Gladue Principles and Their Applications In Criminal Justice and

Gladue Principles and Their Applications In
Criminal Justice and Mental Health Systems:
A Symposium
Reghuvaran Kunjukrishnan, MBBS, LLM
Michelle O’Bonsawin, LLB,
AG Ahmed, MB, LLM,
Accreditation Statement
TBC
Disclosure
We have no conflicts or biases to disclose for this presentation. Any affiliations
that any of us has had with pharmaceutical companies are listed below:
Member advisory
Board
Industry
sponsored
professional
presentations
Investigator
initiated research
Contract
research
Stock
holdings
AG Ahmed – JassenOrtho National
Correctional Psychiatry
Advisory Board
None
AG Ahmed –
Janssen-Ortho
None
12/9/2013
Race Based Policy
Learning Objectives
• At the end of the symposium, participants will be
familiar with:
– Principles of sentencing in common law
– s. 718.2(e) C.C.C. and the Gladue principles
– Applications of Gladue analysis to other sub groups of
population:
• Patients under disposition of the Review Board
pursuant to Part XX.1 of the Criminal Code
• Individuals marginalized by poverty
– How Gladue principles apply Risk-Need-Responsivity
Principles
Symposium Layout
• Michelle O’Bonsawin:
– Introduction and Legal Foundation
• AG Ahmed:
– Gladue Analysis, Review Boards and RNR
• Reghuvaran Kunjukrishnan:
– Applications of Gladue Analysis to other subgroups of the
society
Introduction and Legal Foundation
Michelle O’Bonsawin
Question
What was the purpose of s. 718.2(e) of the Criminal
Code?
A. Reduce sentences of Aboriginal offenders on the
reserve
B. Prohibited the incarceration of first generation
Aboriginal offenders
C. Address the issue of over representation of Aboriginal
offenders in Prison Settings
D. Balance the ratio of Aboriginal non Aboriginal
offenders in the Canadian Criminal Justice System
Background
• Over the years, studies and statistics have shown an
over-representation of Aboriginal peoples in the
criminal justice system and in the prisons.
• The legislator responded to that situation in 1996
with a statutory provision.
• The objective of the amendments was to incorporate
principles of restorative justice into Canadian
Criminal Law.
Question
What is the effect of s. 718.2(e) on the sentencing of
Aboriginal offenders?
A. Automatically reduces the sentences
B. Takes into account the Aboriginal offender’s personal
circumstances
C. No detention sentence can be ordered
D. Absolute discharge must be ordered
Criminal Code Provisions
• 718.1 A sentence must be proportionate to the
gravity of the offence and the degree of
responsibility of the offender.
• 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 should be
considered for all offenders, with particular attention
to the circumstances of aboriginal offenders.
Role of Sanctions
• The objectives of a sanction are the
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Denunciation
Retribution
Deterrence
Incapacitation
Restorative Justice
Rehabilitation
Early Intervention.
Sanction
• Incarceration is a last resort sanction to be ordered
when necessary
• Reduce the use of imprisonment,
• Increase the use of restorative justice and
• Increase sensitive to aboriginal community.
Question
To whom does the Gladue Principles apply?
A. Registred Aboriginal Offenders only (under the
Indian Act)
B. Aboriginal offenders living on reserves only
C. All Aboriginal offenders
D. Aboriginal offenders living on reserves or Registred
Aboriginals only
R. v. Gladue
• In 1999, the decision in R. v. Gladue was appealed on
the basis that the trial judge erred in determining the
sentence by not applying s. 718.2(e) of the Code.
Facts
•
•
•
•
•
•
•
Nineteen years old Aboriginal
Mother of two and pregnant with her third child
Supportive family
No criminal record other than conviction for impaired driving
Attending alcohol abuse counseling
Upgrading her education
Hyperthyroid condition causing overreaction to emotional
situations.
Facts
• Provocation of accused by the victim, her common
law spouse
• She stabbed the victim twice and intended to harm
him.
• She showed signs of remorse and pled guilty
• Gladue was accused murder and pled guilty to
manslaughter.
• She was sentenced to three years imprisonment.
Issue
• The question is whether the judge erred by not
applying s. 718.2(e) of the Code.
Principles
• The Supreme Court of Canada stated that when a judge is
sentencing an aboriginal offender, it is essential to
consider the unique background and systemic factors
which may have played a part in bringing the particular
offender before the courts.
• If those factors were significant, the judge will need to
consider them in order to determine if imprisonment
would actually serve to deter, or to denounce crime in a
sense that would be meaningful to the community of
which the offender is a member.
Principles
• The sentencing judge must take into account the
different circumstances surrounding the offence, the
accused, the victim and the community. The judge must
understand the difficulties aboriginal people have faced.
• The sentencing judge must still impose a sentence that is
fit for the offence and the offender. S. 718, 718.1 and
718.2 must be read and interpreted as a whole and
therefore, the sentence should not be automatically
reduced simply because of the aboriginal origins of the
offender.
Principles
• The Gladue Principle applies to Aboriginals residing
on- or off-reserve. It also applies to Aboriginals who
come in the scope of s. 25 of the Canadian Charter of
Rights and Freedoms and s. 35 of the Constitution
Act 1982.
Restorative Justice
• This approach focuses on the individuals involved in
the offence and the community.
• This case aims at taking a different approach to
sentencing and not necessarily a different result.
• In cases where serious offences are committed,
restorative justice is not the only approach the courts
should consider.
• Denunciation and deterrence will be more important in
determining the appropriate sentence for the
aboriginal offender.
R. v. Paulin [2011]
• More recently, the Courts have applied and
elaborated on the principle.
• In R. v. Paulin, the court considered the unique
circumstances that face aboriginal offenders when
determining the sentence. Factors such as
unemployment, poor education, limited
opportunities, substance abuse, loneliness as well as
family and community support should be considered.
R. v. Ashkewe [2010]
• In R. v. Ashkewe, the court stated that when
incarceration is required, the judge will need to
determine the length of the sentence while taking
into account s. 718.2(e) of the Criminal Code.
• Mitigating factors and restorative justice will carry
more weight than the denunciation and deterrent
objectives and therefore imprisonment sentences
will be shorter.
R. v. Collins [2011]
• In R. v. Collins, the trial judge failed to apply s.
718.2(e) of the Code and stated that offenders,
including Aboriginals, were responsible and
accountable for their actions.
• The Court of Appeal determined that the provision
did not mean a shift of blame or responsibility for
actions, but it recognizes the impact of Canada’s
treatment of Aboriginals.
R. v. Jensen [2005]
• In R. v. Jensen, the court clearly indicated that the
factors to be considered pursuant to s. 718.2(e) of
the Code must be considered in all cases including
cases where the offences are serious.
• This is also the case when the offence is violent, R. v.
Morris.
R. v. Kakekagamick [2006]
• The courts have also discussed the importance of a
pre-sentence Gladue report as opposed to merely
stating the aboriginal origins of the offender.
• As mentioned in R. v. Kakekagamick, such report
allows the courts to examine the Aboriginal
offender’s status more thoroughly and to respect
s.718.2(e).
Reflections on the Gladue Principles
• As mentioned by Brian Pfeferle, the courts have had difficulty
applying the Gladue principles to some Aboriginals.
• Even if the court has mentioned in R. v. Gladue that such
analysis should take place in all cases involving an aboriginal
offender, the case law has shown that restorative sentencing
has not always been applied where the offender has little or
no contact with an aboriginal community.
• The Gladue principle is applied differently to aboriginal in
urban communities and the sentencing outcomes are also
different.
Question
In regards to the Gladue Principles and Review Board
hearings, one of the following is correct.
• A. The Gladue Principles supercedes the risk principle
• B. s. 718.2(e) applies to the Board when making a
disposition
• C. The inquisitorial nature of the RB requires all
relevant information be considered when making a
disposition
• D. Gladue principles only apply if a Gladue Report is
ordered
Criminal Code Provisions – Part XX.1
• 672.54 Where a court or Review Board makes a
disposition under subsection 672.45(2) or section
672.47 or 672.83, it shall, taking into consideration
the need to protect the public from dangerous
persons, the mental condition of the accused, the
reintegration of the accused into society and the
other needs of the accused, make one of the
following dispositions that is the least onerous and
least restrictive to the accused:
Criminal Code Provisions – Part XX.1
• (a) where a verdict of not criminally responsible on account of
mental disorder has been rendered in respect of the accused
and, in the opinion of the court or Review Board, the accused
is not a significant threat to the safety of the public, by order,
direct that the accused be discharged absolutely;
• (b) by order, direct that the accused be discharged subject to
such conditions as the court or Review Board considers
appropriate; or
• (c) by order, direct that the accused be detained in custody in
a hospital, subject to such conditions as the court or Review
Board considers appropriate.
Winko v. British Columbia (Forensic
Psychiatric Institute) (1999)
• The Supreme Court of Canada stated: “The regime’s
departure from traditional adversarial model underscores the
distinctive role that the provisions of Part XX.1 play within the
criminal justice system.[…] The system is inquisitorial. It places
the burden of reviewing all relevant evidence on both sides of
the case on the court or Review Board.” Para. 55.
• The Review board has the responsibility to examine the
evidence presented as well as the duty to seek necessary
evidence in order to make its disposition. The factors which
should be considered when applying s. 718.2(e) should also
be considered by the Board.
Question
Which of the following is a correct statement in Review
Board contexts?
• A. Gladue report is drafted when it is pertinent and relevant
• B. Gladue reports are drafted for every hearing when an
Aboriginal NCR accused is involved
• C. Gladue reports is drafted only at the first Review Board
hearing of the Aboriginal NCR accused
• D. Gladue reports is drafted only when an absolute discharge
is recommended
Scott (Re) [2008]
• In Scott (Re), the Ontario Review Board determined
that the accused’ unique aboriginal background was
not relevant to the disposition of the Board.
• The parties did not submit arguments that the
aboriginal background of the accused was relevant or
pertinent to the Board’s disposition.
R. v. Sim [2005] O.J. No. 4432
• The Ontario Court of Appeal’s decision in R. v. Sim in
2005 was called to determine the application of s.
718.2(e) as well as the importance of the factors
considered.
• The Cree and Irish descent accused was charged with
theft under 5,000$ and was found NCR on account of
mental disorder. He had a criminal record and
suffered from schizophrenia.
R. v. Sim
• S. 718.2(e) does not apply to Review Board
dispositions because they are not sentencing courts.
The Review Board has a positive duty to ensure that
unique factors of Aboriginal offenders are taken into
account. The Board must have the necessary
information concerning the NCR accused’s aboriginal
background in order to make a disposition.
R. v. Sim
• The Review Board has the obligation to ensure that
unique factors associated with aboriginal offenders
are presented and considered in making a disposition
under Part XX.1 of the Code was confirmed by the
Court.
• The Court of Appeal limited the application of R. v.
Kakekagamick in ORB contexts. Thus, a “Gladue
report” is not always necessary, but it should be
done when it is deemed relevant and pertinent.
Chickite (RE) [2008]
• In Chickite (Re), the British Columbia Review Board
also took into consideration the Ontario Court of
Appeal’s decision in R. v. Sim and decided that the
principles in R. v. Gladue should be considered by the
Board.
• It seems that a Gladue report and analysis is required
where it is pertinent and relevant when it comes to
the liberty and detention of Aboriginal people.
Gladue Analysis, Review Boards and RNR
AG Ahmed
Restorative Justice
• Gladue encourages judges to use Restorative Justice
when they’re sentencing Aboriginal people.
• Restorative justice aims to restore
– the offender,
– the victims of the crime, and
– their community
 Reduce recidivism
• The sentence should
– address the issues that got the offenders into trouble with
the law in the first place
– one that’s more appropriate and meaningful to the
offender’s culture.
Characteristics of Gladue Analysis
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•
•
Applies to all Aboriginal people
Applies to all CCC crimes
Can be waived
Applies at bail, sentencing or parole
Not a “get out of jail free card”
Formal pre-sentence (Gladue Report) must be
ordered
Gladue Analysis and Sentencing
• Requirements for
Gladue Analysis:
– Self identification
– Available options
– Gladue Report
• Types of Sentences /
Dispositions:
– Least restrictive
– Absolute discharge to
Federal sentence vs
Absolute discharge to
Detention Order
R. v. Kakekagamick: Sentencing principles of Denunciation and Deterrence outweighed
the objectives of Restorative justice expressed in sec. 718.2(e) and the principles
established in the Gladue decision. Laforme J.A.
Does the scope of s. 718.2(e) extend beyond the CJS: Sim
• Sim, was 34 years at his 4th ORB hearing in 2004 in medium
security facility
• Lengthy criminal record starting at age 16: 40 convictions (16
property-related offences, 4 narcotics and alcohol-related
offences and 8 assaults (2 victims seriously injured)
convictions
• Diagnoses: Schizophrenia, Poly-substance Abuse, and
Antisocial Personality Disorder.
• Ongoing substance abuse, uneven institutional behaviour,
persistent delusions and auditory hallucinations, lack of
insight into his mental illness and rejects his diagnosis.
• Elopement x 2 and on the last occasion, in 2003, he was
charged with B & E and assault while AWOL.
Sim cont’d
• Although there was some improvement with
medication, he did not recognize the benefits of his
medication nor did he appreciate the consequences
of discontinuing its use.
• At last hearing, the ORB was unanimous in finding
that he remained a substantial threat to public
safety.
• DO: With community living in approved
accommodation.
– One member of the Board dissented (wanted the
provision of community living deleted).
Sim:
Appeal
• He filed an inmate notice of appeal challenge
• Issues:
1. “Did the ORB err in finding that the appellant remains a
significant threat to public safety?”
2. “Did the ORB err by failing to ensure that it had adequate
information in relation to the appellant's aboriginal
background before making its decision?”
The amicus curiae submitted that
• “the ORB is under a positive duty to ensure that the unique factors
associated with aboriginal accused are presented to, and
considered by, the ORB when it is applying the criteria for making
dispositions pursuant to s. 672.54 of the Criminal Code”.
• “the ORB failed to live up to that duty in the circumstances of this
case.”
• “He moves to introduce as fresh evidence on this appeal the report
of a "Gladue caseworker" from Aboriginal Legal Services of Toronto,
outlining the services available to aboriginal offenders including
services that would assist the appellant in maintaining his
medication, and services that would provide him with housing and
substance abuse counselling.”
Analysis Issue #1: “Did the ORB err in finding that the [Sim]
remains a significant threat to public safety?”
• Pursuant to s. 672.78 of the Criminal Code, the court can only
intervene where it is of the opinion that
– (a) the ORB's order is unreasonable or cannot be
supported by the evidence
– (b) the ORB's order is based upon a wrong decision on a
question of law, or
– (c) there was a miscarriage of justice.
”no basis upon which to interfere with the ORB's
determination that the appellant continues to represent a
significant threat to public safety”.
Analysis Issue #2: “Did the ORB err by failing to ensure
that it had adequate information in relation to [Sim's]
aboriginal background before making its decision?”
• Little evidence before the ORB as to the relevance of Sim’s
aboriginal background or as to the services in the aboriginal
community that might be of assistance him. The Aboriginal Services
Unit agreed and Sim attended native healing services.
• Sketchy details of the possibility of attaining Sim’s declared desire to
be associated with a band in Saskatchewan and the current plan
was to remain in Toronto if released.
• The court agreed “that the ORB is not a sentencing court and that
s. 718.2(e) does not apply to ORB dispositions. However, … the
principles identified by the Supreme Court in Gladue have a bearing
upon the duties and responsibilities of the ORB.
Analysis
• In Gladue, the Supreme Court noted at para. 61 that "the excessive
imprisonment of aboriginal people is only the tip of the iceberg insofar
as the estrangement of the aboriginal peoples from the Canadian
criminal justice system is concerned."
• And since “Part XX.1 of the Criminal Code is an integral element of the
Canadian criminal justice system, and the disposition of aboriginal NCR
accused should be considered in the light of the principles articulated in
Gladue.”
• Supreme Court recognized the problem of systemic bias and
discrimination against Aboriginals in the criminal justice system. (R v.
Gladue and in R. v. Williams)
• Gladue adopted the conclusion of the Royal Commission on Aboriginal
Peoples (at para. 62) and the Aboriginal Justice Inquiry of Manitoba (at
para. 63) “that Canada's criminal justice had failed to take into account
"the substantially different cultural values and experience of aboriginal
people."
• Appeal dismissed “with the expectation that the ORB
will live up to its legal duty to ensure that it has
before it adequate information pertaining to the
particular circumstances of aboriginal NCR accused
when such information is relevant to the ORB's
disposition pursuant to s. 672.54.”
• “In the circumstances of the present case, I do not
think that the ORB's failure to elicit more information
relating to the appellant's aboriginality amounted to
an error of law justifying this court in setting aside
the ORB's disposition. “
s. 672.54
• Review Board Disposition Criteria
1. The need to protect the public from dangerous
persons
2. The mental condition of the accused
3. The reintegration of the accused into society, and
4. The other needs of the accused.
Gladue & s. 672.54 Analysis
• No reason to disregard the Gladue principles when assessing
the criminal justice system's treatment of NCR accused
• Although full background information may helpful in assessing
dangerousness an aboriginal NCR accused, aboriginality in
itself has little direct bearing upon the dangerousness or the
mental condition
• Gladue analysis is germane in regards to criteria 3 and 4 of s.
672.54
Gladue analysis should complement s. 672.54 analysis
Other Cases
• Scott (Re) [2008] O.R.B.D. No. 306
• Chickite (Re) [2008] B.C.R.B.D. No. 11
• Southwind
Gladue and RNR Principles
• Risk-Need-Responsibility principles useful guidelines
for treatment intervention designed to reduced risk
(Andrews, Bonta & Hoge 1990)
• Conceptualized within general personality and
cognitive social learning theory of criminal conduct
(Andrews & Bonta, 2003, 2006)
The 3 Core Principles
• Risk Principle:
– Match the level of service to the offender’s risk to reoffend i. e . High, Medium and Low levels of Risk should
receive corresponding Rx intensities.
• Need Principle:
– Assess, identify and target criminogenic needs in
treatment  reduced risk and reduced recidivism
• Responsivity Principles:
– Maximize treatment effectiveness by offering CBT and
accommodating recipient’s specific characteristics eg
intellect, motivation, cultural background, abilities and
strengths, etc.
• Responsivity has 2 parts:
– General Responsivity
• Use of Cognitive social learning methods to influence
behaviour
– Specific Responsivity
• Improving Cognitive Behaviour Intervention (strength,
learning styles, personality etc. of the treatment
recipient.)
In Correction literature, treatment approaches that follow to RNR model
have been found to reduce recidivism by upto 35% in adults and young
offenders (Andrew & Bonta, 2003)
Gladue and RNR Principles
• Gladue Analysis is complementary to both the need
and responsivity principle RNR model.
• Though more common on conceptualizing treatment
in correctionalenvironment there is no reason why
the same principle cannot apply to a NCR patient
within the Review Board system.
First Nation Courts (New Westminster, BC)
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For self-identifying Aboriginal person: bail or sentencing hearing
A holistic, restorative and healing approach to sentencing
Focus on rehabilitation whenever possible
Hears criminal and related child protection matters.
Hearing by application only
AboriginalsC focuses on community
Everyone has a chance to be heard
Judge works with everyone to develop a healing plan
Culture sensitive healing program
Offender expected to stick to healing plan
Offender expected to attend future court date
Aboriginal Review Board
•?
Aboriginal Review Board
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•
•
•
•
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•
•
For self-identified Aboriginal persons under RB
A holistic, restorative and healing Disposition
Focus on rehabilitation whenever possible
Hears all unfit and NCR cases.
Hearing by application only
AboriginalsC focuses on community
Everyone has a chance to be heard
Board works with everyone to develop a Recovery Focused Risk
Management Plan
Culturally sensitive healing program
Accused follow Recovery Focused Risk Management Plan
All accused under the Board must have a Gladue report
All accused under the Board expected to hearings
Applications of Gladue Analysis to other
subgroups of the population
Reghuvaran Kunjukrishnan
1996 Sentencing Principles in the
Criminal Code Part XXIII were
amended by the legislature
Section 718.1: “A sentence must
be proportionate to the gravity
of the offense and the degree of
responsibility of the offender”
Section 718.2(e): of the CCC stated that “all
available sanctions other than imprisonment
that are reasonable in the circumstances
should be considered for all offenders, with
particular attention to the circumstances of
Aboriginal offenders”
Trial Judge in Gladue decided
Suspended sentence or conditional sentence not
appropriate
 Aboriginal status not relevant as AC and victim
lived in urban area
 The offense was a very serious one
 Appropriate sentence was 3 years imprisonment
Court of Appeal for B.C. upheld the sentence
Supreme Court of Canada in 1999
•Dismissed the appeal
•Sentence was appropriate given the seriousness
of the offense
•Enunciated the Gladue Principle:
Sec. 718.2(e) also applied to Aboriginals residing
on or off the reserve
Application of Gladue is:
Remedial in nature
Ameliorate serious problems for
overrepresentation of Aboriginals in prisons
Restorative approach to sentencing
Factors specific to Aboriginal
People/Offenders
Poverty
Substance abuse
Lack of education
Lack of employment opportunities
The Leader-Post (Regina) Report
25-8-2008
Canada’s Aboriginal People
Rank last in social indicators related to poverty
Lowest income
Highest infant mortality rate
The poorest housing
One in four children lives in poverty
One in eight children disabled [doubled that of all children in Canada]
43% of children lack basic dental care
Overcrowding in Aboriginal families double the rate of all Canadian
families
Mould contaminates half of the Aboriginal households
Canada’s Aboriginal People
Half of Aboriginal Children below 15
years of age in urban areas, with single
parents
Of all the off-reserve Aboriginal children,
40% live in poverty
RCMP Discussion Paper (2007)
Aboriginal poverty
Root cause of crimes
Aboriginal population
Recommended spending billions of dollars on
education and skill training
Intergenerational poverty
despair
gang activities
Aboriginal poverty
drug & alcohol abuse
crime
Crimes Aboriginal population
• Aboriginal people 3.8% of general population but
19% of prison population
• Aboriginal women 32% Federal Female Inmates
Prairie Region Report by OCI 2012
• Aboriginal people
– > 55% of Sask Pen
– > 60% of Stoney Mountain Pen
• 2005 Stats
– Aboriginal people 15% of Sask Population
– 81% of inmates in Provincial custody
– 76% of youth inmates in custody
• Aboriginal incarceration rate federally and
provincially: 910/100,000 vs Non Aboriginal
100/100,000
Section 718.2(e): of the CCC stated that “all
available sanctions other than imprisonment
that are reasonable in the circumstances
should be considered for all offenders, with
particular attention to the circumstances of
Aboriginal offenders” and socioeconomically
disadvantaged offenders (the poor)
Origins of Crime
1.
2.
3.
4.
5.
Poverty/lack of financial resources
Lack of Education
Persistent Unemployment
Poor Housing
Parental Factors – alcohol + drug abuse
- Domestic violence
- Child abuse/neglect
Antisocial behaviours, antisocial peers – Criminal Thinking
Poverty
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The Bible has reference to poverty: God
judged the kings of Israel by their treatment of
the poor
Jesus seemed to favour the poor and their
company over that of the rich and powerful
Catholic Church – the poor ‘deserved’ charity
The poor were “closer to God”
Poverty (cont’d)
The Protestant work ethic
The poor
were lazy and refused to “pick themselves
up by their own bootstraps”
If the poor are lazy and refuse to work
hard
they “choose” crime as an easy
way out
Poverty (cont’d)
Defined according to an economic
standard
“Poverty line” – based upon income
considered to meet basic living standards
Percent of population below the poverty
line used as a measure of social stability.
Senate committee on Poverty –
1971- Senator David Croll
“Poverty is the great social issue of our time.
The poor do not choose poverty. It is at once
their affliction and our national shame. No
nation can achieve true greatness if it lacks the
courage and determination to undertake the
surgery necessary to remove the cancer of
poverty from its body politic.”
Poverty and Crime
Direct correlation between poverty and crime
[The economic theory of crime- by Becker, 1968, Block and
Heineke, 1975, Kelly, 2000,]
People resort to crime only if the costs are lower than
benefits
Poverty increases the chances of property crime [theft,
burglary, robbery]
Imprisonment costs more than the crime itself
Better to reduce crime than imprisonment from economical
point of view
2006- Organization of Economic
Cooperation and Development
Canada last among 14 industrialized nations on
investment in early childhood education and care
Denmark spent 2% of GDP
Sweden spent 1.7% of GDP
Norway spent 1.5% of GDP
U.S. spent 0.5% of GDP
Canada spent 0.25% of GDP
Children 6 years and under attending
regulated Children Services
Canada
U.K.
France
20%
60%
69%
(40% in QC)
Senator Hugh Segal –Toronto
Star 2011
Almost all those in Canada’s Prisons came from beneath
the poverty line.
Less than 10% of Canadians live beneath the poverty
line
Almost 100% of prison inmates come from that 10%
Aboriginals - 4% of Canada’s population and 20% of
federal prison population
Senator Hugh Segal
Tough on poverty
safer communities
and less prison population
Costs of one Federal prisoner per year$147,000
A guaranteed annual income – GAI
$12,000-$20,000 annually to bring a person
above poverty line.
Sandro Contenta and Tim Rankin
– Review in Toronto Star 2008
More than 70% of prisoners do not complete high
school
70% of Offenders have unstable job histories
4 out of 5 have serious substance abuse problems
Among 300 homeless adults in Toronto, 73%
arrested. 49% incarcerated at least once. 12% of
women have served time.
Poverty and Alcohol Abuse
Toronto Study [Matheson 2011]
In poor neighbourhoods men drink 3 times
more alcoholic beverages than women
Women in poor areas 2.6 drinks/week
Women in affluent areas 2.2 drinks/week
Men in poor areas 8.5 drinks/week
Men in affluent areas 4.5 drinks/week
Winnipeg Study [Khan, Murray,
Barnes – 2002]
Increased poverty causes increased
alcohol use and alcohol problems
Recent unemployment decreases alcohol
use
Long term unemployment increases
alcohol use
Poverty and Substance Abuse
Strong association
Long term unemployment
Poor/insecure housing
School dropouts
Access to treatment for addictions [U.S.A.]
Poverty and Domestic Violence
Interwoven
Poverty reduces options for
battered women
Women are primary victims of
poverty
Poverty and Child Abuse/Neglect
Physical abuse correlated strongly with
male unemployment
Sexual abuse and neglect rates less
consistent relationship
Mental Illness and Crime
[Steadman, Osher et al, 2009]
Serious mental illness is over- represented
in CJ population
72% with comorbid substance abuse
disorders
28% without comorbid substance abuse
disorders
POVERTY AND TEENS
Teens committed more violent crimes
when they lived in high poverty areas
When relocated to low poverty areas, rate
diminished by 30-50%
[Ludwig, Duncan, Hirschfield- 2000]
Cuthand in Regina Leader Post (2008)
Aboriginal people and poverty
Aboriginals have: lowest income
highest infant mortality rate
poorest housing
One in eight aboriginal child disabled - double the rate of children in Canada
43% of Aboriginal children lack basic dental care
Overcrowding among Aboriginal families double the rate of all Canadian
families
Mould contaminates half of all Aboriginal households
Almost half of Aboriginals children under15 years old in urban areas live in
single parent families
Close to 100 Aboriginals communities must boil their water
Of all off reserve Aboriginals children 40% live in poverty
Aboriginal vs The Poor
• Aboriginal People
– Lowest income
– High infant mortality
rate
– Poorest housing
– Disable children
– Lower percentage dental
care
– Overcrowding
– Single parent family
• Poor People
– Form almost 100% of
prison population
– Poor education
– Poor housing
– Unstable job history
– Serious SUD
– Domestic violence
– Child abuse / Neglect
Aboriginals vs. The Poor
•Similarities Galore
Section 718.2(e): of the CCC stated that
“all available sanctions other than
imprisonment that are reasonable in the
circumstances should be considered for
all offenders, with particular attention to
the circumstances of Aboriginal
offenders” and socioeconomically
disadvantaged offenders (the poor)
THANKS
Q&A
Aggravating factors:
AC stabbed the victim twice, second time
after AC attempted to escape
AC intended to harm the victim
AC was not afraid of the victim
AC was the aggressor
Restorative Justice
An approach to crime that focuses on:
Healing relationships
Repairing the damage to individuals and
communities
Balancing the needs of victims, communities,
and offenders.
Philosophical Principles of Restorative Justice
Crime - a violation of relationships among people
Results in harm to victims, communities, and
offenders
All these parties have roles and responsibilities.
Restoration, problem solving, and presentation
of future harm
Restorative Justice (cont’d)
More appropriate for less serious crimes
Serious crimes – after conviction and
sentencing
Public education, crime prevention,
medication
Diversion
By police officers before being charged.
By the courts – addiction treatment, anger management programs
(Special Courts)
Alternative measures programs
Community justice committees
Sentencing stage - Sentencing circles
- Restitution to victims
- Help for offenders
After sentence – Victim – Offender Reconciliation Panels
- Safer prison
- Rehabilitation
Core Program Models
Victim – offender mediation [Canada. USA, UK,
Western Europe]
Family Group Conferencing [Maori and Samcan
tradition] Community Justice forums
Sentencing Circles, Healing Circles
Community assisted hearings [Parole hearings]
Appropriate offenses for Restorative Justice
Non-violent
Non-repeat offenders
Less serious crimes
Community Justice Initiative in
Langley, BC
Success in serious personal and sexual violence
1995 Study - Victims felt finally they were heard
- Victims less fearful
- Less preoccupied with the offender
- At peace
Restorative Justice in Canada
First documented case in Elmira, Ontario - 1974
PACO and a Mennonite Prison support worker arranged
2 YOS to meet with the victims with Judge’s permission.
Reparation
Success
Victim – Offender Reconciliation Programs in Canada
based on concepts of Responsibility, Healing,
Reconciliation.
Recognition of traditional approaches by Aboriginal
communities in Canada, NZ, and Australia.
3 Factors promoting Restorative Justice
in Canada
Aboriginal thought
Christian Theology and Values
Feminism
Resources in the community for
proper operation
Volunteers
Conflict Resolution Network Canada
Community Centres for Aboriginals [Wabana
Center]
Religious groups – based of reconciliation and
forgiveness
Victim- Offender Reconciliation Panels
Prisoners and Rehabilitation
Programs in Texas
July 2012 – lowest head count in 5 years – 154,000
156,500 prisoners in 111 state prisons one year ago
Texas incarceration rate per capita dropped from highest to 4th
Alternative treatment and rehabilitation programs more effective, costs less
Other factors- decrease in crime rates aging population.
Specialty counts in major cities – treatment for drug offenders, drunk drivers,
veterans, and prostitutes.
High tech electronic monitoring technology.
Community based probation programs for non-violent offenders
Special in-prison treatment programs
Community based programs for Juvenile Justice System
Interventions
Reduce poverty
Reduce rate of incarceration [Gladue]
Eliminating all crimes is not feasible
Dr. Fraser Mustard
[Child development expert in Toronto]
Early childhood development programs cut future
antisocial/criminal behaviour by half
Dr. David Butler-Jones
Every dollar invested in early years saves $9 in future
spending on health, welfare, and justice systems
RCMP Report: Poverty the root cause of
Aboriginal Crime
Recommended spending billions of dollars on
education and skill-training
Recruiting young Aboriginals into the force
Intergenerational poverty
despair
gang violence social dysfunction
Aboriginals people 19% of prison population; only
3.8% of Canada
Increased poverty leads to increased violent
crime [murder, manslaughter, forcible rape,
robbery, and aggravated assault] (Shawn and
McKay 1989)
Poverty defined as family income below the
poverty threshold
Homicides disproportionally high in areas of
poverty [Bullock (1955), Beasley and
Anternes (1974), Meadenka and Hill (1976)]
POVERTY AND TEENS
Teens committed more violent crimes
when they lived in high poverty areas
When relocated to low poverty areas, rate
diminished by 30-50%
[Ludwig, Duncan, Hirschfield- 2000]
Incidence of Crime
81% of adolescents commit a criminal
offense during their adolescence
9% of adolescents commit serious
offenses
In poor neighbourhoods, 7% of men
are responsible for 50% of all offenses
Holy Grail of Crime [Gottfredson
and Hirschi 1990]
“LOW SELF-CONTROL”
U.S. Studies showed:
Link between unemployment, poverty, and
crime
Other connections:
- income level
- education
- neighbourhood quality
Poverty and crime geographically
concentrated
Social Inequality
Material level of those with least
and material level of other groups
Economists divide the population. 5
groups based on income and wealth
Economic inequality
higher
homicide rate
Relative Deprivation
Psychological component
Quality of life
Feelings of resentment and injustice
Difficult to measure the correlations
with crime
R.v. Gladue [1999]
Gladue
Aboriginal woman, 19 years old
Mother of 2 and pregnant
Killed her CL spouse
Pled guilty to manslaughter
Got 3 years prison term
No previous criminal record
Supportive family
While on bail, attended counseling for alcoholic abuse
And upgraded her education
Provocation by the victim
Suffered from hyperthyroidism
Showed remorse
Crime, Poverty and the Family
[The Honorable William P Barr- Heritage
Foundation Lecture in U.S.A]
A dual approach to deal with crime
Habitual offender/ chronic offenders
1980 study – 240 criminals committed 500,000 crimes in 11 years
Policy of incarceration works - Tough on crime
Preventative measures – economic, social, and moral
rehabilitation of communities.
- anti poverty programs
- poverty as a cause of crime is “overstated”
Application of Gladue Principle
Judges, parole officers, and the CJS in general poorly
understood what systemic discrimination is
Concerns about diversion measures and commit sentencing for
violent offenders
Community sentence mandating offenders to participate in drug
and alcohol rehabilitation
- Anger management
- Counselling programs
Aboriginal Women’s organizations accuse CJS of misogyny –
“ignored and normalized violence against women”
MERCI / THANK YOU!