Gladue reports no ‘get out of jail free card’ for indigenous offenders
His mother and grandparents were residential school survivors; his father was often absent; he felt the sting of racism in school and on the streets; he scrounged in garbage cans as a youngster for food; he lived with violence and abuse as a child; by 11 he’d turn to drugs and alcohol; and by 12 was doing time behind bars.
So why was any of that relevant to sentencing Richard Daniel Wolfe, one of the founders of the Indian Posse street gang, and now age 40 for crimes decades later?
Because the country’s highest court and the Criminal Code have specifically directed judges to consider the unique circumstances of aboriginal offenders — what’s known as “Gladue factors.”
In the 1999 Gladue ruling and another called Ipeelee that followed in 2012, the Supreme Court said that in sentencing an aboriginal offender, courts must consider such factors as the history of colonialism, displacement, and residential schools and how that history translates into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and higher levels of incarceration for aboriginal people. Like many indigenous offenders before the court, those factors helped mould Wolfe into the dangerous man he became.
“You can’t hurt kids and expect them to grow up normal,” says Wolfe’s lawyer Kim Stinson. But he hastens to add he’s not making excuses — and neither was his client. It’s really more about explanation than excuse — a tough concept for the courts and even more for the public.
“The thing that has to be understood is that they are not a get out of jail free card,” says Stinson.
When trying to decide Wolfe’s future last month in Regina, one of the tools Justice Lian Schwann had was a detailed report digging into his dark and troubling past — a Gladue report. Expensive to do and with a scarcity of experts in this province trained to do them, stand-alone Gladue reports are still rare in Saskatchewan, which has the highest incarceration rate for aboriginal people among the provinces.
The Crown sought a 10-year prison term for Wolfe’s latest crimes: Sexual assault and assault with a weapon. The defence countered with 3 ½ years. Schwann settled on five years, on top of time he has left on his previous sentence.
But perhaps even more important than the number was how the Court of Queen’s Bench judge arrived at it, providing a detailed analysis of Wolfe’s Gladue report and the law.
Stinson doesn’t go so far as to call the Wolfe decision a win for Gladue reports, but he does say, “It’s maybe a bit of a harbinger for the future.”
Retired B.C. provincial court judge Cunliffe Barnett sparked controversy in 2014 when he criticized the Saskatchewan courts for what he saw as a lack of attention to Gladue factors. William Vancise, a retired Saskatchewan Court of Appeal judge, responded in an editorial, calling Barnett’s comments erroneous and saying the courts here routinely consider Gladue factors, receiving the information from pre-sentence reports or counsel submissions.
“As the Supreme Court pointed out in Gladue, it may well be that after considering all the particular factors and circumstances of an aboriginal offender, that imprisonment is the appropriate sentence. Indeed, for serious offences the high court pointed out that there is unlikely to be any difference in the sentence of an aboriginal offender and a non-aboriginal offender,” Vancise wrote.
Stinson calls Gladue reports “immensely valuable” but admits they aren’t appropriate in every case.
“They in fact take the time to flesh out people’s backgrounds and try to get behind the scenes … Usually when you do a pre-sentence report, it’s a snapshot in time, where a Gladue report is more of a life long,” he adds.
He calls Wolfe’s report “the stuff of movies,” telling a horrific tale of parental neglect, alcoholism, and victimization — the intergenerational impacts of residential schools. In the words of one elder, quoted in the report, “Many of our native people had nowhere to turn to, to deal with the emotional scars of residential school. Consequently, they began to drink and use drugs.” The impacts trickled down. In their teens, Wolfe and his brother Daniel, just 11 months younger, carved out their own “family” in a street gang, the Indian Posse. Their criminal records and trail of victims grew.
After Wolfe was paroled in 2010 from a 19 1/2-year prison sentence for attempted murder and robbery, he returned to the Fort Qu’Appelle area and seemed to be on a better path, even giving anti-gang presentations to youth.
But with the deaths of his brother (killed in prison while serving life for murder), father, and stepson, Wolfe slid back into booze, drugs, and crime, preying on people who had given him shelter, attacking them in their home after a night of drinking. “All we were trying to do was help him,” wrote one victim.
Schwann said Gladue factors don’t on their own dictate any particular sentence for aboriginal offenders, but “they provide a context.” And while that legacy played a role in Wolfe’s offending and “modestly detract(s) from his level of culpability,” she considered other sentencing principles, like denunciation and deterrence, in settling on prison — although for half the time sought by the Crown. And she recommended cultural programming for him behind bars.
Stinson is certain the detailed Gladue report had an impact in a way a regular pre-sentence report or him speaking about Wolfe’s background couldn’t. But part of the challenge for defence lawyers is funding for Gladue reports. In this instance, although Wolfe was a Legal Aid client, the report was paid for privately.
In the past year, the Ministry of Justice undertook a review to develop “a principled, practical and co-ordinated approach for providing Gladue-related information to the courts.” The ministry didn’t make anyone available for an interview, but provided an emailed statement.
The review found Gladue principles are understood differently across the country, and there are no common standards for application. Some provinces, like B.C. and Alberta, provide stand-alone Gladue reports — but not Saskatchewan. Staff will continue to prepare pre-sentence reports, “which contain many of the factors considered in relation to the Gladue provisions,” says the ministry.
In sentencing Wolfe, Schwann relied heavily on a Saskatchewan Court of Appeal decision from December. It’s the top court’s most-recent pronouncement on interpreting Gladue and Ipeelee.
“The court of appeal basically reaffirmed the principles and gave some guidance for a really hard concept,” says Regina Legal Aid lawyer Bruce Campbell, who represented the accused, Joseph Francis Chanalquay.
“They made it clear it’s not a two-tier system. And that aboriginal people aren’t favoured, but you still have to consider their unique factors,” he adds. “This is not easy … It’s not a simple reduction in sentence. It’s a restorative approach, and it doesn’t always apply to make the sentence lighter in every case.”
Chanalquay, from a remote northern First Nation, was originally sentenced to two years less a day in jail for sexually assaulting a sleeping woman. The court agreed the sentencing judge misapplied Gladue and Ipeelee, but addressed the error by adding 18 months’ probation.
In the decision, Chief Justice Robert Richards writes: “It is important to recognize that Gladue and Ipeelee are not unvarnished calls to impose shorter jail terms on aboriginal offenders. The Supreme Court’s reasoning is far more nuanced than that.”
Jim Scott has been less than nuanced in his criticism of the Saskatchewan courts and its application of Gladue principles.
In 2014, the Saskatoon defence lawyer, who is currently not practising law, presented to Legal Aid a paper called, Reforming Saskatchewan’s Biased Sentencing Regime. Using an online database of legal decisions, the Canadian Legal Information Institute or Canlii, Scott compared sentences imposed here for those identified as aboriginal with those in which there was no race indicated.
He recently did an update, as yet unpublished, to incorporate decisions to the end of 2015 — but his conclusion remains the same: “I have found that aboriginal people in Saskatchewan have been sentenced to nearly twice the amount of total jail time as non-aboriginal people.”
Scott has criticized the appeal court for not providing more leadership in using Gladue factors to address aboriginal over-representation in prisons.
A couple decisions in late 2015 have given him more reason to hope, one of those being Chanalquay. He says such decisions demonstrate what can be accomplished when Gladue principles are “rigorously” applied. Scott hopes the recent Truth and Reconciliation Commission’s (TRC) final report has given everyone a better understanding the intergenerational effects of residential schools and their long-term impact on the justice system.
“I think the Truth and Reconciliation Committee’s (TRC) work has had a profound effect on the way a lot of people are thinking about our own society and the separation between the descendants of the settlers and the First People,” says Scott. The TRC’s report calls for action, including pressing governments to respond to the underlying causes of offending and to address over-representation of aboriginal people filling jails and prisons.
“Many damaged people emerged from the residential schools; there is no reason to believe the same is not true of today’s prisons,” says the TRC report.
Richard Wolfe will get a chance firsthand to know what the province’s high court thinks of Gladue reports and its further guidance on the the law.
The prosecution has appealed Wolfe’s sentence, calling it “demonstrably unfit.”