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Indigenous Peoples and the injustice of justice

Published on February 23, 2022
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This article is part of the series, “Advancing justice,” which explores the relationship between human rights, poverty, racism, and the criminal justice system.

“The Canadian criminal justice system has failed the Aboriginal peoples of Canada — First Nations, Inuit and Métis people, on-reserve and off-reserve, urban and rural — in all territorial and governmental jurisdictions. The principal reason for this crushing failure is the fundamentally different world views of Aboriginal and non-Aboriginal people with respect to such elemental issues as the substantive content of justice and the process of achieving justice.”

Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada (1996)

Context matters

As the author of this work, I claim my space as a Mohawk woman, a daughter, niece, and granddaughter of Indian Residential School survivors, and, most recently, the niece of an aunt found through the work of the Ontario Family Information Liaison Unit, which was created because of the inquiry into Missing and Murdered Indigenous Women and Girls. Injustice sits large in my own reality.

In my previous role with the Office of the Provincial Advocate for Ontario, I attended inquests; worked with leaders, young people, lawyers, coroners, judges, politicians across northern Ontario including remote and fly-in communities. I was honoured to participate along with First Nations young people in the work of the Truth and Reconciliation Commission. I also spent the better part of 14 years of my life working in youth justice and correctional settings in the province of Ontario. I bring a context, or better said, a lived experience that is anchored in 40 years of work with and for Indigenous people, within and beyond the justice sector. I am no expert, but I have stories and experiences that are weaved into the words I am about to share.

This is where my struggle begins. As I write this piece, I feel the tiredness of time as I hear the news and as I am part of the national outcry among First Nations Peoples at the regular discoveries of unmarked graves at the sites of former Indian Residential Schools across the country.[1] At this time, we are hearing weekly about new unmarked graves of children being found. I wonder: how many other schools in this country, other than Indian Residential Schools, had graveyards, rather than playgrounds?

As an Indigenous woman, I know there is an unspoken acceptance that justice as it exists in the lives of Indigenous people is a failure that begins with context. The original people of Turtle Island, now Canada, have a lived experience that is set apart from those who now call Canada home. The form and function of our dispossession from the land, history, and knowledges, as well as the social and economic marginalization of our nations, are driven by a notion of justice that sees our existence as a threat.

A system where the ongoing experiences of racism, bias, and stereotypes play out in the justice system and within courts. A reality that was to be addressed through sentencing provisions of 718.2(e) of the Criminal Code.[2] The provision seeks to address the historic injustice faced by Indigenous people before the courts; and there is an acceptance that in this country no other group has a history or context like that of Indigenous Peoples.

Yet here I sit almost 25 years later writing about the continued injustice of justice.

It is difficult to write from good medicine when you live in a country where the daily experience can become overloaded with the burden of emotional labour. A process of continual suppression of emotion to maintain a countenance of calm. Working to hold on to a professional demeanour as you delicately balance the words that need to be said with social norms that could easily place you into the old but prevailing stereotype of the “angry Indian.”

But then I look into the eyes of the survivors of this system and the eyes of Indigenous young people who have a lived experience that needs to change, and I am reminded why we always need to work from a place of good medicine. We need to anchor our work in the medicine of each other and the hope we can be the source of good medicine, the medicine being change. For change to happen, there are some hard realities that must be faced. Those realities start with so many of the 94 Calls to Action of the Truth and Reconciliation Commission of Canada (TRC) and the 132 Calls for Justice of the National Inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG) that remain unanswered. [3] [4]

But for today, I will focus on the change needed before the courts and within the justice system as I look at two court decisions: R. v Gladue [1999] 1 SCR 688, and R. v Barton, 2019 SCC 33, [2019] 2 S.C.R. 579. As a First Nations woman, I contemplate the implications of these two cases, and the experiences of the two Indigenous women at the heart of these cases on my own life and on the lives of my children.[5] [6]

In introducing this, I feel it is important to acknowledge that while I carry some understanding of the intricacies of the justice system, more often felt to be the injustice system, there is much that I don’t know, much that I am still learning, and much that perhaps my people were never meant to be privy to. My hope is that in admitting what I do not know up front, the reader will do the same. Leave yourself open to the possibility that the inequities that exist in the criminal justice system are telling us that we, as a society, must do things differently.

Background: The numbers

Before I move into the narratives of these two women, I know there is an expectation that I share the facts. The truth is the facts mean little when the history, context, and experiences of the people they reflect have been cut away from them. So, I begin with numbers and will then work to stitch back in the narratives that have been removed.

According to Statistics Canada, in 2018-2019 Indigenous adults represented approximately 4.5 per cent of the adult population in Canada but accounted for 31 per cent of those incarcerated by provinces and territories and 29 per cent of those incarcerated federally.[7] Provincially, Indigenous women represented 42 per cent of those incarcerated in provincial and territorial jails, and Indigenous men represented 28 per cent of admissions. In federal correctional settings, Indigenous women represented 31 per cent, and Indigenous men 23 per cent of those in custody.

In 2020, the Correctional Investigator of Canada noted that despite attempts to address the overrepresentation of Indigenous people in federal institutions, the number of Indigenous people had surpassed 30 per cent of all persons incarcerated in this country, a number that becomes more devastating when it is unpacked and shows that Indigenous women represented 42 per cent of all women in federal institutions. This reflects an approximate increase of 45 per cent in less than ten years, while the overall non-Indigenous population in custody has decreased by almost 14 per cent. The Correctional Investigator Dr. Zinger noted the “national travesty” of the “Indigenization” of the correctional system in Canada, a system that seems to be impervious to change.[8] [9]

Now, let’s look at the numbers when we consider the perspective of Indigenous people as victims of crime. The Statistics Canada report on Criminal Victimization in Canada noted that Indigenous people experience higher rates of violent victimization and then goes on to say when all variables, such as gender and life experience are controlled for, Indigenous identity on its own did not increase the risk factors for violent crime.[10] I cannot understand how you can be Indigenous without gender or without experience.

But when reviewing Canada’s Department of Justice statistics, it is clearly stated that simply having an Indigenous identity is a risk factor for violent crime.[11] The trouble with the numbers is they can be used to misrepresent and minimize an Indigenous reality in one set of numbers and then in the next. The overall numbers noted in Just Facts, released by Canada’s Department of Justice in 2019, state that the rates at which Indigenous women are victims of crime is twice the rate of Indigenous men and triple the rate of non-Indigenous women.[12] Now consider LaPrairie’s work on urban Aboriginal family violence, which noted that 74 per cent of participants in the study did not report the crime and imagine what the real numbers are.[13]

The Native Women’s Association of Canada (NWAC) reports that, in Canada, Indigenous women are three times more likely to be victims of sexual assault than non-Indigenous women. Between 1997-2000, the homicide rates of Indigenous women were seven times the rate experienced by non-Indigenous women.[14] In Amnesty International’s 2004 report, Stolen Sisters: Discrimination and Violence Against Indigenous Women in Canada, it is stated that status First Nations women were five times more likely than all other women, aged 25-44, to die as the result of violence.[15]

As we have learned through the work of the Truth and Reconciliation Commission of Canada and the National Inquiry into Missing and Murdered Indigenous Women and Girls, homicides involving Indigenous women are more likely to go unsolved. In the 2009 report, Voices of Our Sisters in Spirit, NWAC noted 43 per cent of homicide cases involving Indigenous women remained unsolved, compared to 16 per cent of unsolved cases associated with non-Indigenous women across Canada.[16]

When it comes to Indigenous young people as victims of crime, Carol LaPrairie wrote, there is a strong relationship between childhood “domestic victimization and subsequent victimization and criminal activity later in life.”[17]

The stark reality is that many of the factors contributing to Indigenous people being at increased risk to be victims of crime are the same factors that are considered in the Gladue analysis framework tied to the sentencing of Indigenous people convicted of a crime (more on this later). Both victims and offenders share a legacy of trauma that ties back to efforts to forcibly assimilate Indigenous Peoples, often through violence and abuse, including in the Indian Residential School system.

Both also share the historic and ongoing experience of colonization. This includes experiences of forced separation from family and community, and maltreatment in childhood, continued jurisdictional neglect resulting in community vulnerabilities associated with the lack of stable housing, lack of access to an adequate diet, including clean water and healthy foods, and lack of access to an equitable education.

All of this can lead directly to realities of self-medication and substance use, and unmet mental and wellbeing health needs. All of this contributes directly to the overrepresentation of Indigenous people in the criminal justice system as both victims and offenders.

Background: Provisions in Canada’s Criminal Code

Before moving any further, I want to speak in a bit more detail about Gladue and the Canadian Criminal Code, 718.2(e). This sentencing provision was introduced in 1994 and later revised in 1996. It requires that sentencing courts consider incarceration as a last resort option for all offenders, “with particular attention to Aboriginal offenders” and take notice of the “background of systemic factors” relating to Indigenous people, which may have contributed to bringing the particular individual before the courts, (i.e., the history of colonialism, displacement, and Indian Residential Schools), and how this history continues to translate into lower educational attainment, lower income, higher unemployment, higher rates of mental health needs, substance abuse, and suicide.

What is important to note is that section 718.2(e) was introduced to alleviate the higher rate of incarceration faced by Indigenous people and address the historic and continued impacts of colonialism, and systemic and structural racism. The impact of section 718.2(e) on judicial decisions came into increasing focus after the Supreme Court interpreted it for the first time in 1999 in its landmark Gladue decision.

The intent of 718.2(e) was to require that judges consider these factors at the time of sentencing and consider alternative provisions to incarceration. The change was not a “get out of jail free” card. Rather, it was and is intended as a proactive response to address the over-incarceration of Indigenous people within the provincial and federal prison systems as a means to address the historic and ongoing injustice, racism, and colonialism that shaped, informed, and contributed to the factors that resulted in their presence before the courts and the individual’s moral blameworthiness.

It matters because the courts, as an instrument of societal structure and as the conveyor of the norms and values of a society, have played a role in exacerbating the injustice and inequities many Indigenous people face simply because they are Indigenous. I ask you to remember this last point as I will come back to it later in my reflections.

With this in place, one would think that the injustice of justice has been addressed and that measures are being taken to move the balance back to the side of justice. Unfortunately, this is not the reality. Section 718.2(e) is focused on the Indigenous person and sentencing, but it is a reactive provision that does not address the underpinning societal inequities and prejudices that impact First Nation, Inuit, and Métis people before the courts in this country. All it does is consider what to do with an Indigenous person when they come before the courts for sentencing.

Justice for Indigenous victims of crime

Indigenous women and girls account for 50 per cent of all survivors of human trafficking in Canada. Young women under the age of 18 account for 25 per cent of these numbers.[18] The injustice of justice is that 50 per cent are Indigenous, and even in this statistic they/we are invisible. The past and present realities previously discussed – exposure to violence, a history of involvement with the child welfare system, being 2SLGBTQQIA+, a lack of access to necessities, and vulnerable housing – all factor into creating conditions that isolate and place Indigenous people, and more specifically Indigenous women, at increased risk of being targeted for violence and victimization. Add to this the nature of the relationship Indigenous people have with policing and the justice system, the vehicle through which this country’s violent colonial history was accomplished, it is not hard to see that the system of justice that currently exists serves neither Indigenous offenders nor Indigenous victims.

This victimization has been noted by the Truth and Reconciliation Commission of Canada and reflected in the Calls to Action. It is similarly noted by Amnesty International, Canada, and by the Native Women’s Association of Canada in reports that contributed to the call for a National Inquiry into Missing and Murdered Indigenous Women and Girls, and is noted in the Inquiry’s Final Report and Calls for Justice.

Two Indigenous women

A list of numbers tells one vague story of sparse data collection efforts. The lives of two women that were laid out within a colonial system of justice tell another. One was before the court for her role in a homicide, the other a victim of homicide. I now want to revisit the numbers noted above through the lived realities of Tanis Gladue and Cindy Gladue (not related).

In 1995, one year after sentencing provision 718.2(e) of the Criminal Code was implemented, Jamie Tanis Gladue, a 19-year-old Indigenous woman of Cree and Métis ancestry, mother of two children, living off reserve, was charged in the death of her common-law partner. The original sentencing judge did not apply 718.2 (e) in his determination of sentence, as he believed that at the time of the offence Tanis was not living on reserve and, as such, did not meet what he understood to be the necessary criteria to be considered an Indigenous person.

Tanis appealed the sentencing decision to the British Columbia Court of Appeal and eventually to the Supreme Court of Canada. For Tanis, the original sentence of three years in custody and the ten-year ban from possession of a weapon remained in place. But because of Tanis, the nature of what constitutes being Indigenous and what that means in the courts has been changed. These changes include:

  1. the creation of “Gladue reports,” which provide context and reality about the person awaiting sentencing;
  2. the development of, “Gladue principles” and the rights of Indigenous people before the courts; and
  3. the creation of “Gladue courts,” where judges and those in the court, including lawyers, ideally have the background of training specific to Indigenous people who come before the court.

The R. v Gladue decision, and later R. v Ipeelee [2012],[19] established a Gladue analysis framework that is intended to address the cumulative effects of colonialism and the impacts it has had on Indigenous people especially within the justice system. It is intended to guide judges as they pass sentences on Indigenous persons, and to ensure that the sentences are balanced and proportional by ensuring that systemic factors do not result in further discrimination when they are being sentenced.[20]

In speaking to the failure of justice to act on the part of Indigenous victims of crime, I want to focus on the 2019 Supreme Court of Canada decision in R. v Barton,[21] a case where the failure of the courts to ensure justice for Cindy Gladue resulted in public outcry.

Cindy Gladue, a Métis and Cree woman, was the mother of three children. In 2011, Cindy died brutally in a motel in Edmonton, Alberta. Bradley Barton, a long-haul trucker from Ontario, was charged and, in 2015, was acquitted of first-degree murder in Cindy’s death. Following the public outrage of Indigenous Peoples nationwide, this decision was appealed and overturned. It took nearly ten years and two trials before Barton was found guilty.

The indignities done to Cindy Gladue’s body, her memory, and her family during this trial were numerous. Cindy’s preserved human tissue was used in a trial, something never done previously in any court in this country. It was referred to as a “barbaric” indignity and an example of systemic racism in the justice system.[22] Despite Canada’s rape shield law, her sexual history was laid out during the first trial by Bradley Barton’s lawyer.

Cindy was dehumanized as she was referred to as the Native lady, sex worker, and prostitute who was “here for a good time, not a long time” during the proceedings. Even in his instruction to the jury, Justice Robert Graesser failed Cindy when he neglected to address the rape shield law or failed to give proper instruction to the jury.

Cindy’s family had to hear and witness all of this. Cindy was the victim. Cindy was murdered. How is it that the victim of a murder was seemingly on trial in the court room?

In both cases, the applicability of justice was tied to three things: gender, race, and class. Both individuals in these cases were women, both were Indigenous, and both had their class determined based on the first two factors. There is a prevailing sense that to be Indigenous and to be an Indigenous female is to somehow be less human, less worthy, and somehow less deserving of the protections and provisions of social justice and justice before the courts.

This point has been driven home in reports on violence against women, the overincarceration of Indigenous women, and the historic efforts of colonial forces to circumvent the traditional leadership roles women held within their own culture before the insertion of colonial legislation like the Gradual Civilization Act [1857] and the eventual Indian Act [1867].

Over time the rules of colonial law severed the connections between being Indigenous and being a woman under the marrying out provisions of Sec.12 of the Indian Act. Their leadership roles diminished, then their ties to culture and community stripped away, leaving them exposed and set apart as a group without basic protections simply because they are Indigenous women.

In both cases, the victims of the crime were Indigenous. In one case the person who committed the crime was Indigenous and a woman and in another the person who committed the crime was not Indigenous and was male. One must consider the implications of how Barton was framed in court as a good man who had paid a price in the loss of employment, loss of reputation, and impact on his family. He is referred to as a first-time offender. In the case of Tanis Gladue, she was also deemed a first-time offender, but the court characterized her differently and noted a previous offence for driving under the influence.

Tanis Gladue, a Cree and Métis woman and mother of two, convicted of the murder of her common-law partner, filed an appeal that was the catalyst to what many thought would be the transformation of the justice system for Indigenous people. Yet in Barton’s case, the Supreme Court of Canada once again stated that there are, “detrimental effects of widespread racism against Indigenous people within our criminal justice system.”[23]

Where is the transformation that Indigenous Peoples have been waiting for, that we have been promised for so long?

The crisis of injustice: Reconciliation and justice

The alarming reality is that more than 20 years after the landmark Supreme Court of Canada decision in R. v Gladue, the incarceration of Indigenous people has increased significantly. Fewer Indigenous people receive bail, parole rates have decreased, and Gladue reports are used by the justice system to highlight risk factors rather than to assess moral blameworthiness in determining an appropriate sentence. At the bail stage, overly restrictive and unrealistic conditions are often imposed making it more likely that an individual will breach and be forced into custody.

The inappropriate and often incorrect application of Gladue analysis at bail and at sentencing is in and of itself exacerbating the overrepresentation of Indigenous people in the criminal justice system, the very phenomenon it was meant to address. In 2017, former Supreme Court of Canada Justice Frank Iacobucci spoke to the crisis of overincarceration, stating: “Despite the Court’s commitment, as well as increasing availability of Gladue-related programming, the over-incarceration of Indigenous peoples remains a persistent, growing, and urgent issue for the Canadian criminal justice system. The justice system, as it relates to Indigenous peoples, continues to be in a state of crisis.”[24]

Today, the numbers tell us, violence against Indigenous women is increasing. Even during the COVID-19 pandemic, we see not only an increase in the number of Indigenous victims of crime, but we are also seeing an increasing overrepresentation of Indigenous people in custody. If the numbers were a crisis before, what are they now?

So here I sit writing about the injustice of justice. A system that records trends and uses statistics to frame the “Indigenous experience” of justice in ways that set us up as the failures; when in fact the system has failed to serve us as victims of crime and traps us in a cycle of over-incarceration and recidivism, as the application of Gladue becomes a risk assessment used to justify keeping Indigenous people locked away.

There is no objectivity in how I consider and write about all of this. I am a mother of one daughter and one son. From the time they were born, I have lived with fear.

Will they be a statistic?

Will I or any others in our family?

This is what it means to be a mother of Indigenous children in this country. This is what underpins the importance of the Calls to Action and the Calls for Justice for survivors and intergenerational survivors.

The fear too many of us carry is the legacy and the reality that being Indigenous means you live and breathe the injustice of justice in Canada every single day. These Calls must be the beginning of a new path forward.

I encourage you to seek out and read the final reports of both the Truth and Reconciliation Commission of Canada and the National Inquiry into Missing and Murdered Indigenous Women and Girls and think critically about your role in responding.

In closing I want to return to my earlier comment about the role of the courts. Before I do that, I want to reference the following statement: “It is untenable to say that discrimination which builds upon the effects of racial discrimination is not racial discrimination itself.” To this I add the following: “the justice system has been a central instrument of the destructive polices of the past….” These statements are contained in the conclusion of Chapter 4 of the 1999 report, The Justice System and Aboriginal People, released by the Aboriginal Justice Inquiry in Manitoba.[25]

The report was released the same year as the S.C.C. decision on Gladue. In reading these statements, I ask myself, in the last 23 years substantively, what has changed?

Postscript

TRC and the Calls to Action

As noted in CTA 30 and 38, all provincial, territorial, and federal levels of government must work to reduce the overincarceration of Indigenous adults and youth and issue reports tied to this progress. Additionally, there is the call for the federal government to report on the criminal victimization of Aboriginal people, including homicides and family violence victimization (39). There is the need to fund and work with Aboriginal people to create accessible victim specific programs (40). Moving forward, there is a need to realize the creation of Aboriginal Justice Systems (42) and the creation and funding of Indigenous law institutes (50).

The Commission also calls upon the Federation of Law Societies of Canada to ensure lawyers have training tied to the legacy of the Indian Residential Schools, and to require skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism (27). A similar requirement is made for all law schools to provide similar training to all law students (28).

Perhaps most importantly, the Commission called for a public inquiry into the deaths of Missing and Murdered Indigenous Women and Girls (40).

MMIWG and the Calls for Justice

The Calls for Justice begin with the call for a national action plan to address violence against Indigenous woman, girls, and 2SLGBTQQIA (1.1). In creating that national plan, I believe that Canada must begin with the Criminal Code and address the defining of offences that minimize the culpability of offenders (5.2) and review and reform the laws tied to sexualized violence and intimate partner violence (5.3). Independent victim services for victims of crime must be fully funded, culturally anchored, and include access to free legal services (5.6).

Additional services include expanded resources for legal aid (5.13), and the expansion of restorative justice programs and Indigenous Peoples’ courts (5.11). Central to the courts is the need to increase the number of Gladue courts and establish national standards tied to Gladue reports (5.15), and a thorough evaluation of Gladue principles as it relates to violence against Indigenous women, girls, and 2SLGBTQQIA (5.17).

Given the overincarceration, there is the need to appoint a Deputy Commissioner for Indigenous Corrections (5.23) to focus on addressing the needs of Indigenous persons who are incarcerated and to bring focused attention to the decarceration of Indigenous women and girls (14.1). This must include the provision of intensive and comprehensive mental health, addictions, and trauma services for incarcerated Indigenous women and girls and 2SLGBTQQIA people while ensuring that the term of care is needs-based and not tied to the duration of incarceration. These plans and services must follow the individuals as they integrate into the community (14.6)

Endnotes

[1] References to unmarked graves were raised during the proceedings of the Truth and Reconciliation Commission of Canada. A separate document specific to unmarked graves is “Canada’s Residential Schools: Missing Children and Unmarked Burials: The Final Report of the Truth and Reconciliation Commission of Canada, Volume 4.” 2015. Pages 125-130 address the need for a national strategy to look into a number of areas specific to these unmarked graves. The volume references the aversion of Indian Affairs to send home the bodies of deceased children because of the associated costs and, in other cases, if parents were unable to pay the cost to bring home their children.

[2] Criminal Code of Canada s.718.2: “A court that imposes a sentence shall also take into consideration the following principles: … (e) 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.”

[3] For Calls to Action, see: Truth and Reconciliation Commission of Canada. 2015. Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada. Pages 319-338.

[4] For Calls to Justice, see: National Inquiry into Missing and Murdered Indigenous Women and Girls. 2019. Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls. Volume 1b. Pages 169-218.

[5] R v Gladue [1999] 1 SCR 688.

[6] R v Barton, 2019 SCC 33, [2019] 2 S.C.R. 579.

[7] Malakieh, Jamil. December 2020. “Adult and youth correctional statistics in Canada, 2018/2019.” Pg. 5. Statistics Canada.

[8] Office of the Correctional Investigator. 2021. Third Covid Status Update. Pg.4. Indigenous peoples in the Saskatchewan Penitentiary and Stoney Mountain in Manitoba accounted for almost 60 per cent of all COVID-19 cases, 70 per cent of all inmates in these two settings are Indigenous.

[9] Office of the Correctional Investigator. January 21, 2020. “News Release: Indigenous People in Federal Custody Surpasses 30% .”

[10] Cotter, Adam. “Criminal victimization in Canada, 2019.” 2021. Statistics Canada.

[11] Department of Justice Canada. 2019. “Just Facts.”

[12] Department of Justice Canada. 2019. “Just Facts.”

[13] LaPrairie, Carol. 1995. “Seen but not heard: Native people in four Canadian inner cities.” The Journal of Human Justice 6,30–45.

[14] Native Women’s Association of Canada. 2015. “Fact Sheet: Violence Against Aboriginal Women.”

[15] Amnesty International. 2004. Stolen Sisters: Discrimination and Violence Against Indigenous Women in Canada. A Summary of Amnesty International’s Concerns. Pg. 2.

[16] Native Women’s Association of Canada. 2009. Voices of Our Sisters In Spirit: A Report to Families and Communities. Pg. 97.

[17] LaPrairie, Carol. 1995. “Seen but not heard: Native people in four Canadian inner cities.” The Journal of Human Justice 6, 30–45.

[18] Native Women’s Association of Canada. Trafficking of Indigenous Women and Girls in Canada: Submission to the Standing Committee on Justice and Human Rights.

[19] R. v Ipeelee – the SCC decision is actually about two cases on appeal before the court at the time; Manaise Ipeelee and Frank Ralph Ladue. The SCC reaffirmed 718.2 (e), specifically the factors courts must consider when sentencing Aboriginal offenders – such as cultural oppression, poverty, and the legacy and history of abuse in residential schools. In this case, both men were serving LTSO – Long Term Sentencing Orders.

[20] R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433.

[21] Women’s Legal Education & Action Fund (LEAF). No date. “R. v. Barton (2017, 2019).”

[22] Barrera, Jorge. February 26, 2021. “Family seeks return of Cindy Gladue’s remains from Alberta medical examiner’s office.” CBC (CBC Investigates).

[23] R. v. Barton 2019 SCC 33. Pg 589.

[24] Department of Justice Canada. 2017. Spotlight on Gladue: Challenges, Experiences, and Possibilities in Canada’s Criminal Justice System.

[25] The Aboriginal Justice Implementation Commission (Government of Manitoba). 1999. “Chapter 4: Aboriginal Over-representation.” The Justice System and Aboriginal People, Volume 1.

Advancing justice podcast: Interview with Laura Arndt

Read all articles in the “Advancing justice” series