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2020 PROJECT AFTER R. v. Gladue

OLD PROJECT R. v. Gladue

R v Gladue

R v Gladue is a decision of the Supreme Court of Canada on the sentencing principles that are outlined under s. 718.2(e) of the [[Criminal Code (Canada)|Criminal Code]]. S. 718.2(e) directs the courts to take into account the history of the offender, "with particular attention to the circumstances of Aboriginal offenders”, and directs the courts to seek, “all available sanctions, other than imprisonment”.

Background

On September 16, 1995, Jamie Tanis Gladue, a young Indigenous woman, was celebrating her 19th birthday with some friends in [[Nanaimo, British Columbia]]. Following a confrontation, the victim uttered many insults at the offender, at which point the offender stabbed the victim in the chest. The victim, Jaime Gladue’s boyfriend, was also believed to be having an affair with Jaime Gladue’s sister. Jaime Gladue was subsequently charged with manslaughter and was sentenced to three years imprisonment. (RV GLADUE 1999)

At Jaime Tanis Gladue’s sentencing hearing the judge took into account many aggravating factors. The court also took into account the absence of any serious criminal history. Yet they did not take into consideration Jaime Gladue’s traumatic past, such as the fact that Jaime Gladue’s mother was killed in a car accident, when Jaime Gladue was only 14 years old.(SCC LEXUM) The trial judge held that s. 718.2(e) did not apply to off-reserve Aboriginals. The [[Court of Appeal for British Columbia|British Columbia Court of Appeal]] upheld this sentence.

Reasons of the court

Justice Cory and Justice Iacobucci held that the courts below misjudged, and made a mistake in taking an overly narrow approach of s. 718.2(e). The purpose of this provision is to address the historical and current problem with the severe over-representation of Indigenous people within the criminal justice system. In Canada, Indigenous people make up over 50% of the prison populations in almost every province, yet make up less than 10% of Canadas total population. (CITE STATS CANhttps://www150.statcan.gc.ca/n1/pub/85-002-x/2016001/article/14318/tbl/tbl05-eng.htm). Every province in Canada has a severe over-representation of Indigenous people within their prison populations and within the justice system as a whole. Section 718.2(e) was deemed to be applied to all Aboriginals, regardless of place of residence or lifestyle.

Challenges

Jaime Gladue was not on reserve land at the time of the offense and therefore her s. 718.2(e) rights were never taken into consideration. It was later noted and stated that section 718.2(e) applies too all, “all aboriginal persons wherever they reside, whether on- or off-reserve, in a large city or a rural area”. Due to this and the fact the sentence was upheld twice shows Jaime Gladue’s section 718.2(e) rights were infringed upon. This was one of the biggest challenges of the R. v. Gladue case.

Outcomes of R. v. Gladue

In spite of all the challenges and problems involved with the R. v Gladue case, the outcomes are extremely powerful. Following the case of R. v. Gladue, in 1999, there was the creation of [Gladue Courts](NEEDS TO BE CREATED) and Gladue Reports(LINK). Gladue Reports were implemented in an attempt to lower the severe over-representation of Indigenous people within the Canadian criminal justice system. Some of the items noted on a Gladue Report include the tragic history, cultural oppression, poverty, abuse suffered and residential school attendance of the Indigenous offender. (Gladue Sentencing Principles. (2018). Online Gladue Modules. Module 3. Retrieved from, http://gladueprinciples.editmy.website/english) Gladue Courts were implemented in an attempt to divert Indigenous people away from the criminal justice system, towards a more rehabilitative approach. Gladue Courts aimed to incorporate a more traditional Indigenous sentencing atmosphere, which included table discussions around a circle table versus the standard court atmosphere. Gladue Courts and Gladue Reports have unfortunately not been fully adopted by every province. Since the implementation of R. v. Gladue there has been no decrease in the over-representation of Indigenous people within the criminal justice system. Gladue Reports still fail to be implemented whenever possible. In subsequent years there have been a few select landmark Supreme Court rulings which link to R. v. Gladue, 1999, such as the major landmark case of R. v. Ipeelee 2012 (LINK), and the major landmark case of R. v. Wells, 2015. (LINK)

See Also

• Gladue Court
• R. v. Ipeelee
• R v Wells
• Gladue report
• Healing lodge

REFERENCES TO ADD

Stats Can: https://www150.statcan.gc.ca/n1/pub/85-002-x/2016001/article/14318/tbl/tbl05-eng.htm

Gladue Principles: http://gladueprinciples.editmy.website/english

PEER REVIEW HELP (NOT TO PUBLISH)

Phoenix and Chase both peer reviewed and helped immensely.

Chase pointed out a few broken links that I had to battle with (one being the section 718.2(e).

Phoenix provided me with insight to link "Healing lodge" under important links, which I found to be a very impactful link.

Can put peer review under this heading

Peer Review 1:

All written work will be held to high standards and as a course that privileges Indigenous knowledges and epistemologies, your work should reflect Younging’s Indigenous Style Guide and the following guidelines^[1] set by the peer-reviewed journal Decolonization: Indigeneity, Education, and Society:

a.       Indigenous: In recognition of the communities of identity connected by the term, we strongly recommend all submissions capitalize the term ‘Indigenous’ in all contexts. Decolonization believes that the term "Indigenous" is a deeply politicized one; it evokes shared historical memory, cultural meanings, and particular political interests. By spelling "indigenous" with a lower case "i" we un/knowingly reproduce dominant writing traditions that seek to minimize and subjugate Indigenous knowledges and people. All authors are encouraged to explore the politics of their language choices, both in submitted texts and broader conversation.

In the lead section, it states "civil disobedience" which may be changed, possibly to something less bias and reflective of both parties. Lastly, I felt the noun "protesters" in the "2020" timelline section could be changed, also to be more reflective of both parties.

Peer Review 2:

MY INFO IS IN BOLDED WRITING

2020 Canadian pipeline protests
Date	January 2020–present
Location	Canada
Caused by	Coastal GasLink Pipeline
Status	Ongoing
Parties
Protestors Office of the Wetʼsuwetʼen Union of British Columbia Indian Chiefs Listuguj Miꞌgmaq Kahnawake Mohawks of the Bay of Quinte Government and police Royal Canadian Mounted Police Department of Crown-Indigenous Relations Ontario Provincial Police

The 2020 Canadian pipeline and railway protests are a series of civil disobedience protests being held in Canada to protest the construction of the Coastal GasLink Pipeline in regards to the issues of Indigenous land rights and Indigenous peoples commitment to the conservation of the land, animals, resources and the environment. The protests began with the Wetʼsuwetʼen First Nation hereditary chiefs and their supporters blocking access to the Coastal GasLink Pipeline pipeline construction camps in Wetʼsuwetʼen territory. After the Royal Canadian Mounted Police (RCMP) of British Columbia enforced a court injunction, removing the Wetʼsuwetʼen blockades in February 2020, solidarity protests sprang up across Canada. The most notable of these were rail blockades, including the blocking of the main CNR rail line through Eastern Ontario. Passenger rail and freight rail movements were blocked for several weeks.

Coastal GasLink pipeline project

Main article: Coastal GasLink Pipeline

The Coastal GasLink pipeline is a 670-kilometre (420 mi) long natural gas pipeline designed to carry natural gas from mines in north-eastern British Columbia to a liquefaction plant located at the port of Kitimat. The project is intended to supply natural gas to several Asian energy companies, who are partners in the project. The pipeline's route passes through unceded lands of several First Nations peoples, including 190km of Wet'suwet'en territory. The consortium developed its plans for the pipeline route in the early 2010s, securing the approval of several First Nations councils along the route but did not secure the approval of the Office of the Wetʼsuwetʼen, the hereditary government of the Wetʼsuwetʼen peoples, although the elected government of the Wetʼsuwetʼen did enter into a benefits agreement with TCEnergy, the owner of the pipeline project. In 2014, British Columbia authorities approved the environmental assessment of the project, then approved permits to construct the project in 2015 and 2016. TCEnergy was given final approval by its partners to begin construction of the project in 2018, without consulting with the Wet'suwet'en hereditary chiefs.

Wetʼsuwetʼen protests, injunction and agreement

Timeline of Wet'suwet'en protests

2010

Beginning in 2010, the Wetʼsuwetʼen hereditary chiefs and their supporters set up barricades and checkpoints along the Morice Forest Service Road that provides access to the construction of the pipeline project.

2018

After TCEnergy received its partners' go-ahead in 2018, it appealed to the BC courts to grant an injunction to stop the blockade of its intended route through the Wetʼsuwetʼen territory. The first injunction was issued by the B.C. Supreme Court in December 2018. The Royal Canadian Mounted Police (RCMP) set up a temporary local office on the Morice Forest Service Road to enforce the injunction.

2019

In January 2019, the RCMP arrested several of the Wetʼsuwetʼen protesters, then withdrew after emergency negotiations were arranged with the British Columbia government. This injunction was extended by the B.C. Supreme Court on December 31, 2019. The extension included an order authorizing the RCMP to enforce the injunction. One day later, the hereditary chiefs ordered the eviction of the RCMP and Coastal GasLink personnel from the Wetʼsuwetʼen territory.

January 2020

The RCMP announced January 30, 2020, that they would stand down while the hereditary chiefs and the province met to discuss and try to come to an agreement.

February 2020

On February 3, the Office of the Wetʼsuwetʼen asked for a judicial review of the environmental approval for the pipeline.

All parties issued statements on February 4, 2020 that the talks had broken down.

On February 6, the RCMP began enforcing the injunction, arresting a total of 21 protesters at camps along the route between February 6 and 9. The largest of those camps is Unistʼotʼen Camp, directly in the path of the pipeline, established in 2010 as a checkpoint, which has since added a healing centre. The arrests included protest organizers Karla Tait, Freda Huson and Brenda Michell. All were released within two days. The RCMP also detained several reporters and were accused of interfering with the freedom of the press. Union of British Columbia Indian Chiefs Grand Chief Stewart Phillip stated that "we are in absolute outrage and a state of painful anguish as we witness the Wetʼsuwetʼen people having their title and rights brutally trampled on and their right to self-determination denied."

On February 11, 2020, the RCMP announced that the road to the construction site was cleared and TC Energy announced that work would resume the following Monday.

After the hereditary chiefs made it a condition for talks with government, the RCMP closed their local office and moved to their detachment in Houston on February 22.

March 2020

March 1, 2020. Proposed agreement made between Federal Crown-Indigenous Relations and the Wet'suwet'en hereditary chiefs. Specific details of the agreement have not been released. This agreement has not been signed it must been viewed by, and agreed upon by all hereditary chiefs. (https://globalnews.ca/news/6615733/wetsuweten-talks-agreement-reached/) Within the interview with one of the hereditary cheifs (find chiefs name) he speaks that the two parties have come to an understanding of respect, but the chief does not make clear that an agreement has been made.

Historical Background of the Wet'suwet'en Peoples

Hereditary chiefs are chosen from birth and these chiefs have lived in the wilderness to gain a respect and understanding for both the animals, the land, the environment and for people. Heridtary chief, "Na’Moks said it’s the hereditary chiefs’ duty to protect the territory" (https://aptnnews.ca/2020/01/27/weve-got-a-real-divide-in-the-community-wetsuweten-nation-in-turmoil/)

Wet'suwet'en are an Indigenous Nation made up of five clans including the: Gil seyhu (Big Frog), Laksilyu (Small Frog), Gitdumden (Wolf/Bear), Laksamshu (Fireweed) and the Tsayu (Beaver Clan). (http://www.wetsuweten.com/culture/clan-system). These clans territory include the central western portion of British Columbia.

The language spoken by the Wet'suwet'en people is, "Witsuwit'en, a dialect of the Babine-Witsuwit'en language which, like its sister language Carrier, is a member of the Athabaskan familyWitsuwit'en (http://www.wetsuweten.com/culture/language)

Impact on Wet'suwet'en Land

-The case of R. v. Delagmuukw was finally settled

-The map of the pipeline in relation to Wet'suwet'en land is displayed in the following article: https://aptnnews.ca/2020/01/27/weve-got-a-real-divide-in-the-community-wetsuweten-nation-in-turmoil/. As cited the pipeline, "is going along rivers, it will go over rivers and even in some instances it will go under,” said Na’Moks.“190 kilometres of the proposed route will run through our territory.  It threatens our water, our salmon, and our rights, our title, our jurisdiction” (https://aptnnews.ca/2020/01/27/weve-got-a-real-divide-in-the-community-wetsuweten-nation-in-turmoil/)

Canada-wide solidarity protests

Main article: Timeline of the 2020 Canadian pipeline and railway protests

Protests on January 20 disrupted BC ferry service leaving from Swartz Bay, which is Victoria's main ferry link to the BC mainland. BC ferries later obtained a preemptive injunction to prevent anticipated future demonstrations from blocking Vancouver-Victoria ferry service.

After the RCMP took down the Wetʼsuwetʼen barricades, protests sprang up across Canada in solidarity with the Wetʼsuwetʼen hereditary chiefs. On February 11, protesters surrounded the BC Legislature in Victoria, preventing the traditional ceremonies around the reading of the Throne Speech by the Lieutenant Governor. Members of the Legislature had to have police assistance to enter or used back or side entrances. Other protests took place in Nelson, Calgary, Regina, Winnipeg, Toronto, Ottawa, Sherbrooke, and Halifax.

Several major protests blocked access to the Port of Vancouver, Deltaport, and two other ports in Metro Vancouver for a number of days before the Metro Vancouver police began enforcing an injunction on the morning of February 10, 2020, arresting 47 protesters who refused to cease obstructing the port. By February 14, 66 shipping vessels were stalled in Vancouver and Prince Rupert waiting to load or unload goods.

Protests on February 16 and 17 temporarily blocked the Rainbow Bridge in Niagara Falls, Ontario and Thousand Islands Bridge in Ivy Lea, Ontario, two major border crossings between the United States and Canada. At the same time, Miꞌkmaq demonstrators partially blocked access to the Confederation Bridge, the sole road link to Prince Edward Island. On February 18, several activists were arrested trespassing at BC Premier Horgan's residence.

The protests led to the creation of several hashtags, used widely on social media in relation to coverage of the protests. These include #ShutDownCanada, #WetsuwetenStrong, #AllEyesOnWetsuweten, #AllEyesOnUnistoten (used particularly when the RCMP were enforcing the injunction against the Unistʼotʼen Camp on February 9), and #AllEyesOnTyendinaga (used particularly when the Ontario Provincial Police took action against the protesters at the Tyendinaga rail blockade on February 24).

Rail disruptions

Other First Nations, activists and other supporters of the Wetʼsuwetʼen hereditary chiefs have targetted railway lines. Near Belleville, Ontario, members of the Mohawks of the Bay of Quinte First Nation began a blockade of the Canadian National Railway rail line just north of Tyendinaga Mohawk Territory on February 6, 2020, causing Via Rail to cancel trains on their Toronto–Montreal and Toronto-Ottawa routes. The line is critical to the CNR network in Eastern Canada as CNR has no other east-west rail lines through Eastern Ontario.

Other protests blocking rail lines halted service on Via Rail's Prince Rupert and Prince George lines, running on CNR tracks. Protests on the CNR line west of Winnipeg additionally blocked the only trans-Canada passenger rail route. Protests disrupted GO train lines in the Greater Toronto Area (GTA) and Exo's Candiac line in Montreal. Canadian Pacific Railway (CPR) rail lines were also disrupted in downtown Toronto and south of Montreal. The Société du Chemin de fer de la Gaspésie (SCFG) freight railway between Gaspé and Matapedia was blockaded on February 10 by members of the Listuguj Miꞌgmaq First Nation.

Starting on February 6, Via Rail announced passenger train cancellations on a day-to-day basis. Trains on the Toronto-Ottawa and Toronto-Montreal routes were cancelled first. Prince George-Prince Rupert service was suspended on February 11. Canadian National Railway (CNR) rail freight traffic was also halted along these lines. Other Canadian routes were intermittently disrupted as well.

On February 13, CNR shut down its rail lines east of Toronto. On the same day Via Rail, which rents these lines for its passenger service, announced it would be shutting down its entire network, with the exception of the Sudbury–White River train line and the Winnipeg–Churchill train between Churchill and The Pas, until further notice.

Amtrak international service from New York City to Toronto and Montreal has not been affected. Amtrak rail service between Seattle and Vancouver on BNSF Railway Company lines has been intermittently blocked; Amtrak's bus operation over the same route has not been affected.

CNR has multiple injunctions against the protestors, including several separate injunctions against the protestors at Belleville. The Ontario Provincial Police decided not to act immediately on the injunctions.

The rail blockade of Prince Rupert was lifted on February 14. On February 18, VIA announced partial restoration of passenger service starting February 20, between Ottawa and Quebec City. Via later announced it would resume some south-western Ontario routes. Trans-Canada passenger service was not restored.

On February 19, a group of about 20 protesters from a group called "Cuzzins for Wet’suwet’en" erected a blockade on a CN rail line in west Edmonton. CN obtained a court injunction, and less than twelve hours after the blockade began, it was dismantled by counter-protesters after a CN legal representative arrived to serve the injunction.

On February 19, activists set up a blockade on the Mont-Saint-Hilaire rail line in Saint-Lambert, Quebec, promising to stay until the RCMP leaves the disputed zone in Wetʼsuwetʼen territory. The blockade caused Via Rail to postpone resuming service between Montreal and Quebec City. The Mont-Saint-Hilaire rail line was cleared on February 21, 2019 after Quebec Police arrived to enforce a CNR injunction.

On February 20, another blockade of CPR tracks sprang up between Kamloops and Chase in British Columbia. The protesters left voluntarily on February 21, after the RCMP offered to leave the Wet’suwet’en land. The group vowed to return in four days if a dialogue was not started between the prime minister and the hereditary chiefs. This was followed by CPR writing an open letter to Prime Minister Trudeau, asking him to speak directly with the hereditary chiefs.

On February 23, the protesters at the Tyendinaga rail blockade were served with a notice by the OPP to clear their blockade by midnight to avoid prosecution for disobeying the injunction against the blockade. When the activists did not vacate by the next morning, the OPP came and removed the blockade, arresting several of the protesters. Immediately following the police action, new protests sprung up in the province of Quebec, including a temporary rolling blockade of the Honoré Mercier Bridge near Montreal by Mohawks from Kahnawake, a new rail blockade by the Listuguj Mi'gmaq in the Gaspé Peninsula, and a barricade of Route 344 which was the site of the 1990 Oka Crisis.

Impact

The blockade led to the shutdown of CNR's Eastern Canadian network, causing a complete halt of freight traffic from Halifax west to Toronto. On February 19, Canadian Manufacturers and Exporters estimated that CA$425 million in goods were being stranded each day of the shutdown. An executive of the Business Council of Canada called the shutdown 'potentially a catastrophe for the economy" and said that rail 'is the backbone of infrastructure in this country."

Due to a poor growing season which resulted in an unusually late harvest just before Christmas, Canadian wheat and barley shipments were already in a backlog and have been further impacted by the rail blockade. Spring farm supplies such as fertilizer are also delayed by the rail shutdown. Canadian grain farmers have previously advocated to have rail transport declared an essential service. Canadian Federation of Agriculture president Mary Robinson warned of "huge financial consequences" as farmers do not get paid until products are delivered to the market.

Dennis Darby, president and CEO of the Canadian Manufacturers and Exporters Association, states that Canadian manufacturers rely on 4,500 rail cars per day, which represent both supply chain and delivery of finished products. Many of these products are too large or bulky to be shipped by other means. The total value of these deliveries amounts to CA$200 billion annually. Chemicals trade group Responsible Distribution Canada warned of shortages of chlorine to purify drinking water. Supply chains for chlorine, jet fuel and de-icing fluid all rely on rail transport: "You can't put it in a truck and send it down the 401" said an executive of the Chemistry Industry Association of Canada. Mining, which accounted for 20% of Canada's 2018 exports, also moves "most" of its output by rail. By February 21, 4,000 containers reportedly sat on the docks of Montreal waiting for transport and no grain had arrived for shipment at the port. In Halifax, the Atlantic Container Line has diverted to New York and Baltimore. In Vancouver, goods waiting to be shipped east have led to a backlog of 50 ships waiting to be unloaded.

The disruption of propane rail shipments led to shortages and rationing, during a time when many communities have experienced extremely cold weather. In Atlantic Canada, at the end of the propane supply line, reserves fell to a five-day supply by February 14. Superior Propane, Canada's largest supplier, rationed distribution in Atlantic Canada.

On February 18, CNR laid off 450 employees for reasons related to the pipeline disruptions; the company has stated that as many as 6,000 of its 24,000 employees could be laid off. SCFG laid off five of its 30 employees on February 14. On February 19, Via Rail announced temporary layoffs of up to 1,000 people due to the blockades.

Federal government response

Prime Minister Justin Trudeau said politicians should not be telling the police how to deal with protesters and that resolution should come through dialogue. The Canadian government does not tell the police what to do operationally. In any case, the police services are under provincial or municipal control.

On February 12, Canada's Indigenous Services Minister Marc Miller began a dialogue with several indigenous leaders from different parts of Canada. On February 15, Miller met the Mohawks in a ceremonial encounter on the CNR train tracks to renew a 17th Century treaty between the Iroquois and the British Crown known as the Silver Covenant Chain. Miller and the leaders of Tyendinaga then discussed the blockade. Miller asked for a temporary drawback of the protest but his request was refused after Wetʼsuwetʼen hereditary Chief Woos, who was on the phone, stated that the RCMP was still on his territory and "they are out there with guns, threatening us." Leaked audio of the meetings included a Mohawk resident in the meeting telling the minister to "Get the red coats out first, get the blue coats out … then we can maybe have some common discussions". Miller returned to Ottawa and met with Prime Minister Trudeau and other members of the Cabinet called the "Incident Response Team". Trudeau had returned from a foreign relations trip to deal with the issue.

On February 18, the House of Commons of Canada resumed after the winter break. Trudeau addressed the Commons asking Canadians for patience as the government seeks a negotiated end. "On all sides, people are upset and frustrated. I get it. It's understandable because this is about things that matter — rights and livelihoods, the rule of law and our democracy." Opposition leader Andrew Scheer condemned the government's refusal to use the police to stop the illegal blockades, calling it "the weakest response to a national crisis in Canadian history. Will our country be one of the rule of the law, or will our country be one of the rule of the mob?". Trudeau held a private meeting with the other opposition parties' leaders, barring Scheer after his comments.

On February 18, the Assembly of First Nations (AFN) held a press conference in Ottawa. AFN National Chief Perry Bellegarde called for all parties to engage in dialogue. "It's on everybody. It's not on any one individual. I'm just calling on all the parties to come together, get this dialogue started in a constructive way."

On February 20, according to a statement from Canadian Public Safety Minister Bill Blair, the RCMP agreed to move its personnel from the Wetʼsuwetʼen dispute area to nearby Houston. The next day, Prime Minister Trudeau held a press conference to state "Canadians have been patient. Our government has been patient, but it has been two weeks and the barricades need to come down now. The government had made repeated overtures to the hereditary chiefs to hold meetings but had been ignored. You can’t have dialogue when only one party is coming to the table. Our hand remains extended should someone want to reach for it. We have come to a moment where the onus is now on Indigenous leadership."

Shortly after Trudeau's statement on February 21, the Wet’suwet’en Hereditary Chiefs released a statement reaffirming that discussions would continue once all RCMP and CGL personnel vacate the Wet’suwet’en territory. At the same time, the Mohawk of Tyendinaga asserted that their rail blockade would be removed as soon as Wet’suwet’en legal observers confirm that the RCMP is off their land. On February 24, the day of the Mohawk blockade removal, Indigenous Services Minister Miller repeated that the Liberal government was "still open for dialogue" and willing to negotiate.

On February 27, two days of meetings began between the hereditary chiefs and the Canadian and B.C. governments, represented by Crown-Indigenous Relations Minister Carolyn Bennett and B.C. Indigenous Relations Minister Scott Fraser. The meetings are taking place in Smithers, British Columbia. For the duration of these two days, the RCMP have agreed to stop all patrols on the Morice Forest Service Road, and to shut down their mobile detachment (CISO) in the area. Additionally, Coastal GasLink has agreed to suspend operations during the talks.

See also

• Timeline of the 2020 Canadian pipeline and railway protests
• Enbridge Northern Gateway Pipelines

• Trans Mountain Pipeline
• Treaty Rights
• Indigenous Land Rights
• First Nations
• Indigenous People of Canada
• Oka Crisis
• Delgamuukw v. British Columbia
• Office of the Hereditary Chiefs of the Wetʼsuwetʼen