Nation-Based Sovereign-Based Government

Myth of Justice: Gladue Considerations in Manitoba

April 30, 2021

Treaty 2 Territory – Following the murders of Helen Betty Osborne and J.J. Harper in Manitoba in the 80’s, a public inquiry, the Aboriginal Justice Inquiry (1991), was initiated to look into the problems for Indigenous peoples and the criminal justice system. Awareness was raised about the disproportionate rate of Indigenous people involved in the system. The general recommendations included considering other options to incarceration, encouraged innovative non-custodial alternatives, and the involvement of Indigenous peoples and nations in developing appropriate sentences. In line with the AJI recommendations, in 1999, the case of R. Gladue was the first Supreme Court of Canada case to consider s 718.2 (e); a provision encouraging judiciary to consider all options before incarceration for Indigenous peoples.

Manitoba has been long criticized for its lack of meaningful implementation of Gladue principles. (Milward, D., Parkes, D., 2011) Unlike most other provinces, Manitoba employs provincial Probation Officers to write ‘Gladue Reports’. Gladue reports in Manitoba are essentially enhanced Pre-Sentence Reports that continue to focus on criminogenic need factors as outlined in the Level of Service Case Management Index (LS/CMI) risk assessment, with additional ‘Gladue factors’. Since the Gladue decision nearly two decades ago, incarceration of Indigenous peoples has continued to increase despite the Supreme Court of Canada decision.

Efforts have been made to ‘indigenize’ Gladue Reports/Pre-Sentence Reports at the provincial level, however, as long as provincial employees whose jobs rely on individuals remaining in the system are authoring recommendations, there is a glaring bias that cannot not be ignored. Regardless of that staff’s lived experience, education, cultural sensitivity, and so on, they are restricted by provincial policies, standards, and a Court that does not trust Indigenous ways of knowing or being over their own adversarial approach.

As we develop and implement our FNT2T Peacemaking system, we recognize that Gladue considerations exist to bring awareness to a settler system. The provincial and federal criminal justice systems are aware of the recommendations and steps needed to make meaningful change, but continues to fail us. FNT2T is building a self-governed system where Gladue considerations are lived experiences shared and understood in all circles, and where policies and standards are in harmony with the spirit and intent of the AJI, Gladue decision, countless other recommendations, and above all, in accordance with our traditional knowledge and ways of being.

By: Jennifer Meixner, Policy Keeper, Peacemaking Circle

Last modified: May 2, 2021

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