OPINION: 20 years after Gladue, are Indigenous women better off or worse?

Being Indigenous is a mitigating factor in criminal sentencing but some say it can backfire

When Jamie Tanis Gladue stabbed her common-law husband to death during her 19th birthday celebration in 1999, the Cree woman surely couldn’t have imagined her actions would resonate in the criminal justice system in 2019.

Gladue thought her man was having sex with her sister, she called him on it, he insulted her and, in a drunken rage, she killed him.

Gladue’s challenge of a provision in the criminal code went all the way to the Supreme Court of Canada and serves now as a guiding principle in sentencing for Indigenous offenders.

The quick version, and I’m not sure how many people know this: Being Indigenous is a mitigating factor in sentencing.

• RELATED: B.C. prosecutors get new guidelines for dealing with Indigenous accused

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Why? In part because Indigenous people are grossly over-represented in the criminal justice system. At about three to four per cent of the Canadian population, about one in four people in jail in Canada are of First Nations descent. In British Columbia? More than half.

Canada’s Indigenous population hasn’t yet recovered from the impact of residential schools and government policies that tore families apart amounting to cultural genocide. The treatment of First Nations led to loss of cultural identity, poverty, and all the social problems that come with all of that.

But it’s even worse.

Nature versus nurture has been the longstanding debate in sociology and psychology on how we come to be the people we are. Is it your genes that makes you turn to drugs and crime or because your parents neglected you? The answer is that not only is it not as simple as one or the other or even somewhere in between, but that nurture can affect nature.

Welcome to the world of epigenetics, which says that not only can your genes be affected by life experiences but those genes can be affected by the experiences of your parents and your grandparents.

“According to the new insights of behavioral epigenetics, traumatic experiences in our past, or in our recent ancestors’ past, leave molecular scars adhering to our DNA.” That’s according to Dan Hurley in a 2013 Discover Magazine article on the subject.

“Jews whose great-grandparents were chased from their Russian shtetls; Chinese whose grandparents lived through the ravages of the Cultural Revolution; young immigrants from Africa whose parents survived massacres; adults of every ethnicity who grew up with alcoholic or abusive parents — all carry with them more than just memories.”

So how about Indigenous folks in B.C., young Sto:lo people living today, some of whose parents and grandparents not that long ago endured a cultural genocide at the hand of government-run residential schools?

“Like silt deposited on the cogs of a finely tuned machine after the seawater of a tsunami recedes, our experiences, and those of our forebears, are never gone, even if they have been forgotten,” Hurley writes.

So, now we have Gladue. A justice fix to lessen sentences for Indigenous offenders, provide alternative measures and maybe, just maybe provide some historical reconciliation.

But what if Gladue, tragically ironically, is doing precisely the opposite, at least in some circumstances?

Way more common than a case such as Gladue’s, i.e. a woman killing a man, is that of men assaulting and killing their female intimate partners. And in the wake of the Missing and Murdered Indigenous Woman (MMIW) report, questions are now raised about Gladue and its purported goals.

Sadly, the person most likely to hurt or kill an Indigenous women is an Indigenous man. Are they getting off easy because of Gladue?

The Gladue Writers Society of B.C. rejects the notion that the principle is a “get-out-of-jail-free” card for offenders. As usual, things are more complicated than that.

But here we are. Colonialism and epigenetics. A tragic over-representation of Indigenous people in our courtrooms. A sentencing provision to try to find justice. An unintended consequence affecting the most vulnerable.

Twenty years after Gladue, a month after the MMIW report, are Indigenous women facing more or less protection in B.C. Is anything any better? Worse?

I’m not sure.


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