Stephanie Whitecloud-Brass column

Over the course of the last few weeks, I have been boldly reminded of why I decided to become a lawyer.  In 2004, before I started law school, I remember going to provincial court and sitting in, just watching and paying attention to the morning proceedings.

I can’t remember the specific names of any of the accused or even the name of the presiding judge, but I do remember feeling rather empty and at a loss for words by the time I got up to leave.  I could not believe the number of aboriginal people that were being processed through what seemed like a criminal law assembly line.

Some of the accused appeared to care about what was happening with their matter, but others did not and it was the latter that both, saddened and frightened me.  The main question that I had for these individuals was, “What has made you not care or at least, appear to not care?”

I remembered that day, or at least, the thoughts and emotions that went along with it.  So, when I sat down in an introductory class to criminal law, it was somewhat reassuring to learn that the Criminal Code of Canada had been reformed in 1996 to include various sentencing principles, including a subsection which obligates a court to consider the unique circumstances of an aboriginal offender.  It was not until 1999 that the Supreme Court of Canada provided the foundation for the interpretation of that subsection [718.2(e)] in their decision regarding, R. v. Gladue. ([1999]  (S.C.R. 688.)

Jamie Tanis Gladue was a Metis woman charged with second-degree murder after stabbing her common-law husband to death during a heated argument. Gladue pleaded guilty to manslaughter and despite not having a previous record was handed a maximum three-year sentence. Her lawyer challenged Section 718.2(e), as the court did not consider Gladue’s background.

Section 718.2(e) states 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.”

The purpose of this particular amendment was to specifically address the concern of aboriginal over-representation in the Canadian criminal justice system.  These unique circumstances can include the make-up of an individual’s family, who they have out there for them as support, the effects and impacts that the Indian residential school system may have had their upbringing, the effects and impacts of being dislocated from one’s community due to child welfare and/or adoption, loss of identity, loss of culture, lack of formal educational opportunities, unemployment, poverty, abuse, substance abuse, addiction(s), history of family members who have had experience with the criminal justice system, being a witness to violence, etc.  This list is certainly not exhaustive, but it does cover a lot of different areas and experiences, as opposed to just seeing someone’s name, birthdate and criminal record.

And perhaps that is the issue; whether the time, energy and proper skill have been applied to each aboriginal offender in an effort to unpack all of these areas so that an appropriate picture can be painted for the presiding judge in a report designed for a bail hearing, sentencing, etc.

Over the last few weeks, I spent a lot of time speaking with a client of mine and getting to know them in this sense.  At certain points, I had even spoken to my client’s spouse, parent and a former employer in an effort to gain a bit of their perspectives on both, my client and the matter at hand.

As time consuming as it was, I had something visceral to present to the judge – something meaningful and not just my client’s criminal record.  My client is so much more than that record and I believe that when I presented this information in Court, the judge truly “saw” my client for the individual that they are.  I’m not even sure if my client realized it at the beginning, but I did explain how their role in this process was just as important as mine, and the judge’s.

Clients need to be aware of what is going on around them and that leads to the second question that I had for individuals that day in provincial court all those years ago, “Do you fully understand what is happening right now?”

Over the years, I have had a few clients who have indicated that they would just like to get their matter over and done with as soon as possible without fully understanding the impact this would have on them in the future, should this not be the end of their dealings with the criminal justice system. Perhaps this was the attitude of those people I remember at court more than a decade ago.

As legal counsel, clients put a lot of trust in you but they need to understand that they are the true decision makers when it comes to their defence.  My role is to provide them with as much information as possible so that they can make the proper legal decision(s) for themselves.  They simply instruct me on how to proceed on their behalf and I conduct myself accordingly.  My role is certainly not to be condescending and impatient; I view that as just adding to the damage and trauma that they may have already experienced in their lifetime.

Clients need to know that they have some control in any legal process, but with that control comes responsibility.  Responsibility lies within their history, their make-up and all of the other factors that played a role in shaping who they became.  There is responsibility in taking ownership of that and addressing it in a sensitive and appropriate manner so as to not inflict more distrust or trauma.

There is a way to do this and as the title of my column suggests, approximately 16 years later, are we where we should be?  I am no statistician however, I am not sure that I need to be when I am seeing basically the same thing in the various provincial courts I attend now, as I did in 2004.  I am certainly not one to criticize, as criminal defence is just a small subset of law that I practice, but given the sense of satisfaction that I have felt over the past few weeks, I think it’s evident that I need to do more on my end when it comes to ensuring that the stories of our people are taken into appropriate consideration as their matter navigates through the criminal justice system.

Stephanie Whitecloud-Brass is a member of the Standing Buffalo Dakota Nation. You can reach Stephanie at Sunchild Law, her email address is: stephanie@sunchildlaw.com

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