How a landmark Supreme Court decision 25 years ago is changing the lives of Indigenous people like Randy Kakegamick

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Born to residential school survivors, Randy Kakegamick’s story of addiction, treatment, relapse, and the revolving door in and out of jail can be traced back generations.

His parents’ struggles have shaped his own life, from their time in residential schools and dealing with addiction, to the neglectful way they raised him, says Kakegamick, an Ojibwe-Cree man from Ottawa.

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“If you’re quiet, you’re okay,” Kakegamick recalls his mother saying about the past that has haunted her most of her life. “For the longest time she would always say, ‘we don’t need to talk about it’.”

It’s a silence that haunted him as well, until he found a way to turn his life around in recent years. A turning point for Kakegamick, an Algonquin College student completing a certificate in script writing, was when he found the strength to tell his story in a Gladue report.

Gladue reports were adopted after a landmark Supreme Court of Canada ruling released 25 years ago. The April 23, 1999 decision found the over-incarceration of Indigenous offenders amounted to a full-scale crisis in Canada’s justice system and upheld a federal provision instructed judges to pay “particular attention to the circumstances” of Indigenous offenders and to find alternatives to prison and jail “when it is reasonable to do so.”

The reports, which are mainly completed by publicly funded Gladue writers, examine factors such as the effects of colonialism, residential schools, racism, mental-health issues, addiction, foster care, abandonment, lower education levels, housing shortages and lack of opportunities.

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The reports are given to judges to consider when sentencing offenders who have already been convicted.

“It can be a challenge for me to move forward in life sometimes, but I am. I’m doing it and it was actually with the help of the Gladue report,” says Kakegamick, 46. “A lot of people don’t get these opportunities and a lot of people don’t take them because it’s a hard process. For me it was really challenging to sit with a writer and tell them my life story, to say this is what happened to me, to say I was abused, I was neglected as a child, my parents were terrible.”

While the reports can produce positive outcomes, they still have a long way to go to be widely accessible, affordable, and embraced by courts and governments, says Jane Dickson, a Carleton University law professor and Gladue writer.

There is uneven access across Canada, the system for obtaining reports is dramatically underfunded and access can be a problem if Indigenous heritage cannot be determined, she says. Also, the reports can take months to complete, with offenders often spending the additional time between conviction and sentencing in crowded remand facilities, such as the Ottawa-Carleton Detention Centre.

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“I would like to see the federal government make a firm commitment to the establishment of national standards on Gladue,” says Dickson. “I would like to see a meaningful financial commitment to supporting access to Gladue reports for Indigenous people.”

Despite decades of courts considering what are known as Gladue factors, Indigenous incarceration rates have risen steadily. Ivan Zinger, the federal prison ombudsman, reported late last year that the proportion of Indigenous offenders in federal custody has reached an all-time high of more than 30 per cent of inmates, despite accounting for five per cent of the overall population. He described the increase as “nothing short of a national travesty and remains one of Canada’s most pressing human rights challenges.”

Ottawa criminal lawyer Ewan Lyttle, who defends Indigenous clients on a pro-bono basis, noted that there is a filter of sorts in Ontario where Gladue reports are not commissioned unless the Crown is seeking a sentence of 120 days or more.

Gladue analysts have widely acknowledged that Gladue reports and codified principles — which judges must consider regardless of whether a report has been issued — are not a solution on their own. A big impediment in reducing incarceration rates is the lack of community resources, says Lyttle.

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“I find Gladue is getting applied more and more in courts as the years go by … but the rates don’t go down and from my perspective, the principles are right and the way they are being used in court and employed by judges are right but there are no resources,” Lyttle says. “There are no social programs for Indigenous people to deal with trauma, to deal with substance abuse, to deal with housing, especially ones that are Indigenous-specific, are run by Indigenous people.”

He added that his clients with “crippling addictions that are tied to intergenerational trauma have no place to go” as there is no Indigenous-specific treatment centre in Ottawa.

Kakegamick considers the hard work he put into a Gladue report — along with other factors, such as doing volunteer work and undertaking counselling and treatment for alcohol addiction — contributed to a judge giving him a suspended sentence.

“For me, there were a lot of things falling in place,” says Kakegamick, who counts himself among the fortunate ones, because he says many Indigenous offenders don’t know about Gladue reports. He said he learned out about them because a court worker with the Odawa Native Friendship Centre showed up at the remand centre, looking for Indigenous people to let them know about their options. He says he then pushed his lawyer to request a report for him.

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From there, he started the painful process of telling his story that led to him running afoul of the law, with crimes ranging from theft to intimate-partner violence.

A child of divorced parents and a mother who suffered from alcohol and drug abuse, Kakegamick would find himself wandering the streets of Centretown alone as a child. He says the neglect — and witnessing his parents’ alcohol abuse — led to him being labelled a troublemaker at the age of seven. From elementary school onward, he was involved in multiple altercations with other kids. He began experimenting with drugs and alcohol as a teenager, developing an addiction he battled into his late thirties.

“I remember as a kid wondering ‘oh what’s in the brown bottle? Why do they act so weird afterwards? I want to try it’,” Kakegamick recalls.

He was first sent to juvenile detention in Hull when he was 16 years old. He spent almost two decades in and out of jail. Each time he was released, he would breach probation, he says. The jail sentences got longer as he aged. Becoming a good father to his son, now 15, was a major motivation for turning his life around. Kakegamick’s last time before a judge was about seven years ago. He has returned to court periodically, but to volunteer at smudging ceremonies opening sessions at the Indigenous Peoples’ Court, which opened in 2017 and is housed in the Ottawa courthouse on Elgin Street.

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The courts, also known as Gladue courts, are another outcome of the Gladue decision and exist in several provinces.

As a traditional singer, drummer and dancer, Kakegamick also participates in Indigenous events, such as powwows. He continues to work on his relationship with his mother who, he says, is beginning to talk about her past.

“Over the past seven to 10 years, she’s been opening up more,” he says. “I think it’s because you see a lot of it now. Other survivors are starting to make their voices known. What’s unfortunate is that we’re losing a lot of them now. The survivors are dying. Old age. Natural causes. So a lot of those stories are being lost, which is unfortunate. And, yeah, this is why I kind of speak out a lot.”

Sofia Donato and Ali Adwan are journalism students at Carleton University.

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