Judges presiding over criminal matters are required to do their jobs differently when sentencing Indigenous offenders. Gladue directs all judges to consider the unique circumstances that brought the particular offender before the court and to consider healing plans as an alternative to incarceration. This requirement stems from the acknowledgement that Indigenous peoples have been significantly harmed by impacts from colonization, including Indian residential schools and centuries of oppressive government policies. Consequently, Indigenous peoples are overrepresented in our jails due to higher rates of criminality and ongoing systemic discrimination in the criminal justice system.
Similarly, Indigenous children are overrepresented in the child welfare system due to those same impacts from colonization and systemic discrimination. Take for example, the fourth non-compliance ruling by the Canadian Human Rights Tribunal on February 1, 2018 declaring that Canada continues to discriminate against Indigenous children in care through funding policies to child and family service agencies on reserves that incentivize the removal of Indigenous children from their families.1
So, where is Gladue in child protection? When Indigenous parents are struggling to parent due to a loss of transmission of parenting skills and widespread marginalization, why aren’t judges required to do their jobs differently under the Child, Family and Community Services Act? Since it is always in the best interests of the child to remain with their parents in their Indigenous communities, provided it is safe to do so, shouldn’t special consideration be paid to the unique circumstances of the parents in child protection matters? If the state adequately supports parents to parent then it is also acting in the best interests of the child. But, in order to properly support Indigenous parents – attention needs to be paid to the historical circumstances that gave rise to the child protection concerns in the first place.
Recognizing the unique circumstances of Indigenous offenders in our criminal justice system brought about systemic change in terms of education, training, resources and infrastructure. There are more Indigenous services and programs in our institutions today than 20 years ago. There is greater recognition and understanding of the factors contributing to Indigenous criminality. This means that Indigenous offenders, although responsible for their actions, benefit from a diminished level of moral blameworthiness as reflected in the jurisprudence. Some attention is paid to how the offender is also victim and how restorative rather than punitive justice may be a more appropriate response.
Currently, the rhetoric in child protection centers on choice and parents shoulder the blame for the poor choices they make in the act of parenting. A Gladue framework would place some emphasis on the external factors that led to the actions in question. Armed with this knowledge, child protection agencies would be better equipped to devise healing plans tailored to the specific circumstances of the parent. It would then be incumbent on the government to ensure that appropriate resources were available to Indigenous parents. Judges would have oversight over this process to ensure the Director had fulfilled its duties to support families to stay together. At minimum, Gladue would inform the process and gaps in services would be clearly identified.
Although Indigenization of our criminal justice system has been slow, the more we talk about Gladue the more it has affected outcomes for Indigenous peoples involved in that system. The least intrusive measures principle should include a more probing inquiry into the particular circumstances of the parent through a Gladue lens. This may foster a climate of compassion, which in turn may compel the change that needs to happen in the child welfare system.
1 2018 CHRT 4.| ↩
Frances Rosner is a Métis lawyer working as a sole practitioner in Vancouver.