APPLYING GLADUE PRINCIPLES REQUIRES MEANINGFUL INCORPORATION OF INDIGENOUS LAWS AND PERSPECTIVES, INCLUDING CONSIDERATION OF COMMUNITY-BASED ALTERNATIVES TO INCARCERATION A Thesis Submitted to the College of Graduate and Postdoctoral Studies In Partial Fulfillment of the Requirements For the Degree of Master of Laws In the College of Law University of Saskatchewan Saskatoon Treaty 6 Territory, Homeland of the Metis By HILARY JANICE PETERSON Copyright Hilary J. Peterson, March, 2019. All rights reserved. PERMISSION TO USE In presenting this thesis in partial fulfillment of the requirements for a Postgraduate degree from the University of Saskatchewan, I agree that the Libraries of this University may make it freely available for inspection. I further agree that permission for copying of this thesis in any manner, in whole or in part, for scholarly purposes may be granted by the professor or professors who supervised my thesis work or, in their absence, by the Head of the Department or the Dean of the College in which my thesis work was done. It is understood that any copying or publication or use of this thesis or parts thereof for financial gain shall not be allowed without my written permission. It is also understood that due recognition shall be given to me and to the University of Saskatchewan in any scholarly use which may be made of any material in my thesis. DISCLAIMER Reference in this thesis to any specific commercial products, process, or service by trade name, trademark, manufacturer, or otherwise, does not constitute or imply its endorsement, recommendation, or favoring by the University of Saskatchewan. The views and opinions of the author expressed herein do not state or reflect those of the University of Saskatchewan and shall not be used for advertising or product endorsement purposes. Requests for permission to copy or to make other uses of materials in this thesis in whole or part should be addressed to: Dean of the College of Law 15 Campus Drive University of Saskatchewan Saskatoon, Saskatchewan S7N 5A6 Canada OR Dean College of Graduate and Postdoctoral Studies University of Saskatchewan 116 Thorvaldson Building, 110 Science Place Saskatoon, Saskatchewan S7N 5C9 Canada i ABSTRACT This thesis considers Canadian criminal sentencing laws and the implications of such upon Indigenous people.1 In particular, this thesis advocates for the immersion of Indigenous means of justice, including community-based solutions, into mainstream justice. Indigenous communities and people carry their own laws and legal systems to deal with criminal behaviour, including sanctions to manage behaviour. If Canada is serious about creating a justice system that works for Indigenous people in this country, Canadian laws ought to incorporate Indigenous laws. The Supreme Court of Canada decision, R v Gladue,2 interprets the Canadian Criminal Code sentencing provision, s 718.2(e), which requires sentencing judges to consider all available sanctions, other than imprisonment, for all offenders, with particular attention to the circumstances of Aboriginal offenders.3 Gladue provided a two prong consideration for sentencing judges to follow when coming to their ultimate decision: A) The unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and B) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection.4 Gladue does not create an Indigenous legal system within Canadian law however Gladue creates a passage way for Indigenous understanding to be incorporated into mainstream criminal law. Indigenous ways of justice ought to be considered during the application of Gladue. This thesis focuses on the means available to properly consider the second prong of Gladue, including community alternatives to incarceration. As is examined in this thesis, if sentencing judges fail to meaningfully consider the second prong of Gladue an error of law 1 Please note throughout this thesis the term Indigenous will be used to describe the first peoples within the land mass known as Canada. Aboriginal is the term often used in Canadian law. For the purposes of this thesis, the reader should consider Indigenous and Aboriginal as interchangeable terms. Please, also note that “Canada” is a colonized title. The descriptor of Turtle Island may be used to describe the land mass known commonly as Canada. 2 R v Gladue, [1999] 1 SCR 688, 171 DLR (4th) 385 (SCC). [Gladue] 3 Criminal Code, RSC 1985, c C-46, s 718.2(e). [Criminal Code] (emphasis added) Please note throughout this thesis when referring to section 718.2(e) of the Criminal Code the short form, s 718.2(e), will be used. 4 Gladue, supra note 2 at para 66. ii has occurred, as s 718.2(e) of the Criminal Code has not been properly applied. To avoid such error, Gladue reports and therapeutic courts assist sentencing judges, encouraging proper application of Gladue. iii ACKNOWLEDGEMENTS Thank you to my supervisor, Professor Glen Luther, for your ongoing support. I greatly appreciate your guidance. You encouraged me to pursue additional research in New Zealand and I thank you for assisting me with that opportunity. Your patience throughout the completion of my thesis and your faith in me has truly made an impact upon me as a student and a person. Thank you to my committee, including Professor Sarah Buhler and Professor Larry Chartrand. I thank you for your thoughtful suggestions. Additionally, you both provided flexibility and patience, in light of my schedule, including my research trip to New Zealand and my work commitments. Thank you to the External Examiner Professor David Milward for traveling to Saskatchewan to participate in my thesis defense. Your feedback was attentive and greatly beneficial. Thank you to the University of Saskatchewan College of Law for your generous support throughout my education, during both my Juris Doctor degree and my Master of Laws degree. The scholarships I received from the College allowed me to pursue my Master of Laws degree. Thank you. Thank you to the donors who made my research trip to New Zealand possible. Thank you to the University of Saskatchewan, Centre for Forensic Behavioural Sciences and Justice Studies for providing me with the Research Award. Thank you to the University of Saskatchewan, International Awards Committee for providing me with the International Travel Award. Thank you to my family, including my mother Janice, my father Todd and my two brothers Eric and Elliott. Your ongoing support throughout my entire education fostered my goals into a reality. I could not have done this without you, nor would I have wanted to. iv DEDICATION To my family, in particular my mother Janice and my father Todd, Your encouragement and love brought me here. Thank you. v TABLE OF CONTENTS PERMISSION TO USE AND DISCLAIMER…………………………………………………… i ABSTRACT……………………………………………………………………………………… ii ACKNOWLEDGEMENTS……………………………………………………………………... iv DEDICATION………………………………………………………………………………….... v TABLE OF CONTENTS………………………………………………………………………... vi CHAPTER ONE: INTRODUCTION………………………………………………………….. 1 CHAPTER TWO: RELATIONSHIP BETWEEN COLONIAL CANADIAN LAW AND INDIGENOUS LAWS………………………………………………………………………….. 4 2.1: Indigenous laws and perspectives………………………….…………..........……... 4 2.2: The criminal justice system in Canada….…………..………………………...…... 8 2.3: Canadian government policies inflicted upon Indigenous communities……….. 10 CHAPTER THREE: THEORETICAL PERSPECTIVES………………………………….. 15 CHAPTER FOUR: CRIMINAL SENTENCING AND INDIGENOUS PEOPLE IN CANADA………………………………………………………………………………………. 23 4.1: Brief statistics and incarceration rates of Indigenous people in Canada………………………………………………………………………….…….... 23 4.2: The law of sentencing in Canada with regards to Indigenous people..……...…. 24 CHAPTER FIVE: NEW ZEALAND’S APPROACH TO IMPRISONMENT AND SENTENCING OF MAORI PEOPLE……………………………………………………….. 30 5.1: Comparing incarceration rates of Indigenous people…………...……………..... 30 5.2: Therapeutic courts and Indigenous sentencing principles………………...……. 37 CHAPTER SIX: GLADUE REPORTS……………………………………………………….. 52 CHAPTER SEVEN: REVIEW OF CANADA’S COMMON LAW APPLICATION OF GLADUE PRINCIPLES………………………………………………………………………. 58 7.1: Appellate level courts’ application of Gladue………………......………………... 58 7.2: Saskatchewan courts’ application of Gladue…………………………………….. 68 7.3: A look at the Nunavut Court of Justice application of Gladue…………………. 79 CHAPTER EIGHT: CONCLUSION……………………………………………………….... 84 BIBLIOGRAPHY……………………………………………………………………………... 88 APPENDIX …………………………………………………………………………………...... 98 vi CHAPTER ONE: INTRODUCTION Indigenous people carry their own laws and justice systems, yet Indigenous people continue to be subjected to colonial legal systems. Indigenous people in Canada are highly over represented in prisons and jails. Institutionalization is separating these people from their families, deteriorating employment opportunities and encouraging an ongoing cycle of state oppression against Indigenous peoples. Over incarceration is also an issue for Indigenous people of New Zealand as well. Both countries are Commonwealth countries, colonized by British law. As it stands, Indigenous people do not exist within their own autonomous criminal justice systems. If they did Canadian criminal law would not apply to them. This thesis does not explore how a separate Indigenous legal system would function, because unfortunately that is not a