How Was the First Gladue Court Developed?
In 2000, following a Canadian Association
of Provincial Court Judges conference on the Gladue decision, judges at
Old City Hall Courthouse partnered with Aboriginal Legal Services (ALS) and
Professor Kent Roach to address the challenges in applying Gladue principles.
They found that the justice system lacked the necessary tools and processes to
adequately consider the systemic and background factors affecting Indigenous
people in sentencing. (Clark, 2016)[1]
In October 2001, the first Gladue Court was launched at Old City Hall in downtown Toronto. The
objective of the court was: “[t]o establish this criminal trial court’s
response to Gladue and s. 718.2(e) of the Criminal Code and the
consideration of the unique circumstances of Aboriginal accused and Aboriginal
offenders. (Gladue (Aboriginal Persons) Court, Ontario Court of
Justice—Old City Hall, n.d.)”[2]
To create the court, existing resources were reallocated – Legal Aid
Ontario (LAO) appointed a dedicated Gladue Court duty counsel, and the provincial and federal Crown’s
office also designated specific Crowns for the court. ALS created a new
position, a Gladue Caseworker, to support the court and the judicial
process through the preparation of Gladue reports. (Rudin, 2005)[3]
Naming a Gladue Court
Before I get into Gladue Courts I want to emphasize
terminology – you’ll notice I sometimes use Gladue and Indigenous
Peoples Court interchangeably.
As noted by the Ontario Court of Justice, (nd)[4]
some courts decide to be called Gladue Court acknowledging the legal precedent set by the Gladue decision. However,
there are critics that highlight that a court shouldn’t be named after a
person.
Some courts decide to be called Indigenous peoples
courts. Which clearly indicates who the courts are to be used by. That being
said, critics point out that the term Indigenous Peoples' Court might be
misleading as it suggests that the court operates primarily under Indigenous
legal principles. In reality, these courts are part of the Canadian legal
system and apply Canadian law. The courts integrate Indigenous cultural
practices within this legal framework but do not operate according to
Indigenous law.
What is a Gladue Court?
Gladue Courts/Indigenous Peoples’ Court are dedicated courts that are
scheduled for criminal law matters involving Indigenous persons facing charges.
Gladue Courts/ Indigenous Peoples’ Courts continue to be developed
throughout the Province, generally through collaboration between local
Indigenous communities, the judiciary, and other justice participants. As a
result, Indigenous Peoples’ Courts vary significantly from region to region.
Some Indigenous Peoples’ Courts only hear plea/sentencing matters, while others
do bail hearings and case management. Many have restorative justice or
diversion programs that divert matters out of the criminal justice system.
In most Gladue Courts/Indigenous Peoples’ Courts, there is
recognition that the Canadian criminal justice system has been a mechanism of
alienation for Indigenous accused and victims. Efforts are made to incorporate
a number of customary Indigenous practices, depending on location, into the
court process including smudging, the involvement of Knowledge Keepers and
Elders, Community Justice Workers, Eagle Feathers as an alternative to
affirming testimony, sentencing Circles, etc. Although most Indigenous Peoples’
Courts take place in a regular court room, there are examples of courts being
designed and built with Indigenous perspectives in mind, such as in Thunder
Bay. All Indigenous Peoples’ Courts are an attempt to adopt a restorative
approach which is less adversarial and more holistic.
Gladue Courts/Indigenous Peoples’ Courts generally are staffed with
specialized personnel, including Indigenous Court Workers, Bail Verification
and Supervision Workers, Community Justice Workers, Gladue Report
writers, Elders, and representatives from specific Indigenous communities.
These experts provide tailored support. We will talk about their roles later
on.
How Do Gladue Courts Form?
Starting an
Indigenous Peoples Court is no small feat. The process begins with a
specialized business case proposal that must be submitted to the regional
justice. This proposal includes several crucial elements:
You start by
detailing the name of the court and specifying whether it’s a brand-new
initiative or an expansion of an existing one. Next, you outline the proposed
start date and the timelines necessary for review and approval. You’ll also
need to clearly articulate the specific issues the court aims to address and
its objectives. What are the expected outcomes, and how will you measure
effectiveness? You also provide details on criteria for court participation,
the court process, judicial scheduling, stakeholder involvement, and, of
course, the funding and resource requirements.
But the
business case is just the beginning. The real challenge—and the real
opportunity—lies in how you develop and implement the court. This is where
community engagement becomes pivotal.
When setting
up Gladue Courts, it’s not merely about ticking boxes or getting
approvals; it’s about forging deep, meaningful connections with local
Indigenous communities. This means more than just consultation. It involves
active, ongoing engagement with community members, Indigenous justice service
providers, and key players in the justice sector like Legal Aid Ontario and the
local Crown attorney’s office.
Take, for
example, a community in northern Ontario. To build a court that truly serves
this community, you need to understand and integrate their services and
supports throughout the court process. You’re not just putting up a new
courthouse; you’re reflecting a genuine, grassroots, holistic approach that
aligns with their way of life and values.
This is where
training and support come in. The court needs specialized personnel who are not
only culturally competent but also deeply informed about the history of
colonialism and its ongoing impacts. These individuals should be empathetic,
with a genuine desire to work with Indigenous peoples and a deep understanding
of their unique challenges.
Moreover,
integration with community services is essential. The court should seamlessly
weave existing community and support services into its processes, ensuring
there’s a thorough understanding of these services and a strategic plan for
their effective use.
The diversity
among Indigenous communities means that each has its unique languages,
spiritual practices, governance structures, and artistic expressions. Their
needs and challenges can vary greatly based on their social, economic, and
cultural contexts.
Critics often
argue that the variation among Gladue Courts across the province makes
it difficult to create a consistent system. (King & Hill, 2024, p.12)[5]
However, in my eyes, this diversity is actually a strength rather than a
weakness. The fact that each Gladue Court is distinct highlights its
ability to adapt and cater to the unique needs and aspirations of its
community.
A
one-size-fits-all approach simply won’t work. Instead, Gladue Courts
must be flexible and adaptive, tailoring their approaches to reflect the
specific needs and circumstances of the communities they serve.
What Are The Benefits to Gladue Courts?
In exploring the benefits of Gladue Courts, I’m
drawing from insights in the report P-382: Evaluation of the Gladue Court,
Old City Hall Toronto, prepared for Aboriginal Legal Services by Scott
Clark, PhD, in 2016. This report sheds light on the positive impacts these
specialized courts have had, and I want to share why I find these benefits so
compelling.
One of the key advantages of Gladue Courts is the enhanced
opportunity they provide for Indigenous individuals to self-identify within the
legal process. This gives courts an ability to properly addresses their case.
Gladue Courts also stand out for their effective
application of Gladue principles. From what I’ve seen and as highlighted
by Clark (2016), these courts tend to apply these principles more rigorously
than regular courts. The officials in Gladue Courts are generally better
informed about Gladue principles, which means they can offer more
nuanced and relevant considerations in their decisions.
Another significant benefit is the effective case
management within Gladue Courts. These courts manage Indigenous cases
more effectively than their regular counterparts, and a big part of this
success comes from their robust case management strategies. Court workers play
a crucial role in connecting individuals with relevant programs, many of which
are integrated directly into the court system. This integration not only
streamlines the process but also builds trust with Indigenous communities.
Knowing that the court is connected to programs and services they can access
makes a huge difference in how individuals perceive and interact with the legal
system.
Consistency and understanding among court personnel
are other major strengths of Gladue Courts. These courts often have
consistent staff members who are well-versed in Indigenous issues. This
familiarity fosters personal connections and builds trust between the court and
Indigenous individuals. It’s not just about applying principles correctly; it’s
about creating a supportive environment where people feel understood and
respected.
Finally, Gladue Courts place a strong emphasis
on finding alternatives to incarceration. There’s a notable focus on exploring
options other than pre-trial detention and imprisonment, often by leveraging
restorative justice programs and community-based initiatives. This approach
aligns with the goal of addressing underlying issues and providing meaningful
support rather than just punitive measures.
Through my
own experience, I have noticed that in Gladue Courts, there is a greater
level of trust in the programs developed and delivered by the community. Gladue
Courts recognize that Indigenous people often have a different perception of
justice compared to traditional Western concepts. The programs designed by
Indigenous communities are more effective because they are grounded in this
understanding. They respect and reflect Indigenous ways of knowing and justice,
which makes a real difference in their effectiveness.
What Are The Issues With Gladue Courts:
In the early
days of Gladue Courts, there was a notable misconception that they
offered Indigenous individuals a sort of "get out of jail free" card.
This perception, though less prevalent now, still lingers in some circles,
often fueled by misunderstandings about the role and purpose of Gladue
Courts. This is far from the truth as we talked about in overrepresentation.
Gladue Courts
represent a significant step forward in integrating Indigenous perspectives and
addressing the systemic barriers faced by Indigenous individuals. However, this
progress can sometimes create a dual-edged perception. On one hand, the
positive impacts of Gladue Courts might suggest that a hybrid
model—combining elements of Canadian law with Indigenous practices—is an
adequate solution. This could inadvertently shift focus away from deeper
discussions about Indigenous sovereignty and the need for Indigenous
self-governance in justice matters.
As we talked
about, the term "Indigenous Peoples Court" can be a bit misleading.
Despite its name, an Indigenous Peoples Court does not apply Indigenous law; it
operates within the framework of Canadian law, albeit with a heightened
sensitivity to the context and circumstances of Indigenous people. (Ontario
Court of Justice, n.d.)[6]
This can be seen as a limitation because, while Gladue Courts aim to
provide more equitable outcomes, they are still bound by the constraints of the
existing legal system.
What issues do Gladue Courts typically have?
When
discussing the issues faced by Gladue and Indigenous Peoples’ Courts,
it's essential to clarify that what I mean are the common challenges these
specialized courts encounter. From my experience, I’ve identified four main
challenges that these courts face. However, it’s worth noting that every court
is unique, reflecting the principles and practices of the communities they
serve. So, while there are common challenges, there are also specific issues
tied to each courthouse and its community.
One
significant challenge is capacity. The frequency with which Indigenous Peoples’
Courts meet can vary widely. In some regions, these courts might only convene
once or twice a month, while in others, they might meet daily. This disparity
impacts how long Indigenous individuals remain engaged with the justice system.
In areas with less frequent court sessions, individuals may experience
prolonged periods of involvement in the system. Conversely, in courts that
operate more regularly, maintaining consistent staff and ensuring that
procedural and cultural requirements are met can be a challenge; we have seen
this challenge at the New Toronto Courthouse. As I am aware, the courthouse has
a rotating list of crowns and legal aid members. Consistency in staffing is
crucial, as it helps build personal connections and trust with Indigenous
individuals, which is a key component of effective justice.
Another
challenge is resource allocation. Many Indigenous Peoples’ Courts operate in
traditional courtroom settings, which might not fully accommodate their unique
needs. For example, dedicated spaces designed as circles—symbolizing equality
and respect—are often lacking. Traditional courtroom layouts can inadvertently
reinforce power dynamics, which is contrary to the principles of equality and
community-focused justice that these courts aim to promote.
Historical
mistrust is also a critical issue. Indigenous peoples have a long history of
broken promises and systemic discrimination, which contributes to a deep-seated
mistrust of the justice system. This historical context can undermine
perceptions of fairness in court proceedings and affect even the process of
consulting Indigenous communities in the creation and operation of these
courts.
What issues are there without having Gladue Courts?
In discussing
the impact of Gladue Courts, it’s clear that while every court has a
duty to apply Gladue principles, utilizing a Gladue Court offers
distinct advantages. These specialized courts are designed specifically to
apply Gladue principles effectively, and in my experience and in the
Evaluation of Old City Hall Gladue Court, they do so much more efficiently
than general courts.
One of the
primary challenges faced by courts without a Gladue Court is the level
of self-identification among Indigenous individuals. From what I’ve observed,
the presence of a Gladue Court inherently fosters a process for recognizing
Indigenous identities. When a court is equipped to handle Gladue cases,
it becomes much easier for court staff to inquire about an individual’s
Indigenous status. I believe, this is because they actually understand what to
do.
For instance,
if you know that identifying someone as Indigenous leads to a referral to a Gladue
Court, you’re more likely to ask about their Indigenous identity in the first
place. In contrast, without this specialized court, even if there is a
procedure to ask about Indigenous status, it can be largely ineffective if
there’s no clear plan for what to do with the answer. I’ve seen firsthand how
this gap can result in missed opportunities to provide appropriate support.
Additionally,
courthouse staff often struggle with the challenge of navigating Indigenous
programs. In my own experience, I’ve encountered situations where staff were
either unaware of the local Indigenous services available or unsure about which
programs were appropriate for referrals. This lack of integration and knowledge
means that Indigenous individuals might not receive the tailored support they
need.
Finally,
traditional courts often fall short in addressing the historical and
socio-economic factors affecting Indigenous people. The broader justice system
might not fully account for the impacts of colonialism and systemic inequities
that shape the lives of Indigenous individuals. Gladue Courts, on the
other hand, are specifically designed to address these factors, ensuring a more
comprehensive and empathetic approach to justice.
Where have Gladue Courts been established?
As far as I’m aware of there are 17 Gladue Courts operating
across Ontario, each serving specific regions with varying schedules.
The locations include Toronto, Niagara, St. Catharines, Simcoe, Brampton, Thunder Bay, Peterborough, Ottawa, London, Cayuga, Brantford, Sarnia, Sudbury, Bkejwanong (Walpole), Wiikwemikoong, Mohawk of the Bay of Quinte, Walpole Island, and Wiikwemkoong Unceded Territory on Manitoulin Island.
[1] Clark, S. (2016). Evaluation
of the Gladue court: Old City Hall, Toronto. Aboriginal Legal Services.
[2] Gladue (Aboriginal Persons) Court, Ontario Court of Justice—Old City Hall, Factsheet,
[3] Jonathan Rudin “Aboriginal People and the Criminal Justice System”, Toronto, Ont. : Ipperwash Inquiry, 2005.
[4] Ontario Court of
Justice. Specialized Courts of the Ontario Courts of Justice. Accessed
August 25, 2024. https://www.ontariocourts.ca/ocj/specialized-courts/.
[5] King, H., &
Hill, P. (2024). Twenty-five years of Gladue: Indigenous
‘over-incarceration’ & the failure of the criminal justice system on the
Grand River. Yellowhead Institute.
[6] Ontario Court of
Justice. Specialized Courts of the Ontario Courts of Justice. Accessed
August 25, 2024. https://www.ontariocourts.ca/ocj/specialized-courts/
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