Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m M A Y 2 0 1 5 59 compassionate and moving rul- ing from a Toronto judge has focused attention on Gladue courts and other support mechanisms for aboriginal offenders, and of the prog- ress, and lack of progress, since the landmark R. v. Gladue decision first came out. In the ruling in R. v. Armitage, Jus- tice Shaun Nakatsuru took pains to avoid complicated legal language that defendant Jesse Armitage might fail to understand, saying Armitage's aborigi- nal background had been a factor behind the offences he committed. "In the Gladue court at Old City Hall, accused persons who share a proud his- tory of the first people who lived in this nation not only have a right to be heard, but they also have a right to fully understand," he wrote. "One important thing I must consider is the past injus- tices done to the aboriginal peoples in this country. How that has affected the present. How that has affected Mr. Armitage. I must also consider the pres- ent problem of the over-incarceration of aboriginal offenders." He added: "If I could describe Mr. Armitage as a tree, his roots remain hid- den beneath the ground. I can see what he is now. I can see the trunk. I can see the leaves. But much of what he is and what has brought him before me, I can- not see. They are still buried. But I am sure that some of those roots involve his aboriginal heritage and ancestry. They help define who he is. They have been a factor in his offending. They must be taken into account in his sentencing." Nakatsuru had planned a non-custo- dial sentence for Armitage. But Armit- age, rearrested for another offence before the scheduled hearing, request- ed that he serve the remaining nine months of his time in Ontario's St. Law- rence Valley Correctional and Treat- ment Centre. "He asked for this because he wanted to be sure he had enough time in custody to fully make use of the help available," Nakatsuru wrote. "This will be by far the longest jail term he will have done to date. To be frank, I would have considered something less." In its 1999 Gladue ruling, the Supreme Court of Canada said the legal system needs to take background and cultural considerations into account when sentencing aboriginal offenders, and look closely at alternatives to a cus- todial sentence. That spawned both the creation of specialized Gladue courts, like the one in Toronto's Old City Hall, and of Gladue reports commissioned on behalf of aboriginal offenders who could face a custodial sentence. The changes brought some progress, although in its L E G A L R E P O RT \ F O R E N S I C S & C R I M I N A L L AW HUAN TRAN Getting there Toronto ruling throws spotlight on Gladue courts and reports but also the need to get background information to judges. By Janet Guttsman A Read the decision in R. v. Armitage at canlii.ca/t/gg987.

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