Students, teachers, and Gladue report writers gather for the inaugural day of UAlberta Law's Aboriginal Justice Externship on Gladue Sentencing Principles on January 9, 2017.
The first day of class in 2017 for UAlberta Law also marked the beginning of an innovative new experiential learning opportunity for students in criminal law and Aboriginal sentencing. The first course of its kind to be offered in a Canadian law school, the students of the Aboriginal Justice Externship on Gladue Sentencing Principles met with their teachers on January 9 for the inaugural day of the course.
The first day of pre-externship training included a half-day workshop led by Dr. Patti Laboucane Benson of Native Counselling Services of Alberta. The workshop focused on the relationship between Canadian colonial laws and policies, overrepresentation of Aboriginal peoples in the justice system and challenges faced before and after incarceration, including through manifestations of intergenerational trauma and criminal activity. The students also met with Gladue report writers who write reports considered by judges in their sentencing deliberations for Aboriginal offenders and who will work with the students in the externship component of the course.
"There are certain fundamental principles that apply to sentencing all offenders," explains Professor Catherine Bell. "These include that the sentence must be proportionate to the seriousness of the offence and responsibility of the offender and that judges must consider factors that bear on culpability, including the life experiences of the accused. The Criminal Code was amended in 1996 to include s. 718.2 (e) because this obligation was not being fulfilled in relation to Aboriginal peoples; that is, judges were not consistently taking into consideration relevant factors unique to Aboriginal offenders. The amendment was also intended to respond to significant overrepresentation of Aboriginal people in Canadian prisons in a manner consistent with the objectives of sentencing including protection, rehabilitation, and maintaining a safe and peaceful society. Section 718.2(e) requires that 'all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.'"
In interpreting these amendments, the Supreme Court of Canada held in Gladue that a judge must consider in sentencing:
(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.
Systemic factors include colonial legal history and policy such as residential schools, child welfare policy, and intergenerational trauma which provide the wider context for understanding personal factors relevant in sentencing of many Aboriginal accused, such as home life, lower education, unemployment, or substance abuse.
Gladue reports provided to Alberta courts are tailored to the circumstances of the Aboriginal offender. They include case-specific information about personal factors and information relevant in considering sanctions that are alternatives to incarceration. The Gladue principles speak to how judges are to consider this information in crafting sanctions that achieve the objectives of sentencing and which are proportionate to the gravity of the offence and the responsibility of the offender.
UAlberta Law is offering the course in partnership with the Government of Alberta, under the direction of Professor Bell, defence lawyer Nicole Stewart, and Randy Sloan, Manager of Aboriginal and Business Relations with Alberta Justice and the Solicitor General. Bell and Stewart are team teaching the course and Sloan is the externship coordinator; support and training is being provided by various actors in the judicial system, including Yellowhead Tribal Community Corrections and Native Counselling Services of Alberta.
The 3-credit course - designed to provide students with legal, social, historical, and contemporary contexts for understanding Gladue principles in sentencing - includes pre-externship, cultural and sensitivity training, and teaches students about the role of Gladue reports and report writers, as well as issues of privacy and confidentiality. Students attend bi-weekly seminars and will conduct 25-30 hours of externship work with Gladue report writers.
The course objectives include:
- Providing assistance to Aboriginal offenders and Gladue report writers in gathering information for justices of the Court of Queen's Bench and judges of the Provincial Court of Alberta necessary for implementing Gladue sentencing principles;
- Enabling the connection of case work, file work, legal procedure, and other forms of experiential learning with a broader critical reflection on Canadian law as it applies to First Nation, Inuit, and Métis accused;
- Providing students with a deeper understanding of the legal, social, cultural, and economic contexts for implementing Gladue principles in sentencing Aboriginal offenders, including the relevance of individual, familial, and historic factors; the TRC report; and the relationship of Gladue to restorative justice and Indigenous legal traditions; and
- Helping students understand the intergenerational impact of colonial history, including the residential school system and its connections to Gladue sentencing factors.
Throughout the course, students will accompany the Gladue report writer when they are interviewing the accused and their collateral contacts, assist writers in identifying resources that will help address the treatment or programming needs, compile community histories and profiles, observe sentencing and court proceedings, and meet with members of the judiciary, legal counsel, and Aboriginal court workers.
In addition to having an opportunity to develop greater competency working in the criminal justice system with Aboriginal offenders, students will learn the difference between Gladue principles and Gladue reports, how the reports are requested and provided in Alberta, the role of the Gladue report writer in gathering information and the sentencing process itself, who the report is written for, how the information is obtained, content areas in reports, and how this information is relevant to sentencing.
The idea for the course and the unique opportunity it would provide students arose after a Gladue Report Implementation Committee was initiated in 2013 by members of the Provincial and Queen's Bench Courts of Alberta in Edmonton, in response to concern about the insufficiency of information being provided to the Court to address Gladue factors in sentencing, including consideration of appropriate, restorative, non-custodial sentencing measures.
More recently, the TRC noted that overrepresentation of Aboriginal peoples in the criminal justice system and litigation involving residential school survivors revealed the need for training lawyers in these and other areas. In response, Professor Bell began to work in collaboration with representatives from the Edmonton legal community, including lawyers, judges, students, Aboriginal criminal justice workers, faculty members, sessional instructors, and others to develop new educational initiatives relating to competent legal representation of Aboriginals.
"The Gladue course - which responds to a call to action in the final report of the Truth and Reconciliation Commission of Canada that the Federation of Law Societies of Canada and Canadian law schools ensure lawyers receive appropriate cultural competency training - is a welcome addition to our UAlberta Law curriculum and to the students who will gain a deeper understanding of Indigenous peoples and laws with the Canadian legal system," said Dean Paul Paton.
"I've been pleased to support this initiative - in the making since my arrival as Dean - and commend Professor Bell and all of those involved in ensuring a successful launch to what I am confident will become a model for other law schools across Canada. Together with the newly reconstituted Foundations of Law course launched in September, a new seminar offered by Visiting Assistant Professor Hadley Friedland on Aboriginal and Indigenous legal systems, and the enormously successful annual Aboriginal Law Students' Association speaker series, we are transforming our approaches and opportunities to engage our law students. We have more work to do, but the Gladue pilot is an enormously important step forward."