Implicating the system

Indigenous women continue to be overrepresented in Canadian prisons; research demonstrates how their overincarceration and often extensive experiences of victimization result from the ongoing processes of colonization By examining the text of judgments drawn from a review of legal decisions, Implicating the System: Judicial Discourses in the Sentencing of Indigenous Women explores how judges navigate these issues in sentencing Through the lenses of feminist theory and Gladue analysis, Kaiser-Derrick foregrounds decisions that effectively integrate gendered understandings of Indigenous women’s victimization histories She contends that judicial use of the victimization-criminalization continuum deepens Gladue analysis and furthers the objective of reaching alternatives to incarceration Kaiser-Derrick discusses how judicial discourses about victimization intersect with those about rehabilitation and treatment, and suggests associated problems, particularly where prison is characterized as a place of healing Finally, she shows how recent incursions into judicial discretion, through legislative changes to the conditional sentencing regime that restrict the availability of alternatives to incarceration, are particularly concerning for Indigenous women in the system “Elspeth Kaiser-Derrick’s work is an important read in light of the needs of truth and reconciliation Her exploration of judicial discourses in the sentencing of Indigenous women reveal the multiple systemic failures of Canada’s justice system.” Elspeth Kaiser-Derrick was called to the Bar in British Columbia after articling at a criminal defence firm and is currently a PhD candidate at the Peter A Allard School of Law at the University of British Columbia ISBN 978-0-88755-828-3 KAISER-DERRICK – RICHARD JOCHELSON, ASSOCIATE PROFESSOR IN THE FACULTY OF LAW, UNIVERSITY OF MANITOBA I M P L I C AT I N G T H E S Y S T E M LAW / GENDER / INDIGENOUS STUDIES 90000 780887 558283 2018-UMP-IMPLICATING-COVER-FULL-FINAL-REV.indd UOFMPRES S.C A $34.95 C AD / $34.95 USD 2019-01-29 8:38 PM I M P L I C AT I N G THE SYSTEM I M P L I C AT I N G THE SYSTEM JUDICIAL DISCOURSES IN THE SENTENCING OF IN DIGE NOUS WOM E N ELSPETH KAISER-DERRICK Implicating the System: Judicial Discourses in the Sentencing of Indigenous Women © Elspeth Kaiser-Derrick 2019 23 22 21 20 19 All rights reserved No part of this publication may be reproduced or transmitted in any form or by any means, or stored in a database and retrieval system in Canada, without the prior written permission of the publisher, or, in the case of photocopying or any other reprographic copying, a licence from Access Copyright, www.accesscopyright.ca, 1-800-893-5777 University of Manitoba Press Winnipeg, Manitoba, Canada Treaty Territory uofmpress.ca Cataloguing data available from Library and Archives Canada isbn 978-0-88755-828-3 (paper) isbn 978-0-88755-555-8 (pdf) isbn 978-0-88755-553-4 (epub) Cover and interior design by Jess Koroscil Cover image: Linocut by Elspeth Kaiser-Derrick Printed in Canada This book has been published with the help of a grant from the Federation for the Humanities and Social Sciences, through the Awards to Scholarly Publications Program, using funds provided by the Social Sciences and Humanities Research Council of Canada The University of Manitoba Press acknowledges the financial support for its publication program provided by the Government of Canada through the Canada Book Fund, the Canada Council for the Arts, the Manitoba Department of Sport, Culture, and Heritage, the Manitoba Arts Council, and the Manitoba Book Publishing Tax Credit CONTENTS INTRODUCTION · LISTENING TO WHAT THE CRIMINAL JUSTICE SYSTEM HEARS CHAPTER · 40 PATHWAYS THROUGH FEMINIST THEORIES, INTO THE SYSTEM CHAPTER · 87 SENTENCING TRAUMA: GL ADUE AND THE CONTINUUM, JUDICIAL NAVIGATIONS C H A P T E R · 181 INCARCERATION WOUNDS: JUDICIAL DISCOURSES ABOUT HEALING CONCLUSION · 284 REFRACTED THROUGH INSTITUTIONAL LENSES A C K N O W L E D G E M E N T S · 313 N OT E S · 315 BIBLIOGRAPHY · 373 INDEX · 399 INTRODUCTION LISTENING T O W H AT T H E CRIMINAL JUSTICE SYSTEM HEARS While obtaining my law degree at the University of Alberta, I worked extensively with the clinical program Student Legal Services of Edmonton In one of my capacities there, for the Legal Education and Reform Project, I regularly attended outreaches at Kindred House Kindred House is a drop-in centre for street sex workers (women, including cisand transgender women, over eighteen years old) It is grounded in the philosophy of harm reduction, which in this context means “meet[ing] the clients where they’re at.”1 Kindred House offers a safe place for its clients to take respite from the stress and exposure of the streets, supplies various health and other resources, and provides a sense of community to alleviate some of the isolation instilled by poverty and marginalization I would sit with a fellow law student during these outreaches, sometimes offering legal information and pamphlets, periodically opening files for women who lacked other access to legal representation, intermittently talking to women who just wanted someone to talk to, and constantly aware that this space belonged to those who have been pushed to the periphery of public spaces and services IMPLICATING THE SYSTEM It was apparent that these women lived very hard lives, with very little support and resources, and many had been criminalized I was appalled that the overwhelming majority of clients were Indigenous.2 Program coordinator Shawna Hohendorff reported to a parliamentary subcommittee on sex work that of her clients at Kindred House, roughly 80 percent are Indigenous.3 This overrepresentation was also evident in separate support outreaches for street sex workers that I volunteered for with the PAR Foundation and Crossroads,4 conducted in large outfitted vans in Edmonton It was evident that this overrepresentation is intergenerational; for example, during one outreach, an Indigenous mother and daughter approached the van together to access resources Referring to the overrepresentation of Indigenous peoples in the criminal justice system, the Royal Commission on Aboriginal Peoples (RCAP) concluded in 1996 that “over-representation is linked directly to the particular and distinctive historical and political processes that have made Aboriginal people poor beyond poverty,”5 in a deeply entrenched “process of colonization.”6 Hohendorff commented to the parliamentary subcommittee that her clients felt unheard and alienated from institutions with power, as if “their particular life stories” did not matter.7 She explained, “I don’t know all of the answers, and I think it’s a complex set of problems,” but what “we need to is to listen so that they are part of our community, not separate.”8 Similarly, in its review of the criminal justice system released in 2018, Department of Justice of Canada reports from consultations with various stakeholders (including lawyers, judges, organizations supporting criminalized persons, and Indigenous leaders and communities) that women in the system (particularly women appearing in capacities as victims and also Indigenous women generally) “often feel their experiences are not believed and have therefore lost confidence in the justice system.”9 Participants in the Department of Justice Canada review also point to insufficient information about “specific gendered experiences” of women in the system, and that “data collection through a gendered lens” is needed, adding that Indigenous women must have access to “approaches that consider the historical and oppressive contexts”10 that are engaged In this book, I strive to demonstrate the importance of Hohendorff ’s insight, and these findings by the Department of Justice Canada, by exploring the limited histories of LISTENING TO WHAT THE CRIMINAL JUSTICE SYSTEM HEARS criminalized Indigenous women as these narratives appear in their sentencing judgments, such as those presented through pre-sentence reports (PSRs) and Gladue reports, and how judges respond Often, these narratives reveal layered experiences of victimization, including sustained victimizations (frequently occurring throughout these women’s lives) and diverse forms of victimization (often involving violence, such as physical and sexual victimization, but also other types of victimization, including emotional abuse, neglect, and substance abuse, and systemic, state-based victimization) This prevalence of victimization (and state oppression) makes the interrelationship between the victimization and criminalization of Indigenous women central to my book Indeed, participants in the criminal justice review told the Department of Justice Canada that the government should legislatively require various actors within the system, including judges, “to take into account the underlying factors contributing to offending and victimization.”11 My focus on sentencing judgments does not go far enough to respond to Hohendorff ’s suggestion; it remains necessary for legal and policy-based work to engage and incorporate the actual voices and directives of Indigenous women themselves Nonetheless, the presentation of criminalized Indigenous women’s histories to the courts is one of the few ways that their lives might be “listened to” in the criminal justice system, and it impacts how the system responds Sherene H Razack suggests “storytelling in law” for its narrativebased “potential as a tool for social change,” with its orientation toward “putting the context back into law.”12 The “stories” examined in this book are those written by, and for the purposes of, the criminal justice system, about the Indigenous women ensnared by that system Razack observes that Indigenous women prisoners query whether their “stories of oppression are even ‘translatable’ for the court’s benefit.”13 I am interested in what information the sentencing judge hears, and how this influences sanctions The context in which sentencing judges learn about the criminalized Indigenous women appearing before them includes the legislative requirement that they consider the unique circumstances of Indigenous peoples and reduce reliance on incarceration—s 718.2(e)14 of the Criminal Code—and the direction by the Supreme Court of Canada (SCC) in R v Gladue and R v Ipeelee establishing a judicial framework for IMPLICATING THE SYSTEM O’Neil, John “Editorial: Aboriginal Health Governance.” Journal of Aboriginal Health 1, no (2004): 4–5 Paradies, Yin C “Beyond Black and White: Essentialism, Hybridity and Indigeneity.” Journal of Sociology 42, no (2006): 355–67 Parkes, Debra, and Kim Pate “Time for Accountability: Effective Oversight of Women’s Prisons.” Canadian Journal of Criminology and Criminal Justice 48, no (2006): 251–85 Pate, Kim “Interview: Kim Pate” by Hana Gartner CBC’s The Fifth Estate, 26 November 2010 http://www.cbc.ca/fifth/blog/interview-kim-pate ——— “Advocacy, Activism and Social Change for Women in Prison.” Canadian Woman Studies 25, nos 3, (Summer 2006): 81–84 ——— “Lecture on Mental Health and Sentencing.” Lecture delivered to the Canadian Chapter of the International Association of Women Judges at the Judging Women: Aging, Mental Health and Culture conference held by the National Judicial Institute and the Faculty of Law, University of British Columbia at the Fairmont Pacific Rim Hotel, Vancouver, 11 May 2011 Peternelj-Taylor, Cindy A “Conceptualizing Nursing Research with Offenders: Another Look at Vulnerability.” International Journal of Law and Psychiatry 28, no (2004): 348–59 Player, Elaine “The Reduction of Women’s Imprisonment in England and Wales: Will the Reform of Short Prison Sentences Help?” Punishment and Society 7, no (2005): 419–39 Poister Tusher, Chantal, and Sarah L Cook “Comparing Revictimization of Two Groups of Marginalized Women.” Journal of Interpersonal Violence 25, no 10 (2010): 1893–1911 Pollack, Shoshana “‘You Can’t Have It Both Ways’: Punishment and Treatment of Imprisoned Women.” Journal of Progressive Human Services 20, no (2009): 112–28 ——— “‘I’m Just Not Good in Relationships’: Victimization Discourses and the Gendered Regulation of Criminalized Women.” Feminist Criminology 2, no (2007): 158–74 ——— “Taming the Shrew: Regulating Prisoners through Women-Centered Mental Health Programming.” Critical Criminology 13, no (2005): 71–87 Pollock, Joycelyn M., and Sareta M Davis “The Continuing Myth of the Violent Female Offender.” Criminal Justice Review 30, no (2005): 5–29 Poole, Nancy “Integrating Trauma with Addiction Research and Treatment.” In Transforming Addiction: Gender, Trauma, Transdisciplinarity, edited by Lorraine Greaves, Nancy Poole, and Ellexis Boyle, 36–49 New York: Routledge, 2015 Presser, Lois “The Narratives of Offenders.” Theoretical Criminology 13, no (2009): 177–200 394 BIBLIOGRAPHY Quigley, Tim “Gladue Reports: Some Issues and Proposals.” (2016) Unpublished, copy on file with author Raeder, Myrna S “Domestic Violence in Federal Court: Abused Women as Victims, Survivors, and Offenders.” Federal Sentencing Reporter 19, no (2006): 91–129 Ralston, Benjamin, and Christine Goodwin “R v Drysdale: A Gold Standard for the Implementation of R v Gladue.” Criminal Reports 33, 7th (2017): 114–24 Razack, Sherene H “Gendered Racial Violence and Spacialized Justice: The Murder of Pamela George.” In Race, Space, and the Law: Unmapping a White Settler Society, edited by Sherene H Razack, 121–56 Toronto: Between the Lines, 2002 ——— Looking White People in the Eye: Gender, Race, and Culture in Courtrooms and Classrooms Toronto: University of Toronto Press, 1998 Roach, Kent “Changing Punishment at the Turn of the Century: Restorative Justice on the Rise.” Canadian Journal of Criminology 42, no (2000): 249–80 Roberts, Julian V., and Thomas Gabor “Living in the Shadow of Prison: Lessons from the Canadian Experience in Decarceration.” British Journal of Criminology 44, no (2004): 92–112 Ruby, Clayton C., Gerald J Chan, and Nader R Hasan Sentencing 8th ed Markham: LexisNexis Canada, 2012 Rumgay, Judith “Scripts for Safer Survival: Pathways Out of Female Crime.” The Howard Journal of Criminal Justice 43, no (2004): 405–19 Rutherford, Kate “Attawapiskat Declares State of Emergency over Spate of Suicide Attempts.” CBC, April 2016 http://www.cbc.ca/news/canada/ sudbury/attawapiskat-suicide-first-nations-emergency-1.3528747 Sapers, Howard “Mental Health Challenges in Federal Corrections.” Lecture delivered to the North Shore Schizophrenia Society at West Vancouver Memorial Library, November 2011 https://www.youtube.com/ watch?v=oBWmv07HRYU Scott, James T.D “Reforming Saskatchewan’s Biased Sentencing Regime.” Updated version of paper delivered at Legal Aid Saskatchewan’s Annual Conference, September 2014 Unpublished Archived at http://www.spmlaw ca/scdla/JimScott_sentencing_bias_2014.pdf Shantz, Laura, Jennifer M Kilty, and Sylvie Frigon “Echoes of Imprisonment: Women’s Experiences of ‘successful (Re)integration.’” Canadian Journal of Law and Society 24, no (2009): 85–106 Shaw, Margaret “Women, Violence and Disorder in Prisons.” In An Ideal Prison? Critical Essays on Women’s Imprisonment in Canada, edited by Kelly HannahMoffat and Margaret Shaw, 61–70 Halifax: Fernwood Publishing, 2000 395 IMPLICATING THE SYSTEM Sheehy, Elizabeth Defending Battered Women on Trial: Lessons from the Transcripts Vancouver: University of British Columbia Press, 2014 ——— “Defending Battered Women on Trial: ‘Not a Battered Woman’: Jamie Gladue.” Lecture delivered at the Faculty of Law, University of British Columbia, Vancouver, April 2011 ——— “Misogyny Is Deadly: Inequality Makes Women More Vulnerable to Being Killed.” Canadian Centre for Policy Alternatives Monitor 17, no (2010): 18 ——— “Advancing Social Inclusion: The Implications for Criminal Law and Policy.” Canadian Journal of Criminology and Criminal Justice 46, no (2004): 73–95 Simon, Jonathan “The Vicissitudes of Law’s Violence.” In Law, Violence, and the Possibility of Justice, edited by Austin Sarat, 17–48 Princeton: Princeton University Press, 2001 Smith, Andrea “Native American Feminism, Sovereignty and Social Change.” In Making Space for Indigenous Feminism, edited by Joyce Audry Green, 93–107 Black Point, NS: Fernwood Publishing, 2007 Smith, Andrea, and Luana Ross “Introduction: Native Women and State Violence.” Social Justice 31, no (2004): 1–7 St Denis, Verna “Feminism Is for Everybody: Aboriginal Women, Feminism and Diversity.” In Making Space for Indigenous Feminism, edited by Joyce Audry Green, 33–52 Black Point, NS: Fernwood Publishing, 2007 Stastna, Kazi “Shacks and Slop Pails: Infrastructure Crisis on Native Reserves.” CBC, 26 November 2011 http://www.cbc.ca/news/canada/ story/2011/11/24/f-first- nations-infrastructure.html Sugar, Fran, and Lana Fox “Nistum Peyako Séht’wawin Iskwewak: Breaking Chains.” Canadian Journal of Women and the Law 3, no (1989–90): 465–82 Tasker, John Paul “Confusion Reigns over Number of Missing, Murdered Indigenous Women.” CBC, 16 February 2016 http://www.cbc.ca/news/ politics/mmiw-4000- hajdu-1.3450237 ——— “Ottawa Announces $800M Settlement with Indigenous Survivors of Sixties Scoop.” CBC, October 2017 http://www.cbc.ca/news/politics/ ottawa- settle-60s-scoop-survivors-1.4342462 “Tories Announce $155.5M Prison Expansion.” CBC, October 2010 http://www.cbc.ca/news/politics/story/2010/10/06/toews-prisonconstruction.html Tuhiwai Smith, Linda Decolonizing Methodologies: Research and Indigenous Peoples London: Zed Books Ltd, 2008 Turnbull, Sarah, and Kelly Hannah-Moffat “Under These Conditions: Gender, Parole and the Governance of Reintegration.” British Journal of Criminology 49, no (2009): 532–51 396 BIBLIOGRAPHY Tyagi, Smita Vir “Victimization, Adversity and Survival in the Lives of Women Offenders: Implications for Social Policy and Correctional Practice.” Canadian Woman Studies 25, nos 1, (Winter 2006): 133–38 Vowel, Chelsea Indigenous Writes: A Guide to First Nations, Métis, and Inuit Issues in Canada Winnipeg: HighWater Press, 2016 Welsh, Andrew, and James R.P Ogloff “Progressive Reforms or Maintaining the Status Quo?: An Empirical Evaluation of the Judicial Consideration of Aboriginal Status in Sentencing Decisions.” Canadian Journal of Criminology and Criminal Justice 50, no (2008): 491–517 Williams, Toni “Intersectionality Analysis in the Sentencing of Aboriginal Women in Canada: What Difference Does It Make?” In Intersectionality and Beyond: Law, Power and the Politics of Location, edited by Emily Grabham et al., 79–104 New York: Routledge-Cavendish, 2009 ——— “Punishing Women: The Promise and Perils of Contextualized Sentencing for Aboriginal Women in Canada.” Cleveland State Law Review 55 (2007): 269–87 Zaitzow, Barbara H “Pastel Fascism: Reflections of Social Control Techniques Used with Women in Prison.” Women’s Studies Quarterly 32, nos 3, (2004): 33–48 Zehr, Howard The Little Book of Restorative Justice Intercourse, PA: Good Books, 2002 397 INDEX A Aboriginal Justice Inquiry (The Public Inquiry into the Administration of Justice and Aboriginal People of Manitoba), 40, 76, 107, 112, 243, 286, 306 Abraham, R v., 265, 280 abstinence conditions, 263–70 agency: cases in which it supersedes Gladue analysis, 154–57; cases in which judges decontextualize and individualize histories, 192–205; in R v Collins, 156; in R v Gregoire, 120, 121; in sentence research cases, 99–101; and victimizationcriminalization continuum, 45–47, 51–52, 128 Aisaican, R v., 230, 234–35, 310 Aitken, Justice Catherine D., 125–26, 134, 170–71 Allen, Judge Lawrence, 90, 113 Anderson, Judge L G., 95–96, 192, 264 appellate court influence, 17, 27, 127, 294 Arcand (2014), R v., 113, 221, 257–58, 303 Arcand (2010), R v., 18–19 Arnold-Bailey, Justice Elizabeth A., 136 Arnot, Judge David, 208–10, 211–12 Atwood, Judge Del W., 177–78, 297 Audy, R v., 161–65, 300–301 Ayotte, Judge P., 136, 179, 221–22, 302–3 B Baird, Justice Robin A M., 135 Ball, Justice Kenneth W., 125, 138–39, 277 Barnett, Judge Cunliffe, 92, 220–21 Batisse, R v., 92 battered woman syndrome, 93, 106 Bauman, Chief Justice Robert James, 258 Bayliff, Judge Elizabeth L., 198–202, 205, 292 Bennett, Judge Marion Buller, 231–33, 301 Bill C-9, 32–34, 35–36, 299, 303–5 Bill C-10, 32–34, 36, 299, 303–5 Bishop, Justice Peter T., 89–90, 134–35, 246 Bluebell, R v., 128, 151–54 Bonin, Judge Normand, 93, 203–5, 206 Bouchard, R v., 113, 263 Bourke, R v., 113–14, 174, 262, 265 breaching conditions, 198, 222, 262–70 IMPLICATING THE SYSTEM Brecknell, Judge Michael J., 127, 135, 137, 220, 243 Brertton (Destiny Fields), R v., 223–24 Brooks, Judge Adrian F., 112, 170, 250–51, 260, 262 Butler, Justice G Bruce, 114, 126, 169, 256–57, 298 C Cadieux, Judge Gilles, 207–8 Canadian Association of Elizabeth Fry Societies (CAEFS), 109–10, 183, 193, 204, 308 Canadian Charter of Rights and Freedoms, 300 Carter (2014), R v., 274–75 C.G.O., R v., 231–33 Chabot, Judge Lucille, 223 Chamakese, R v., 171, 277 Char, R v., 185, 198–202, 205, 292 Chartier, R v., 90, 184–85, 191–92 Chiasson, Justice Edward C., 301 child welfare system: 49; as colonization, 79; as continuation of residential schools, 76–77; Indigenous children within, 69–70; Indigenous women’s fear of having their children removed into, 241–43; involvement in sentence research cases, 94, 95– 96, 101; in R v Char, 199; in R v Gregoire, 120; in R v Pawis, 123; and Sisters in Spirit, 70, 74 Chouinard, R v., 92, 93, 101–3, 219–20 Collins, R v., 128, 154–57 colonization: ability to accommodate decolonizing initiatives, 79–81; and definitions of violence against women, 13–14; forces of, 6–8; history of, 63–70; how child welfare replaced residential schools in, 76–77; how it explains and propels criminalization, 81–82; by institutions, 79; and internalization of violence, 400 107–8; justice system’s need to interrogate itself on, 296–97, 298; ongoing through criminalization, 71–72; prison’s similarity to, 237, 240; referred to in R v Ipeelee, 25, 28; role played by prisons in, 76; and violence against Indigenous women, 56–57 See also residential schools community resources, 219–20, 223–29, 230–33, 309–10 community sentences, 22–24, 160, 187, 209–10, 219–20 conditional sentences: breaching of, 262–70; cases in which Gladue leads to, 147–49, 230–33, 249; and creative solutions to cases, 300, 301; effect of Bills C-9 and C-10 on, 32–34, 299, 303–5; explanation of, 29–32; factors concerning, 181–82; importance of within provincial level sanctions, 30–31; inhibited by lack of community services, 223– 29; made possible by community resources, 230–33; motherhood as mitigating factor regarding, 245–55; to offset the harm done by prisons, 221–22; need for, alongside further alternative, non-carceral sanctions, 285–86; in R v Audy, 161–62; in R v Chouinard, 219–20; in R v Diamond, 204; in R v Kendi, 196, 198; in R v Redies, 220–21; recidivism rates for, 270–74; ordered for longer periods than prison sentences, 30, 260–62 Connors, R v., 279–80, 299 Coombs, R v., 266 Cooper, Justice S., 166–69, 235 Correctional Service of Canada (CSC), 182–83, 206, 216, 238, 288–89 Cozens, Chief Judge Michael: in R v Tizya, 249; in R v Elias, 173; INDEX in R v Johnson, 147–49, 246; in R v Morgan, 90–91; in R v Samson, 133, 258; and in R v Rodrigue, 169, 211 criminalization: as strategy, and how to understand this, 77, 78, 79; as manifestation of colonization, 81–82; as ongoing through colonization, 71–72; motherhood as connected to, 245; overrepresentation of Indigenous women, See also victimization– criminalization continuum Croll, Justice Bonnie L., 252–53 C.T., R v., 243 D Daunt, Judge Felicia M A L., 193, 221, 257–58, 303 Dawson, Justice C L., 214–15 decolonization, 39, 80–81, 257, 259, 307 Dennill, R v., 93, 99–101, 179–80 Dennis, R v., 125 Devine, Judge Cynthia A., 212–14 Dialectic Behaviour Therapy (DBT), 279 Diamond, R v., 185, 202–5, 205–6, 246, 288 Dickson, R v., 133, 292–93 DiGiuseppe, Justice Dino, 113, 114, 117–19, 189–90, 263 dispersed punishment, 259 E Elias (2001), R v., 262, 264–65, 308 Elias (2009), R v., 173 Elliott, R v., 112, 170, 250–51, 260, 262 Evaloardjuk, R v., 173 F Faulkner, Judge John, 114–17, 278–79 feminism, 42–46, 50–51, 85, 172, 213, 218 Feminist Alliance for International Action, 58 Fineday, R v., 186–87 First Charger, R v., 90, 134 Firth, R v., 90, 250, 270–71, 277–78 Florence (2013), R v., 139, 172–73 Foisy, Justice René, 110 Fraser, Judge Bruce R., 178 G Gabrielson, Justice N.G., 125, 170, 171, 255–56 Gambler, R v., 236 George, Justice Jonathon C., 94–95, 132, 175, 178, 299–300, 309 George, R v., 93, 94–95, 245, 296, 299–300 Gerein, Justice W.F., 177 Gladue, R v., and Gladue factors/ analysis: accessibility for criminalized Indigenous women, 308; cases in which agency supersedes, 154–57; cases in which aggravating factors are foregrounded instead, 140–47; cases in which related context for sentencing is explained, 156–57; cases in which motherhood is more persuasive than, 252; cases in which their impact is implicit, 173–75; cases in which they are not directly cited, 116, 196, 226, 228; cases in which they are wrongly believed to not apply to serious offenses, 175–77; cases in which they converge with victimizationcriminalization continuum, 157–71; cases in which they 01 IMPLICATING THE SYSTEM have little impact, 173, 185, 200, 201, 203; cases where they contribute to conditional sentence orders, 230–33, 249; critical positioning of sentencing judges regarding, 290–93; effect of appellate courts on, 27, 127, 294; erasure of violence against Jamie Gladue, 63; erroneously seeking causal link regarding, 25, 124–28, 153–54; explaining and fleshing out s 718.2(e), 21–24; failure to reduce Indigenous overincarceration, 25; government regression on, 72–75; impact of breaches of conditions regarding goals of, 264; involvement in sentence research cases, 98–99; judicial comments about regarding next Indigenous generation, 257; judicial references to as mere vehicle for sentence reduction, 178–79; lack of gendered understanding of violence, 63; overemphasis on parity regarding for serious offences, 25–26, 177–78, 207, 211–12; overlap and difference in focus from victimization-criminalization continuum, 87–88, 128–29, 163, 171–73, 183–84; regarding abstinence conditions, 269; risk assessment in sentencing, 82–86; and used in correctional decision making, 288–89 See also Gladue reports and Ipeelee, R v Gladue reports: cases in which they are inadequate or unavailable, 132–39; cases in which they or related PSR information are waived, 134–36; as differentiated from PSRs, 129–32; inadequacy of funding for, 131–32, 137 See also pre-sentence reports (PSRs) Good, R v., 114–17, 278–79 402 Goodridge, Justice William H., 114, 119–21 Gordon, Justice Robbie D., 92 Gorin, Judge Robert D., 113–14, 174, 263 Gower, Justice Leigh F., 113, 237–38 Green, Judge R., 230– 31, 236, 265, 267 Gregoire, R v., 114, 119–21 Gunn, Justice Ellen J., 246–47 H Hanley, R v., 110, 136 Hansen, R v., 114, 126, 169, 256–57, 298 Harapiak, Judge Christine, 190–91 Harris, Justice David, 254–55, 263, 290–91 Heinrichs, Judge Robert, 265, 280 Henderson, Justice John T., 239–40 Hicks, Judge Michael B., 235–36 Higinbotham, Judge Robert, 133–34, 222, 301, 302 Hill, R v., 254, 263, 290–91 Hill, Justice S Casey, 138, 234 Hinds, Judge M.J., 230, 234–35, 310 Hohendorff, Shawna, 2, 88–89, 284 Holmes, Justice Heather J., 223–24 Huculuk, Judge Bria, 103–7, 108 I imprisonment See prisons Indian Act, 8, 68–69 Indigenous communities, 296, 305–7 individualized v contextualized thinking, 169–70 institutionalization, 75–76, 79 intersectionality, 50–51, 61–62, 75, 82 intimate partner violence, 41 INDEX Ipeelee, R v.: bolsters Gladue, 24–28; call/need for more innovative sentencing, 152–53, 293–95; and clarification against seeking causal link, 25, 124–28, 150; on constrained circumstances, 191; on Gladue providing context for sentencing, 156; on Gladue’s applicability to all cases, 176; on importance of sentencing judges, 290, 291–92; makes clear Gladue applies to serious offenses, 116–17, 153; and judicial misapprehension regarding serious offenses, 25–26, 119, 177–78, 207, 211–12; on necessity of judicial notice of systemic factors, 132–33; on rehabilitation, 181; and on waivers of Gladue reports or related PSR information, 134 Isaac, R v., 230–31, 261, 265, 267 J Jackson, Justice Georgina, 216 Jankovic, R v., 128, 149–51 Johnson (2013), R v., 113, 236–38 Johnson (2011), R v., 147–49, 246 Johnson, R v., 128, 147–49, 236–37 justice system: ability to promote social change of, 36–39; amendments from 1996 which codified sentencing, 15–16; effect of Bills C-9 and C-10 on judicial creativity, 35, 299, 303–5; how judges have felt constrained by, 299–303; how sentencing process is affected by risk assessment, 82–86; implications of victimization for, 56; importance of sentencing judges in reducing incarceration, 289–93; Indigenous women’s experiences of, 234–40; judges’ view of constrained choices of Indigenous women, 112–14; leaving room for judicial discretion within, 293; necessity of its recognition of victimization-criminalization continuum, 286; need for gendered systemic analysis in, 63, 286, 308; need to interrogate itself, 39, 296–97, 298, 307; prevalence of women pleading guilty, 109–10; purposes and principles of sentencing, 16–21; racism of, 78; use of victimization-criminalization continuum by judges, 86 See also conditional sentences; Gladue reports; pre–sentence reports (PSRs); prisons K Kahypeasewat, R v., 93, 103–9, 193 Kanayok, R v., 133, 267 Keeping, R v., 174–75 Kendi, R v., 185, 195–98, 266 Kennedy, R v., 184, 190–91 Key, R v., 248–49 Keyser, Justice Brenda L., 117, 216–17, 218 Killiktee, R v., 124, 143–45, 206–7, 245 Kilpatrick, Justice R., 173 Kindred House, 1, Knockwood, R v., 138, 234 Kovatch, Judge D.J., 248–49 Krahn, Judge Anne, 91, 184 L L.M.L., R v., 192, 245, 264 Lafond, Judge Mary Ellen Turpel, 186–87 LeBel, Justice Louis: on alternatives to imprisonment, 152–53; on 403 IMPLICATING THE SYSTEM colonialism, 28; on failure of Gladue to reduce Indigenous overincarceration, 25, 289, 290; on systemic Indigenous social and economic deprivation, 147; on judges misinterpreting Gladue, 116–17, 212; on proportionality, 18; on need for more assertive judging, 292, 294, 295; on rehabilitation, 181; on Gladue factors as context not justification for crime, 156; on application of Gladue to serious offenses, 176; on constrained circumstances, 52–53, 132–33; on relationship of sanction to underlying causes of criminal conduct, 26 Legal Services Society of British Columbia (LSS), 131, 132, 137, 292 LeGrandeur, Judge J.N., 90, 134 Lilles, Judge Heino, 133, 225–29, 293 Lilley, R v., 92 Link, R v., 133, 220, 222, 260–61, 267 Littlecrow, R v., 124–25, 171 Luther, Judge Donald S., 111–12, 268, 302 M M.A.B., R v., 136, 221–22, 302 Maher, Justice R.D., 126, 152–54, 173 mandatory charging policies, 62–63 Martin, Evans, & Laviolette, R v., 110 Masakayash, R v., 89–90, 110, 134–35, 246 M(CA), R v., 194, 307 McClements, R v., 112, 173–74, 224, 261, 264, 267–68 McCook, R v., 127, 137, 220 McDonald, R v., 242–43 McIntyre, R v., 176 McKenzie-Sinclair, R v., 91, 184 404 McNabb, R v., 90 mental health: and Ashley Smith correctional story, 182–83; and conflict of interest in prison psychologists’ work, 274–75; effect of prisons on, 282–83; pathologizing of, 194; treatment services for in prison, 182, 202 Merkuratsuk, R v., 266–67 Missing and Murdered Indigenous Women and Girls (MMIWG) Inquiry, 58–61, 242 missing and murdered Indigenous women, 57–58, 77 moccasins story, 244 Morgan, R v., 90–91 motherhood: among accused in sentence research study, 244; as connected to criminalization, 241–43, 245; identified on sentencing regarding incarceration, 255–60; mitigating factor in sentencing, 245–55; proportion of mothers in prison, 48–49 N National Criminal Justice Section, CBA (NCJS), 35 Native Women’s Association of Canada (NWAC), 54, 58, 59; and Indigenous children in state custody, 69, 204; and criminalization, 266; and effects of colonization, 71, 72, 81; on Gladue, 308; and violence against women, 193; and women pleading guilty, 109–10 Nayneecassum, R v., 193 Niganobe, R v., 124, 145–47 Norheim, Judge D.C., 149–51 INDEX O Omeasoo, R v., 268–69 P Papin, R v., 238–40 Parliamentary intention, 301, 302–3 Parrett, Justice W Glen, 140–42 Pawis, R v., 114, 121–24, 188, 234 Pechawis, R v., 184, 185–86 Peeteetuce, R v., 206 Pelletier, R v., 214–16, 282 Pépabano, R v., 93 Petawabano, R v., 223 Peters (Pitwanakwat), R v., 132, 178, 309 Pham, R v., 258 Pijogge, R v., 247–48, 300, 304 polyvictimization, 55, 92 pre-sentence reports (PSRs): as differentiated from Gladue reports, 129–32; based on actuarial risk-based model, 210–11; and Gladue related information, 129–40; inaccuracy of and as problematic for women, 211; judicial reliance on, 206; judges departing from, 157–65, 185; judge not having access to, 200; recommending rehabilitation in prison, 206 See also Gladue reports prisons: Ashley Smith’s story of, 182–83; abolitionism, 260; appropriateness of treatment in, 287–89; as iteration of successive systems of racial control, 75–80; conditional sentences compared to those in, 260–62; considered culturally inappropriate for Indigenous women, 23, 183, 217, 275; and culturally sensitive programs, 288; detrimental effects on women of, 183, 213, 214–18, 221–22, 282–83; disparity of services between federal and provincial, 210, 276– 77, 279–80; failure to reduce Indigenous overrepresentation in, 80–81; Gladue’s arguments against, 21–24; importance of conditional sentences, 30–31; Indigenous women’s experiences of, 234–40; and innovative alternatives to, 152–53; judges’ belief of effectiveness of rehabilitation in, 199–201, 202, 205–10, 212–13; motherhood framed as incompatible with on sentencing, 250–260; proportion of mothers in, 48–49; overrepresentation of Indigenous women in, 4–5, 72–75; recidivism rates, 270–74; and revictimization, 55–56; sanctions to avoid/mitigate harms of, 221–22; treatment services in, 182, 202, 274–82; application of victimization-criminalization continuum regarding, 12–13; view of as refuge, 47–48 probation, 29 Proulx, R v., 29–30 psychologists, 274–75 public safety, 206–7 R racism, 76, 78 Ratushny, Justice Lynn D., 92, 101–3, 142–45, 206–7, 219, 245 R.C.L., R v., 235–36, 241–42 RCMP (Royal Canadian Mounted Police), 59, 60 Redhead, R v., 117, 216–17, 218, 281 Redies, R v., 220–21 rehabilitation: through correctional programs and appropriateness of, 287–89; judges’ belief 405 IMPLICATING THE SYSTEM in effectiveness of in prison, 199–201, 202, 205–10, 212–13; motherhood understood as connected to, 245–55; as part of sentencing objectives, 17; in R v Fineday, 187; in R v Ipeelee, 181; in R v Kendi, 196, 197; in R v Tippenskum, 189–90; in R v Woods, 188–89; PSR and sentencing shift in emphasis away from, 210–11; through conditional sentences and community services, 219–20, 230–33; and treatment services in prison, 274–82 Reinhardt, Justice Paul H., 114, 121–24, 188, 234 reintegration, 283 remand, 281 reserve system, 62, 64 residential schools: and assimilation of Indigenous peoples, 7; effect of on Indigenous peoples, 66–68; and judicial understanding of continued effects, 249, 254, 256; and judicial misapprehension of causal link, 152, 153, 155; replaced by child welfare system, 76–77 responsibilization, 45 restorative justice, 21–24, 29–32, 186 See also conditional sentences revictimization, 55–56, 77–78 risk assessment: and community resources, 224; and failure of section 718.2(e), 82–86; in R v Audy, 161–65; in R v Gladue, 82–86; in R v Shore, 159–60; in R v Smith, 226, 227; in R v Waskewitch, 210; shift in emphasis towards in PSRs and sentencing, 210–11 R.K., R v., 91 Rodrigue, R v., 169, 211 Rolston, Judge Ryan, 90, 191–92 406 Rosborough, Judge B.D., 268–69 Ross, Judge A Peter, 156 Ross, R v., 126, 173 Ross, Judge A.P., 280, 299 Ruddy, Judge Karen: and R v Firth, 90, 250, 270–71, 277–78; and R v McClements, 174, 224, 261, 264, 267–68; and victimization, 112 S Sack, R v., 177, 297 Samson, R v., 133, 258–59 Saskatchewan, R v., 178–79 Schinkel, R v., 193–94, 248 Schmaltz, Judge Bernadette E., 195–98 Schmidt, Judge E Dennis, 193–94, 248 Schuler, Justice V.A., 99–101, 179–80 section 718, 16–21 section 718.2(a)(ii): cited in R v Good without reference to Gladue, 116; mitigating in R v Ussak, 167–68; as problematic in context of sentenced woman’s own abuse, 20-21; unpacking context in R v Kahypeasewat, 106–7; section 718.2(e): application to all Indigenous persons at sentencing, 136; effect of on sentencing, 16; failure to reduce Indigenous overincarceration, 80–81; Gladue explains and fleshes out, 21–24; government regression on, 72–75; not referenced in R v Good, 116; as instrument of sentence reduction, 179; text of, 18; why risk assessment hampers its effectiveness, 82–86 self-defence, 103–9, 111–12 sentencing process, 16–21, 82–86 INDEX sentencing research study: beginnings of, 2–3; cases in which a causal link is misapplied, 124–28, 153– 54; case in which conditional sentence is ordered to promote healing, 230–33; cases with unclear Gladue analyses, 140–47, 173; cases in which agency supersedes Gladue analysis, 99–101, 154–57; case where victimization-criminalization continuum and motherhood contribute to a conditional sentence, 249; cases in which Gladue’s impact is implicit, 173–75; cases in which judges decontextualize and individualize histories, 185, 192–205; cases in which judges explicitly recognize victimization, 89–95; cases in which judges recognize women’s constrained choices, 112–24; cases in which motherhood is mitigating and/or impacts sanction form, 244–60; cases in which the accused’s indigeneity is questioned, 149–54; cases manifesting explicit Indigenous mistrust of justice system, 234–43; cases where Gladue is wrongly suggested to not apply to serious offenses, 175–77; cases involving a lack of community resources, 223–29; cases with contextualized judicial reasoning, 184–92; cases where Gladue analyses and the victimizationcriminalization continuum lens helpfully converge, 157–71; cases with sensitive judgments, 179–80; cases with inadequacy or unavailability of Gladue reports, 124, 132–38; description of, 11– 12; effect of Bills C-9 and C-10 on cases of, 35–36; explanation of how it was conducted and positioning of, 11–12, 87–89 Serré, R v., 125–26, 134, 170–71 sex work, and amplified vulnerabilities, 60, 70, 96, 97 Shecapio, R v., 207–8 Shenfield, R v., 93, 95–96 Shore, R v., 157–61 Simms, R v., 111–12, 268, 302 Sinclair, R v., 212–14 Sisters in Spirit, 59, 60, 70, 74 Sixties Scoop, 76–77, 79 Slough, Judge Donald R., 161–65, 300–301 Smallwood, Justice S H., 133, 267 SMC, R v., 175–76 Smith, Ashley, 182–83 Smith, Justice G Patrick, 154–56 Smith, Judge Garth N., 175–76 Smith, Judge M.J., 133, 220, 222, 260–61, 267 Smith, Justice Kenneth J., 199, 201 Smith, Judge Marva J., 91, 92 Smith, Justice R.S., 171 Smith (2004), R v., 115, 225–29 Smith (2012), R v., 134, 222, 301–2 Snell, Judge Carol, 157–61 Sosna, Justice Alexander, 20, 176 Sowden, R v., 254–55, 262 Spence, R v., 170, 255–56 Spencer, R v., 246 Stack, Justice Robert P., 174–75, 247–48, 266–67, 300, 304 state custody of children, 49 See also child welfare system status laws, 68–69 Stevens, R v., 156 Stuart, Chief Judge Barry, 187, 262, 264–65, 308 substance abuse: and breaching conditions, 262–70; and intimate violence, 54; and cases regarding treatment in prison, 207, 236 407 IMPLICATING THE SYSTEM T T.A.P., R v., 252–53 Teslin Tlingit Council, 306 Tippenskum, R v., 114, 117–19, 184, 189–90 Tizya, R v., 249 Toews, R v., 125, 138–39, 234, 277 treaties, 65 Truscott, Justice John D., 125 Truth and Reconciliation Commission (TRC): and child welfare system, 76, 77; on colonization, 64, 65, 68, 70, 71; on mandatory minimums and CSOs, 30; and MMIWG Inquiry, 60–61; on overrepresentation of Indigenous peoples in prisons, 286, 305; on residential schools, 66, 67, 81 U United Nations Office on Drugs and Crime (UNODC), 183, 213 Ussak, R v., 157, 166–69, 235 V Veit, Justice Joanne B., 266 victimization, 6, 13–14, 40–41, 172–73, 284–85, 310 victimization-criminalization continuum: and agency, 45–47, 51–52, 128; cases where it converges with Gladue analysis, 157–71; and constrained choices of Indigenous women, 112–14; criticisms of, 45–47; development of, 3, 42–44; effect of colonization on, 64; explanation of, 42, 44–45; as feminist theory, 42–46, 172; and intersectionality, 50–51; and judicial reasoning on sentencing, 52–53; and narrowed options for 408 Indigenous women, 49–50, 52; nature of connection between victimization and crime in, 50; overlap and difference in focus from Gladue analysis, 87–88, 128–29, 163, 171–73, 183–84; plea for its recognition by justice system, 286; questioning its validity, 14–15; as recognized by judges, 86, 89–94; in R v Chouinard, 101–3; in R v George, 94–95; in R v Good, 114–17; in R v Kahypeasewat, 103–9; in R v Shenfield, 95–96; in R v Woods, 97–99; as reference to assist and understand sentencing of Indigenous women, 12–13; relationship to Gladue analysis, 128–29, 172; research into, 53–54 Victims Bill of Rights Act, 16 violence against Indigenous women, 13–14, 56–57, 61–63, 77–78 W Waskewitch, R v., 208–10, 211–12, 224–25 Watchuk, Justice Jeanne E., 139 Whalen, Justice W Larry, 145–47 Whelan, Justice S.P., 97–99, 185–86, 204, 274–75, 281 Whitford, R v., 124, 140–42, 288 Woods, R v., 93, 97–99, 188–89, 204, 280–81 Z Zarzeczny, Justice T.C., 206 ... AT I N G THE SYSTEM I M P L I C AT I N G THE SYSTEM JUDICIAL DISCOURSES IN THE SENTENCING OF IN DIGE NOUS WOM E N ELSPETH KAISER-DERRICK Implicating the System: Judicial Discourses in the Sentencing... with the law The legislation also helps to alleviate some of the most serious burdens that women face in the correctional system: inability to serve their sentences close to 31 IMPLICATING THE SYSTEM. .. Indigenous women is “because of the violence they experience outside the prison walls, and because of their resistance strategies inside them.”234 For these and other reasons, the experience of incarceration