[4] In 1996, in its report Bridging the Cultural Divide, the Commission referred to Indigenous overrepresentation in the criminal justice system as "injustice personified.
We call upon federal, provincial and territorial governments to commit to eliminating the overrepresentation of Aboriginal people in custody over the next decade, and to issue detailed annual reports that monitor and evaluate progress in doing so.
The Supreme Court corrected this approach, noting that s.718.2(e) applied to "all aboriginal persons wherever they reside, whether on- or off-reserve, in a large city or a rural area"(at paragraph 91).
[17] R v Wells, a decision of the Supreme Court of Canada, confirmed that s.718.2(e) of the Criminal Code is to be used to discourage imprisonment and encourage the use of restorative justice practices.
[18] R v Kakekagamick, a decision of the Ontario Court of Appeal, noted that there is a "positive duty on counsel to assist the sentencing judge in gathering information as to the aboriginal offender's circumstances.
The Ontario Court of Appeal found that a failure to consider this information in accordance with s.718.2(e) and R v Gladue amounted to an error of law.
The court was critical of the lack of progress made in reducing the number of Indigenous individuals in custody, citing the continued rise of the representative population since the Gladue decision.
The court was very specific in their instructions, stating at paragraph 60: "When sentencing an Aboriginal offender, court must take judicial notice of such matter as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide and of course higher levels of incarceration for Aboriginal peoples"[20] Finally, the court corrected two key errors in relation to s.718.2(e).
[21] These reports are designed to address the wider circumstances of Indigenous peoples in general, including histories of colonialism, systemic discrimination, residential schools and the sixties scoop.
It also provides an extensive background in relation to the individual history of employment, education, social circle and connections with family.
[32] Upon the entering of a guilty plea, an Indigenous individual can be diverted to the Community Council at Aboriginal Legal Services Toronto.
This Community Council involves the use of a restorative sentencing circle, including Indigenous Elders, who discuss the offence in question, and set up a rehabilitative plan of care.
This plan of care may include access to harm reduction, sweat lodges, support for anger management, counselling for substance abuse, housing, vocational training and work experience.
[32] Courthouses in North Vancouver, Duncan, Kamloops and New Westminster in British Columbia offer Gladue Courts for Indigenous individuals who have pleaded guilty to criminal offences.