I have heard the statement, “But, every court is a Gladue court” on more than one occasion.
Technically that statement is true.
Every court is considered a Gladue court when the liberty of an Aboriginal person is at stake; section 718.2(e) requires it. We are very lucky in the Toronto area to have access to a separate, specialized court that addresses this very issue. The specialized court was first created in 2001 in response to the decision R v. Gladue, [1999] 1 S.C.R. 688, and was meant, primarily, to address the over-representation of Aboriginal people in Canada. It was originally held at Old City Hall, Toronto and since then, many more Gladue courts have been created, the most recent being in the Scarborough Ontario Court of Justice at 1911 Eglinton Ave East.
Theoretically that statement is incorrect.
The Gladue decision and the availability of a specialized court is so much more than just a mandatory consideration of the factors articulated by the Supreme Court of Canada. The existence of the court is both symbolic and representative of the reparations that have been promised to Aboriginal people.
It’s hard to articulate the importance of the Gladue court without a thorough history of the Canadian Government and the racist and discriminatory policies that were imposed on Aboriginal people and culture. The Honourable Beverley McLaughlin, Chief Justice of Canada provided context for the current state of the relationship during a speech delivered on May 28, 2015 at the Aga Khan Museum:
The most glaring blemish on the Canadian historic record relates to our treatment of the First Nations that lived here at the time of colonization. An initial period of cooperative inter-reliance grounded in norms of equality and mutual dependence … was supplanted in the nineteenth century by the ethos of exclusion and cultural annihilation. Early laws forbad treaty Indians from leaving allocated reservations. Starvation and disease were rampant. Indians were denied the right to vote. Religious and social traditions, like the Potlach and the Sun Dance, were outlawed. Children were taken from their parents and sent away to residential schools, there they were forbidden to speak their native languages, and not infrequently subjected to sexual abuse. The objective was to “Take the Indian out of the child”, and thus to solve what John A Macdonald referred to as the “Indian problem”. “Indianness” was not to be tolerated; rather it must be eliminated. In the buzz-word of the day, assimilation; in the language of the 21st century, cultural genocide”
When context is provided in terms of the historic relationship between the indigenous people of this land and the Canadian government, it is much easier to see that Gladue court is much more than a procedural consideration. The court itself is less litigious, and typically marked by a more wholesome approach to exploring the potential for rehabilitation.
One need only look at decisions such as R v. Armitage, 2015 ONCJ 64 and R v. Pelletier, 2016 ONCJ 628 to understand just how important the Gladue court really is; these decisions, arising from the Gladue court at Old City Hall, humanizes the individual. What Justice Nakatsuru did in both of these judgments was speak to the offender, to recognize the individual before the court, along with the unique circumstances that brought them there. These decisions are transformative, not just for the system itself, but also for the person.
Recognizing the person before the court as an individual instead of a docket number is important. It is even more important when we consider the individual in the context of the historic record. I once witnessed a jurist question the applicability of Gladue principals on a breach of a court order. To those who are familiar with the application of Gladue principals, it should be common sense that a group of people, who were so poorly treated at the hands of the government, may have an inherent distrust and lack of respect for that same government when they find themselves as an individual before the court. And this is just one example of why the Gladue court is necessary; it creates a place where the underlying factors, the history of the people and an appreciation of the struggles that have befallen those same people are understood.
So, the next time you hear anyone say, “But every court is a Gladue court” take a minute and remind whomever said it, that although that statement is correct, the specialized court was designed to address the sensitivities that have developed, with a specific aim to ameliorate the negative experience that Aboriginal people have often encountered when dealing with the Canadian government.
Shaunna Kelly, Associate, Hicks Adams
