When it comes to Indigenous people, Canadian justice is not blind

Long-term impacts of colonization must be taken into account by Canada’s Gladue courts Lisa Jackson, co-director of Indictment
The Gladue decision requires courts to take into account systemic factors which might have brought an Indigenous offender before the court. Judges are asked to consider alternatives to imprisonment that address the root causes of the offending behaviour. Gladue Courts were established to try to better and fully implement the letter and the spirit of the Gladue decision. More

In the late Spring of 2015, I found myself in a courtroom at Old Toronto City Hall. I was there to observe Gladue Court, one of Canada’s handful of specialized courts for Indigenous people. It was an eye-opening experience. Most people were there for petty crimes driven by addictions and borne of lives of heartbreaking difficulty, almost always stretching back to childhood and beyond, demonstrating with ruthless clarity the impact of intergenerational trauma. This was apparent even from the brief biographies that defence lawyers provided to the judge. 

What caught me off-guard was my own reaction: a wave of helplessness washed over me and I found myself fighting back tears. I viscerally recalled a time long-forgotten, when at age three or four, Children’s Aid apprehended me from my parents, whisked me off to stay with a stern couple who had several foster kids. Thankfully, my stint in government care was brief and I was returned to my parents. I haven’t given it much thought since.

But, sitting in the Gladue courtroom that sunny morning with the uniformed officers and the suited and robed officials elevated on wooden platforms, straining to parse impenetrable legal language, I was thrown back to the memory of being a vulnerable child whose life rested in the hands of strangers who “knew better”. The Authorities. I now understand in a deeper way how Indigenous people’s long histories of residential school, adoption, foster care and all the other ways government dictated our lives stay with us, lodged deep in our bodies.

Remembering My Mother

The sense of feeling diminished and helpless in the face of official figures remains with me, reminding me how powerful our histories are. That helplessness was echoed in my Anishinaabe mother’s interactions with the authorities — starting with her time in residential school from age five to 15 and including stays in mental institutions and hospitals as an adult. When she passed away at age 53, I flipped through stacks of clinical records that dispassionately described her deficiencies. It was painful to see her reduced to a “case,” a collection of data with no sense of the narrative of her life, including the impact of her brutal and loveless upbringing at the Mohawk Residential School. Nothing I read described the woman that I knew to be caring, generous, creative and witty.

I know how heavily my mother bore the direct scars of policies of colonization and the ongoing indignity she suffered in a racist Canada, long before it was considered hip to be native.  I was almost 30 before I began to grasp its impact on my own life.

My first film Suckerfish traced my journey to forgiveness for all the ways my mother didn’t measure up. I looked more deeply and compassionately at her life to see how she’d been victimized and more evenly apportioned all the blame I had previously laid on her. That blame belonged equally to those authorities that had robbed her of her humanity and saw her only as a stereotype. The price she paid was unimaginable.

What The Gladue Courts Consider

This contextualization and humanization is at the heart of the Gladue process in Canada, which calls for the courts to take into account the impacts of colonialism on Indigenous people.

“To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples.” (Justice LeBel for the majority in R. v. Ipeelee, 2012)

After two Supreme Court decisions affirming it, Gladue has barely been implemented across this country, despite overwhelming evidence that the Canadian justice system is not blind to Indigenous people. In 2016, a searing McLean’s article “Canada’s Prisons are the New Residential Schools” detailed the findings of a months-long investigation, revealing discrimination for Indigenous people at every step of the judicial system, especially in the Prairie provinces.

Victims and perpetrators are often the same people

In Indictment, Jonathan Rudin, Program Director of Aboriginal Legal Services, speaks of the deep divide we draw between perpetrators and victims. We condemn perpetrators as bad, and conversely, our hearts go out to victims. But, as one quickly discovers in the justice system, victims and perpetrators are often the same people. It is a challenging truth.

Seeing how my mother’s humanity was overlooked in institutions, and my own difficulty coming to terms with how she was shaped by larger contexts, I’m aware of how easy it is to simplify and stereotype others.

SCENE FROM THE FILM: "I was bored. That's the truth." Shelley explains why she committed her crime.

Working on this film, my co-director Shane Belcourt and I struggled with how to judge Shelly Chartier. As we opened out to a larger view of her history and circumstances, we could embrace Shelly in all her complexity — which feels like a wider, and wiser, view. It is this view that Canada’s judicial system must take on in earnest if it’s to do better by Indigenous people, who continue to suffer injustices at the hands of the justice system.