implementing the Calls to Action by the TRC, much remains to be done; for example, the provision of clean drinking water to First Nation communities, the provision of adequate housing to northern communities, and the provision of sound health, education and employment programs in most Indigenous communities. When asked, the judge acknowledged never having spoken with the local committee about what they could and would take on. You must have at least 6 references, but preferably more, and all sources must be cited correctly according to APA guidelines. The Toronto Aboriginal Youth Court is a model worthy of consideration in other jurisdictions. However, they discuss the emergence of a growing “Aboriginal underclass”, comprising mainly First Nation individuals living in reserve communities (2005: 35-36). While governments are doing a reasonably good job supporting community-based initiatives, two problems with regard to policy and practice continue to negatively affect the development of community-based alternatives and the reduction of overrepresentation. Social and economic marginalization, together with the disastrous intergenerational effects of residential schools, remains a critical problem and rates of overrepresentation continue to rise. In the North, for example, community justice committees and youth justice committees are funded to carry out a variety of functions including family group conferences, elder counselling, and spousal mediation. Two anecdotes from my own experience are symptomatic and may help to demonstrate the problem. Thus, while many Indigenous people continue to live in rural and remote northern communities, the stereotype of Indigenous people living predominantly in isolation no longer holds true, a fact that has significant implications for policy development in most social arenas, including criminal justice. Pre-trial detention is an obstacle to applying s.718(2)(e) and R. v. Gladue because imprisonment occurs before the judge can fulfill her role of considering the unique circumstances of Aboriginal offenders” (2003: 11-12; 2009). Aboriginal Over-Representation TOP. Resources Community Project, 1998: 3 quoted in Dickson-Gilmore and La Prairie, 2005: 8). However, there is a slight over-representation of visible minority offenders serving time in the community on some form of conditional release. This can have negative impacts on the accused and can further result in net widening in terms of more incarceration and over classification of the offender in terms of jail security. Conclusions: We show that our implementation is significantly faster than more naïve scanning algorithms when searching with many weight matrices in large sequence sets. When a judge or justice of the peace makes a decision regarding bail and pre-trial detention, the following basic questions form part of their consideration: “Is this a dangerous person?” and “Is this a person who can be trusted?“ (Aboriginal Justice Inquiry of Manitoba, 1991: 100). The Manitoba Commissioners point out that while these questions are important, they are “inherently subjective” (Aboriginal Justice Inquiry of Manitoba, 1991: 100). Certainly, the scale of the problem of Indigenous over-incarceration was recognized and the relevant motivation was present. Bail is not guaranteed, but it is a real possibility for those who qualify by the standards set by the court. However, caution should be taken when identifying a court as a Gladue Court. It would appear that, while s. 718.2(e) and Gladue were steps in the right direction, they are a work in progress (Knazan, 2009; Pfefferle, 2008; Roach, 2009; Rudin, 2009). This appears to be changing in the Toronto area thanks to the efforts at increasing awareness by the judges at the Aboriginal Youth Court, the Old City Hall Gladue Court, and Aboriginal Legal Services. This state of affairs represents a catastrophe both for … by / Wednesday, 02 December 2020 / Published in Portfolio Term Paper Assignment For the term paper assignment, you will identify and apply a Criminological theory or theories to explain the over-representation of African Americans in crime statistics and in the justice system. Justice Cohen ran her court with a view to avoiding sentenced incarceration and pre-trial detention for youth. The first question covers potential danger to the public, an individual, and/or to the accused individual themselves. The Supreme Court in Gladue recognized the importance of such programs and also recommended that, if specifically Indigenous programs are not available, the court should attempt to refer the offender to any program as long as it is restorative in nature. In 2019, women hold 36 more positions across the IOC’s 26 commissions than they did in 2017, with female members present on each commission. Inter-Parliamentary Union ( IPU ) ( ipu.org).For the year of 2020, the data is as of October 1, 2020. When comparing the various statistics, we show that those based on binomial over-representation and Fisher’s exact test performs almost equally good and better than the others. According to Roach and Rudin. The implications of s. 718.2(e) are addressed below but the reasons why it was needed fall under the rubric of systemic discrimination facing Indigenous people, as discussed in section 4.3, above. Judges may not be aware they can be influenced by the fact of pre-trial detention (assumes a greater risk of some form) and subsequently assume the offender deserves further prison time at sentencing. What is the difference between "statistical overrepresentation test" and "statistical enrichment test" in PANTHER GO enrichment analysis tools? The cases ranged in severity and included drug trafficking, driving while under the influence, firearms trafficking, robbery, armed robbery, assault, aggravated assault, sexual interference, sexual assault, manslaughter, second degree murder, and first degree murder. A judge or a justice of the peace can deny a bail application and order pre-trial detention on the basis of any one of the three following criteria established in the Bail Reform Act of 1972, codified in s.515 of the Criminal Code, and modified more recently: (i) to ensure the attendance of the accused in court; (ii) to ensure the protection or safety of the public and to protect against criminal offences before the trial; and (iii) to maintain confidence in the administration of justice. A further essential component of an effective Gladue Court is the involvement of committed justice professionals, including judges, Crowns, and defence counsel, who are trained in Indigenous justice issues. For example, while court mandated sentencing circles can work well in Ontario or Saskatchewan, they do not fit with Inuit culture. Bail remand, and pre-trial detention have been particularly serious issues requiring attention, as noted in section 4.3.2, above. However, this appears not to be present in all courts addressing Indigenous cases. However, the various courts do not necessarily share the same structure or process.Footnote 23 For example, the sentencing circle concept is seen as relevant to Indigenous ways of addressing problems and finding solutions in a communal, supportive manner. Dickson-Gilmore and La Prairie (2005) raise questions about how funding agencies have, in the past, at least, employed “top-down” approaches to defining community and community needs that often do not serve the interests of the community itself. Sentencing circles and healing circles are supported in other regions. When an ethnic group comprising under 15% of the population is over-represented in crime to the extent found, a very large effect is registered on community sentence and prison numbers, and on the communities from which the offenders have come. Proceedings are held in relatively informal settings where the judge works with a range of resource persons to devise an individualized healing plan for the offender. It demonstrated that judges in 2018 were more aware of Gladue principles and the significance of their application than they were in 2010 and, especially, in 2000. This presents a challenge for many Canadian courts as restorative programs, especially those designed for Indigenous people, are still lacking in much of the country. A major reason for the difference was the higher likelihood that an Indigenous accused would be denied bail. Similarly, I have witnessed a judge referring a man convicted of spousal assault to a Community Justice Committee for “traditional counselling” as part of his probation order when, in fact, the Committee was not at all prepared to deal with such offenders. Download PDF. Those who favour granting bail, if reasonable, tend to agree that Gladue should apply to all Indigenous offenders because incarceration, whether as part of a sentence or pre-trial, is still incarceration and contradicts Gladue. In so doing, Justice Cohen was applying Section 38(2)(d) of the Youth Criminal Justice Act (YCJA), which states: Section 38(2)(d) of the YCJA corresponds directly to s. 718.2(e) of the Criminal Code and is expressly designed to lower the high incarceration rate among Indigenous youth. In 2002, the AJS was renewed for a further five years, and in 2007 it was renewed with enhanced funding until 2012. An evaluation of the Aboriginal Youth Court concluded the court was achieving positive results with respect to several measures, including re-offending (Clark, 2016a). Most of the cases involved sentencing but several involved bail hearings and a few involved other applications (e.g., a Danger Offender/Long-Term Supervision Application; an Application for Declaration that Section 99 of the Criminal Code is of no force and effect regarding a charge of firearms trafficking). The focus here, in analyzing Māori over-representation as a priority, arises because of the urgency created by the sheer volume of Māori offenders. Until Indigenous communities achieve greater responsibility in managing their own justice matters, alternative approaches will work only if the mainstream system allows them to proceed and works closely and cooperatively with communities. It is not unusual for Supreme Court rulings to be written in a relatively general manner, at which point governments and the lower courts are left to assign practical meaning and manage the realities on their own. The Court stated “[t]he figures are stark and reflect what may fairly be termed a crisis in the Canadian criminal justice system” (R. v. Gladue,  1 S.C.R. Approximately 2,129 cases citing Gladue were listed in CanLII from 1999 to 2018. The Aboriginal Justice Strategy Formative Evaluation noted the following: In response to this argument, governments and related organizations such as the RCMP often claim to have initiated “culturally relevant” or “culturally appropriate” community-based alternatives as an effective way to address problems. Not every court applying Gladue principles has the benefit of a resident Gladue writer. It was again renewed in 2012, 2013, and 2014. Under-policing and over-policing are really two sides of the same coin. Rudin notes that the court stated that s. 718.2(e) did not automatically mean an Indigenous person would receive a lesser sentence, and said further that when convicted for a serious violent offence, an Indigenous person would likely receive the same sentence as a non-Indigenous offender.Footnote 20 As Rudin points out, “[i]n the subsequent case of R. v. Wells – a conditional sentencing case – the court continued to send some mixed messages as to the impact of s. 718.2(e) in cases of violence” (Rudin, 2007: 43). is increasing, according to the latest Statistics Canada report on adult and youth corrections. The breaching of the conditions associated with such a sentence could automatically lead to the actual incarceration of the offender for the remainder of their term. In 1991, the Government of Canada implemented the Aboriginal Justice Initiative (AJI). Up to 60 percent of admissions to provincial or territorial jails are remands while approximately 40 percent are sentenced individuals. This takes the form of Gladue Reports, which are prepared by trained experts who do relevant background investigations on individuals. The offender is requested to return to court after a certain period of engagement with the plan so they can be monitored by the judge hearing the case. First, PSRs are used to assess risk. The final report of the summative evaluation of the AJS dedicates the following paragraph to conclusions on this question: “To what extent have community-based programs had an impact on crime rates in the communities where they are implemented?” The conclusion reads as follows: This finding is encouraging. However, for such claims to be valid, it is essential for funding bodies and their affiliates, such as the RCMP, to take very seriously the proposals developed by communities and community-based groups (Clark, 2007). 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