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Sociology 2256A/B Final: Corrections Lecture Notes Final

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Department
Sociology
Course
Sociology 2256A/B
Professor
Torrens
Semester
Winter

Description
Youth Justice • 1800s, youth confined with adults • Late 1800s, call to separate youth form adults th Notion of reduced responsibility • 20 century, legislation focusing on how best to deal with youth offenders Juvenile Delinquents Act (JDA) • 1908 • Social welfare approach o Parens Patriae: derives from England and the King o State should intervene where the parent or guardian isn’t able to provide • Youth viewed as misdirected, in need of guidance • Best interests of the child • Critiques o Lack of consistency in sentencing o Status offences o Abuse of child and parental rights Young Offenders Act (YOA) • 1984 • Attempted to balance protection with accountability • Shift from the welfare model to that of the adult criminal law model • Criticisms o Increase in youth incarceration o Too much focus on the rights/rehabilitation of youth Youth Criminal Justice Act (YCJA) • 1998: Call for youth justice reform and the development of a new statute to replace the YOA • 1999: Youth Criminal Justice Act first introduced in parliament • 2003: The YCJA came into force – April 1, 2003 o Took seven years, three drafts and more than 160 amendments to create the YCJA • Aimed to be clear about the overriding philosophy of youth justice in Canada o Applies to youth 12-17 • Aimed to o Establish clear principles to guide decision making o Ensure fairness in sentencing o Reduce the rate of custodial sentencing through extrajudicial measures o Reintegrate youth into their communities o Separate serious form non-serious offences • Under the Conservative government’s omnibus bill o Adults – tough on crime, increased incarceration o Youth – moderate changes, continued focus on diversion, harsher sentences for serious crimes o Emphasis on public safety and protection o Easier promotion to adult court for trial o Publication of youth names • Public accessibility to Youth Crime Cases in Canada o JDA without publicity ▪ No names published o Canadian Charter of Rights and Freedoms – Exclusion as unconstitutional o YOA- a compromise ▪ The public and press can attend and report on youth crime and proceedings ▪ But identifying information couldn’t be made public • Publication Bans o Public and media allowed in to witness proceedings o Protection of privacy ▪ Prohibiting the publication of information that would identify a young person’s involvement in the criminal justice system ▪ Restricting access to youth records o Exceptions ▪ When an adult sentence is imposed ▪ When a youth sentence is imposed for a violent offence and the court determines the youth poses a significant risk to commit another violent offence and lifting the ban is necessary to protect the public ▪ When a young person is alleged to have committed a crime and is at large posing a threat to others, publication is necessary for apprehension, maximum publication duration is for five days Police and Discretionary Powers • YCJA instructs police to consider diversion o Formalized in s.6 of the YCJA o Pre-charge stage o Notification given when youth has met stipulations set out for them o Charges not laid • Crown can also divert youth o Youth can be diverted post-charge o Extrajudicial sanctions o Met the requirements of a community program, charges are withdrawn • Concerns? o Net widening – whether or not that actually leads to greater numbers of involvement Extrajudicial Measures • Key objective of the YCJA is to increase the use of effective and timely non-court responses to less serious offences by youth • Should be used in all cases where they would be adequate to hold the young person accountable • Presumed to be adequate for first-time non-violent offenders • May be used if previously dealt with using extrajudicial measures o 2012 amendment, requires police to keep a record of extrajudicial measures used • YCJA requires police to consider the use of extrajudicial measures before charging a young person • Includes o Taking no further action o Warnings–informal by police o Police Cautions–more formal warnings, police cautions may be in the form of a letter to the person and their parents, may involve having the young person and their parents appear at a police station to talk to a senior police officer o Crown Cautions–similar to police cautions, occur after the police refers the case to prosecutor, form of letter to person and their parents o Referrals –to community programs or agencies that can assist to preventing recidivism, recreation programs and counseling agencies o Extrajudicial Sanctions Extrajudicial Sanctions • Most formal type of extrajudicial measure • Pre-charge or post-charge stage • Used only if the young person admits responsibility and consents to be subjected to the sanction o Not guilty plea, simply accepting responsibility • Informed of what the sanction would be and opportunity to consult a lawyer prior to consenting to the sanction • Must be part of a formal extrajudicial sanctions program • If the young person fails to comply with the terms, the court case can proceed • Can only be used if the young person cannot adequately be dealt with by a warning, caution or referral Youth Courts • Youth cases that do end up going to court are handled in special youth courts • If a youth is found guilty of an offence, the youth court judge must determine an appropriate sentence Youth Sentencing • Two main objectives o Rehabilitation and reintegration o Protection of the public • Progressive o Graduated sanctions • Sentence disparity may still exist Youth Sentencing Options – COMMUNITY • Judicial reprimand o Verbal reprimand, often first-time offenders and minor offence, no criminal record • Absolute Discharge o Guilty, released, no criminal record • Conditional Discharge o Guilty, discharged with conditions, if adheres to the conditions then no criminal record • Fine o Not to exceed $1000, paid at time and under conditions court deems appropriate, ability to pay needs to be considered, fine option programs available • Restitution o Money, in kind, personal service as compensation, "for loss of or damage to property, or for loss of income or support” • Community Service Order o Max 240 hours, 12 months to complete, cannot interfere with school or work hours, commonly included as a condition of probation • Probation o Most frequently imposed, max 2 years, mandatory and additional conditions, breach = Criminal Code offence • Intensive Support and Supervision Order o Provincial decision, more intensive programming and assistance, greater surveillance and control than probation • Nonresidential Attendance Order o Period not to exceed 240 hours over 6 months Youth Sentencing Options – PROBATION • Majority of youth under supervision in the community are on probation -91% • Youth probation officers have many of the same responsibilities as adult probation officers o Smaller caseloads o Office, school, home visits • Risk needs/ assessment o Which youth require greater supervision, Intensive Support and Supervision Order o Criminogenic needs and how can we target those • Case management o Integrated Case management conferences ▪ Young offenders, parents/guardians, other support people ▪ Establish manageable goals/ benchmarks Youth Sentencing Options – CUSTODY AND COMMUNITY • Custody and Supervision Order o Community supervision is half as long as the period of custody, supervision and conditions, total time cannot exceed 2 years (except life imprisonment in which the term cannot exceed 3 years) • Custody and Conditional Supervision o Presumptive offences, total term cannot exceed 3 years from fate of committal • Deferral of Custody and Supervision o Order cannot exceed 6 months, excludes cases involving presumptive offences • Intensive Rehabilitative custody and Supervision order o First portion in the intensive rehabilitative custody, second portion under conditional supervision in the community Youth Sentencing Options – YOUTH RISK ASSESSMENTS • Focus on the RNR model • Youth level of service/case management inventory (YLS/CMI) o Variant of the LSI-R o Used to assess risk of recidivism, identify factors requiring intervention and develop a Community supervision plan o 42 Risk/Needs Factors o Potential gender issue? ▪ Target female offenders, match their needs with programs Youth Sentencing Options – ADULT SENTENCE • Prior to the YCJA, those 14 or older could be transferred to adult court under certain circumstances o If they were convicted in adult court, an adult sentence was imposed • YOA, 16 or 17 year old charged with murder, attempted, manslaughter, or aggravated assault, it was presumed they would be transferred to adult court and face an adult sentence o Not an automatic transfer, could persuade our tot let the case be heard in youth court • Under the YCJA, the youth court first determines guilt and then decides whether the youth will face an adult sentence • 2012 changes o 14 or older, charged with serious violent offence, prosecutor must consider applying to the youth court for an adult sentence o Court can impose and adult sentence only if ▪ The prosecution argues that the young person does not have diminished moral blameworthiness or culpability ▪ A young sentence would not be of sufficient length to hold someone responsible o Youth is placed in a youth facility, once they turn 18 they may be placed in an adult facility Profile of Youth Offenders • Number of cases making it to youth court have been declining since the YCJA o Slightly prior to the YCJA o 2014/2015, 8000 youth being supervised o 90% in the community • Since 2007/2008 youth held in pre-trial detention have outnumbered those held in sentenced custody • Approximately 60% of cases involve older youth (16-17) o Youth aged 12-13 were only 4% of youth admitted to correctional services • Non-violent offences make up 73% of youth court cases • Most likely to serve custodial sentence for property or violent offences • Just over ¾ of youth admitted to correctional services were male • Females less likely to be sentenced to custody o When they are, they serve shorter sentences Doing Time as Youth • Find imprisonment harder than adult offenders • Lack survival strategies • Pains of imprisonment o Violence o Loss of freedom o Anxiety due to lack/loss of family/social ties • Hegemonic masculinity: may be especially prevalent in youth facilities • Similarities in terms of the dynamics found in both adult and youth facilities Treatment Programs for Youth • Custodial treatment programs o Focus on fostering a sense of agency o Yet closed nature of institutions might have adverse consequences o Defer to authority figures and the structure of the institution o Faking it? Release and Re-entry • Requirement of community supervision • Informal support networks o Peer pressure o Family support Guest Lecture Saint Leonard’s community services London and Region (SLCS) • Dedicated to promoting positive change in all persons who are or could be in conflict with the law to realize their potential, contributing to a safer society • Youth an adults • Mental health and addiction • CK Clarke Centre – Not criminally responsible • Youth Programs Youth Criminal Justice Act • Replaced the Young Offenders Act in 2003 • Purpose: the YCJA is a legislative framework for a fairer and more effective youth justice system • The new act focused on reforms in these areas o Overuse of the occurs and incarceration in less serious cases o Disparity and unfairness in sentencing o Lack of effective reintegration of young people released form custody o The need to take into account the interests of victims • The purpose of youth sentences is to hold a young persons accountable through just sanctions that ensure meaningful consequences for them and promote their rehabilitation and reintegration • The creation of Diversion Programing • The creation of community sentencing • Number of youth in secure and open custody facilities has decreased – led to the closure of youth facilities (Blue water Youth Center) • Development of youth therapeutic rout • Overall lower number of youth in the Justice System • Increase focus on reintegration and increased community partnerships Restorative Justice • Who has been harmed? • How the harm can be addressed? • Who is held accountable for what happened? • Focus on three distinct participants o Person harmed o The harmed community o The young person • Restorative Justice Conferences enable those most directly affected to play an active role o Young persons o Parent/guardian o Harmed person and their support person o Affected community members o Broader community • Youth Committee is o An extrajudicial measure/sanction program established under the YCJA o A program where low risk offender are eligible for referral to a Youth Justice Committee o An alternative to formal court proceedings o Referred by the discretion of police (pre-charge-EJM) or Crown (post-charge-EJS) o A program which involved trained community members who meet with victims, young people (12-17) alleged to have committed offences • Eligible Offences o Class 1 – presumptively referred for diversion ▪ Theft, fraud, possession under $5000 o Class 2 – referred at Crown discretion ▪ Minor assaults o Class 3 – ineligible ▪ Assault causing bodily harm, any sexual assault ▪ Sexting, Cyberbullying Youth Pre-Charge Diversion (EJM) – Extrajudicial measures • Pre-Charge Diversion: delivered in partnership with London Police and St. Leonard’s Community services prior to the YCJA • The Extrajudicial Measures Program: is intended to divert young persons away from Formal Criminal Proceedings and into a Program and Rehabilitation • Designed for young persons who have ben involved in low-risk, non violent, minor offences o EJM allows the police to address the actions of young persons without utilizing the formal youth justice court system • Eligibility o 12-17 o Sufficient evidence to proceed with prosecution o Nature of current offence o History of offence o Previous Diversions o Acceptance of responsibility for the offence o Young persons are prepared to be accountable • Referral Process o Officer will complete a referral form – forward to SLCS o Youth is responsible for contacting SLCS within 7 days of signing and receiving the request for diversion application o SLCS will follow up if nobody contacts o Each youth will have an intake meeting with a justice worker Extrajudicial Sanctions Process • When youth is charged with an offence, appears in court • The crown attorney may feel that the youth is an appropriate candidate for the EJS Program • An application to the EJS Program is submitted and signed by both the Crown and Provincial Director • Forwarded then to SLCS • The justice worker meets with both the victim, if they choose to participate • Completed – charges withdrawn Benefits of EJM/EJS • Youth Justice committees are a proven effective response to youth crimes, as they hold youth directly accountable for their actions and its impact on individuals and community, while at the same time, giving youth an opportunity to make amends • The interests of both the victim and the young person are addressed • Reduced frustration and anger of those harmed Benefits of Victim Participation • A youth Justice Committee is more effective for the youth and the victim when they both participate in the process • A victim has the right to decline involvement • Increased chance of receiving meaningful restitution or reparation Struggles Youth Face • Incarceration • Trauma, abuse, neglect, • Homelessness • Gangs • Mental health issues • Peer Pressure • FASD diagnosis • Education • Unemployment • Family struggles Attendance Centre Program • Community based sentence under the YCJA • Run differently in different jurisdictions • In London – a condition added to a youth’s probation order o The youth to attend and actively participate in the Attendance Centre program for up to 240 hours for a max period of 6 months • Non-voluntary program • Addresses criminogenic risk factors identified by the probation officer (risk need assessment) • Focus is on the youth strengths, building therapeutic relationships and the youth’s goals • We meet the youth where they are at regarding services • Programs runs in the afternoons, evening and Saturdays Intensive Reintegration Service • Developed to assist youth exiting custody in a successful and smooth transition to the community • The program started as a pilot program in 2004 • Offered to youth serving youth disposition • A voluntary program • Services provided on a 1:1 basis in the community • Service is offered for the duration of the youth’s involvement in the youth justice system • Program focuses on criminogenic risk factors, the youth’s goals, strengths and immediate needs • Dedicated staff working with youth diagnosed with FASD Female Offenders • Growing number of women in CJS o Aboriginal women represent the fastest growing offender category under federal jurisdiction • Increases in correctional supervision greater for women than for men o In the last ten years, the number of women admitted to federal jurisdiction has increased almost 40% • Now account for close to 5% of the total offender population • Majority of women under correctional supervision are in the community • Women incarcerated in these early prisons were generally perceived to be sexual miscreants • Poor and racialized women (and those who are not feminine at all) were considered to be o Unredeemable or unfixable o Faced harsher sanctions and were given placement in maximum security o Fixing gender failures were focused on white rich women • 1813 Quaker social crusader Elizabeth Fry set the tone for gender segregated prisons o Learn the feminine way (proper feminine way) o Why was Elizabeth Fry originally criticized? ▪ Being a product of her upbringing, white middle class ▪ Focused on orienting females into a white middle class reform • Defining events in women’s corrections have all occurred in federal facilities • Little is known about women in provincial/territorial institutions Prison for Women (P4W) • Maximum security female only prison from 1934 to 2000 o Prior, women were held across the street in the men’s penitentiary in the female department o All women, regardless of security level, were housed here ▪ Less than 15% required surveillance and were a threat to public safety ▪ Most were not a threat to the public yet were housed in maximum security • At least 12 women killed themselves between 1977 and 1991 there o 8 of those women were indigenous • Seven commissioned reports on P4W were submitted to the federal government between 69 and 78 o Each of them recommended that the Prison for women be closed and smaller and more regional facilities develop in its place but it did not happen • During the 1980s many women sentenced to a federally term served their sentence in their home provinces under a Exchange of Services Agreement • In 1989 the federal government commissioned a task force to review the overall situation of female offenders • The Task Force on Federally Sentenced Women (TFFSW) o Joint venture between government agencies and national organizations including the Canadian Association of Elizabeth Fry Societies and the Native Women’s association of Canada o Published their final report, Creating choices in 1990 ▪ Driven by a women-centered approach ▪ Talked to 84% of all federally incarcerated females • Including those incarcerated at P4W and those in provincial institutions Creating Choices • Separate prison system be created for women • Centered on 5 key principles 1. Empowerment 2. Meaningful and responsible choices 3. Respect and dignity 4. Supportive environment 5. Shared responsibility • P4W should be closed • Small regional facilities (including an Aboriginal healing lodge) • Deputy commissioner for women 1996 The Raid at P4W • April 22, 1994, physical altercation between inmates and CO’s, women were placed in segregation and criminally charged • April 24, 1994, three other inmates caused a disruption, slashing, taking a hostage, and attempting suicide • April 25, 1994, an all male institutional emergency response team (IERT) stormed into the cells of inmates being held in segregation at the prison to conduct cell extractions and strip searched • The women were not believed, and when I said that I believed them, I was told id been conned (Kim Pate, Elisabeth Fry Societies) • CBC’s Fifth Estate aired an expose entitled “The Ultimate Response” 1995 o Showing the raid • Why was it so appalling that these actions had been carried out against female prisoners? o Previous research by the task force – found that 90% of Aboriginal women and 61% of other women, had been abused sexually and physically Arbour Commission • Justice Louise Arbour • Appointed to conduct an investigation into the events at the P4W and CSC’s management of those issues and events • Investigation o Role of IERT o Conduct of IERT o Confinement in administrative segregation o Reasonableness of treatment while in segregation o Duration of segregation • Published in April 1996 o Exhaustive and thorough report • Extremely critical of the actions undertaken by the IERT personnel and the warden, also the CSC response to the incident • April 1, 1996 the final report of the Commission to Investigate Certain events at the Prison for Women concluded that the IERT actions 1. Violated article 53 of the United Nation’s Standard Minimum Rules for the treatment of prisoners 2. Contravened articles 3 and 5 of the Universal Declaration and Human Rights 3. Were antithetical to Creating changes report • Use of force policy developed restricting the use of all male IERT teams • Male CO’s forbidden to be present when female inmates are being strip searched • Accelerated the closing of the P4W • The Kingston Prison for Women closed in July 2000 • Replaced with five smaller, regional facilities 1. Nova institution or women in Truro, Nova Scotia 2. Joliette Institution in Joliette, Quebec 3. Grand Valley institution for women in Kitchener, Ontario 4. Edmonton Institution for Women in Edmonton, Alberta 5. Okimaw Ochi Healing Lodge, in Maple Creek, Saskatchewan 6. BC – provincial Burnaby Correctional Centre for Women ▪ Exchange of Service Agreement Female Offenders and Their Crimes • Women on probation more likely to have committed a property offense • Women in prison more likely to have committed a drug or violent offence o Violence against spouses or partners • Often have greater needs in the areas of o Emotional stability o Marital and family relations o Academic/vocational skills o Employment • Focus on a gender-specific approach to treatment to address these needs o Enters on empowerment o Recognizes the broader systemic barriers facing women Classification of Female Offenders • Assessment instruments were developed using male offenders o Do not consider the different pathways to crime that female offenders experience • Over classification of female inmates • Addition of variables related specifically to women would increase the predictive power of the LSI-R and other risk assessments o Co-offending • If the spouse is involved in illegal activity – more likely that the woman would be involved Community Sentences • Generally do better on probation than males • Lower rates of reoffending • More challenging to supervise • Addressing the needs of single mothers and children • Gender-specific programs and services Incarceration • 15% of overall admissions to provincial/territorial systems • Higher proportion of community admissions than custody admissions o 30% versus 13% • Most federally sentenced women are classified as medium security (55%), minimum security (33%) and maximum security (12%) • More than half are serving a sentence of 2-4 years • More than 70% are mothers to children under the age of 18 • 68% report being sexually abused • 86% report being physically abused • Compared to male offenders, female offenders are o Twice as likely to have a serious mental health diagnosis o Twice as likely to be serving a sentence for drug-related offences o More likely to be serving a shorter sentence o More likely to be supporting dependents on the outside o Have a higher motivation for correctional intervention and potential for reintegration • Pains of imprisonment may be much more severe for female offenders o Separation from one’s children ▪ Varying levels of contact o Incarcerated in facilities far from their families o Strong impact on women who have experienced physical and emotional abuse Cross-Gender Staffing in Women’s Institutions • Men work at all levels of Canadian women’s institutions • Pros o Helps normalize daily institutional life o Provide positive relationships for women who might not have been treated with respect by males • Cons o Negative impact on female inmates who have a history of abuse by men o Increases risk of privacy violations and sexual misconduct • 1998, CSC appointed a Cross-Gender Monitor to conduct and independent review o Recommended that male Cos working in female institutions not be permitted to carry out security functions in living and segregation units, or to serve as members of cell-extraction teams Psychological, Health and Self-Injurious Behaviour • Derkzen et al. found that an overwhelming majority of female offenders could be diagnosed with a psychiatric disorder – 94% • 85% of the sample experienced diagnostic symptoms of more than one disorder o Posttraumatic stress disorder o Major Depressive Episodes o Antisocial Personality Disorder o Substance use disorder (80% of the sample had experienced a lifetime dependence on at least on substance) • SIB or self-harm is a means of coping with confinement o Deal with negative emotions and as a cry for help • Suicide o Risk is higher for women who are placed in segregation or spend longer periods in relative isolation from the general population • 2012 in depth study found that o CSC’s mental health strategy is focused on assessment rather than treatment o Mental health problems are treated as risks o CSC does not consider female’s history of abuse o Women with mental health problems are often over classified, resulting in their confinement in secure environments that also limits their access to programs and services Out of Control – The Fifth Estate • Probation – but then assaulted a postal worker and went to juvie • Therapeutic Quiet Time – TQ – the hole o Softening of a hard reality • No programs and few activities • The wrap – immobilize an inmate o In order to prevent them from harming themselves • 3 years in solitary confinement then moved to an adult prison • The response to her behaviour – tazing • She required much more professional help • Never had a comprehensive mental health assessment • 1 month sentence pushed to over 3 years o Moved to a federal facility • Federal facility had many programs focusing on women’s issues o She could not access these since she was put in segregation right away o Visited by a nurse, parole officer everyday o Denied toilet paper, mattress and tampons • 105 incidents of use of force – set a record o Because of this, the warden instructed guards to ignore her so keep the reports down for their public image • Transferred 17 times within a year • Laws against segregation indefinitely o Supposed to review it every 60 days but would just move her to another location • She was unresponsive and so they do no got inside because of the order o Go inside but do not touch her • Lose your job by helping her – job over someone’s life • Charges against the guards were dropped – the case is closed Mental Health Issues – The Case of Ashley Smith • Mandatory to hold an inquest whenever an inmate dies in custody in Ontario • Verdict handed down on December 19, 2013 • 104 recommendations o Most address mental health in institutions, particularly in regards to female inmates • Jury classified her death as a homicide o Crime of omission (criminal negligence causing death) o Charges later dismissed Release and Re-Entry After Prison • Harder times finding employment • Address the issues with their partner/spouse • Gender discrimination and increased stigma • Doubly deviant • Additional challenges for inmate mothers • Provincial offenders versus federal offenders Indigenous Offenders • Many Aboriginal people live on the margins of Canadian society • Residential School system o Widespread sexual victimization o Fractured families, destroyed cultures and values, and shredded the fabric of many First Nations communities • Racism and discrimination • Over-representation in the criminal justice system o Aboriginal people were 3 percent of the Canadian adult population ▪ 28% of admissions to federal custody, 26% to provincial/territorial custody o Overrepresentation was more pronounced for females than males ▪ 31% admissions to federal custody (23% males) ▪ 38% admissions to provincial/territorial custody (26% males) • Aboriginal Adult Admissions to Custody, By Province and Territory • Aboriginal Youth Offenders o Aboriginal youth represented 35% of admissions ▪ Yet of youth population aged 12-17, 7% only are Aboriginal ▪ Highlights again an overrepresentation ▪ Proportion of Aboriginal youth admissions to custody has grown over time • Female Aboriginal Offenders o Around 1 in 3 incarcerated women is Aboriginal o More over-represented in the federal correctional population than Aboriginal males o Nearly one-third have an identified mental health disability upon admission to federal custody o Over 75% report abusing drugs and alcohol o As a group, they tend to be over-classified ▪ Higher than appropriate security rating – medium or maximum • Federal aboriginal offenders more likely to be classified as a medium/maximum security risk • More often serving a sentence for a violent offence • Disproportionately designated as DO’s • Increase in the number of Aboriginal offenders entering custody with gang affiliations • Aboriginal population tends to be younger • More likely to be suffering from FASD (fetal alcohol spectrum disorder) • More likely to have served a previous youth and/or adult sentence Gladue Decision • First major reform and codification of sentencing principles was introduced in 1995 under Bill C-41 • 1996, section 718 was added into the Criminal Code o A court that imposes a sentence shall also take into consideration the following principles ▪ All available sanctions, other than imprisonment, that are reasonable in the circumstance 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 • 1996, section 718 • Altered the guidelines used by judges and provided specific provisions for the sentencing of Aboriginal offenders • This section allowed for information pertaining to an offender’s background and contextualized Aboriginal knowledge’s to enter the courtroom • Supreme Court of Canada ruled on the application and interpretation of this section in R. V. Gladue o Decision acknowledged that discrimination within the legal and criminal justice systems contributed to a crisis of over-incarceration o Not just a matter of Aboriginals being more criminal than non-Aboriginals o Also not just social disadvantage, but rather related to the complex legacy of colonialism • Decision specifically instructed judges to o Take judicial notice of the broad systemic and background factors affecting Aboriginal people, and the priority given Aboriginal cultures to a restorative approach to sentencing o Systemic and background factors include a range of items • The Gladue Factors o Substance Abuse (personally, immediate and extended family, community) o Poverty (child, adult, family, community) o Overt/Covert Racism (community, by family members, schools, strangers, workplace) o Family (quality of relationships, divorce, family involvement in crime, residential school attendance, abandonment) o Abuse (sexual, physical, emotional, spiritual) o Unemployment (low income, lack of employment opportunities) o Lack of educational opportunities o Dislocation from Aboriginal community o Group/community experiences of discrimination o Foster care or adoption (age, length of time, by non-Aboriginal family) • Made it the responsibility of the courts (Crown, defence and judiciary) to ensure that information specific to Aboriginal circumstances is collected and considered in sentencing decisions • R. V. Ipeelee, court is required to show how context matters, how it affects offending and how it potentially perpetuates conditions for recidivism o Supreme court provided additional clarification on the information that is to be collected and how it might affect assessments of a fit sentence o 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 education attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples o These matters, on their own, do not justify a different sentence for Aboriginal offenders o Rather than provide the necessary context for understanding and evaluation the case-specific information represented by counsel • Issues with Gladue Decision o Double-Edged Sword ▪ Appears progressive, but actually masks continuing forms of discrimination and colonialist practices o Lack of resources to prepare Gladue reports and the contextualized factors ▪ Lack of suitable community resources o Principles are at odds with legislation restricting judicial discretion (mandatory minimums and restric
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