When Gladue Reports Fail - Donna Malcolm

On June 9, 2021, the Manitoba Court of Appeal heard the appeal of Marlon Elijah Whincup. The issue before the court was one of mathematics. Whincup had been serving an imprisonment of 30 months for an incident in which he stole an ambulance in a methamphetamine-induced psychosis. The sentencing judge made an error resulting in a 30 month sentence instead of the intended 24. The Court confirmed that the sentencing judge had correctly considered Gladue factors – challenges experienced by Indigenous people taken into account as mitigating circumstances in an attempt to offset the effects of colonization. The appeal was successful and Whincup’s sentence was reduced accordingly. On paper, the Gladue report had served its purpose. It ensured that the imposed sentence was appropriate in light of relevant circumstances; particularly Whincup’s personal background. It had the effect of slightly reducing the amount of time one Indigenous offender would spend imprisoned, which, in turn, did its part to reduce the overrepresentation of Indigenous people amongst the incarcerated. What it did not do, however, was have any positive effect on the life of the offender. Six months after the Court of Appeal hearing, 31-year-old Marlon Whincup, known as “Picky” in his home community, would meet an unfortunate end.

Paramedics were traveling by ambulance in the Maples area of Winnipeg in November 2017 when they noticed Marlon Whincup “struggling to get out of a large recycling bin.”[1] Upon pulling over to assist, Whincup emerged from the bin completely naked. After approaching the paramedics, he got into the ambulance and began driving. What resulted was a police chase, “sometimes at very high speed and also in the wrong direction.”[2] Eventually, Whincup would crash the ambulance into a planter and be chased on foot, ultimately being tasered by police before being detained. The crash caused damage to the building he crashed into and destroyed the $200,000 ambulance. It was determined that at the time of the incident, Whincup’s mental state was “being affected by a combination of methamphetamine intoxication and methamphetamine-induced psychosis.”[3] His intoxication, criminal record and risk to public safety would later be taken into consideration as aggravating factors for sentencing. As mitigating factors, the sentencing judge considered Whincup’s background, addictions and mental health status, and Gladue factors.

Gladue reports were the result of the 1999 Supreme Court of Canada case of R. v. Gladue. In that case, the Court heard the appeal of an Indigenous woman named Jamie Gladue who had pled guilty to manslaughter for killing her common law husband. She was sentenced to three years’ imprisonment for the crime. Despite section 718.2(e) of the Criminal Code calling for particular attention to be paid to the circumstances of Aboriginal offenders in sentencing,[4] the court held that no special circumstances warranted the application of the Code in this case. Part of the rationale provided was that the court interpreted the section as having no application to Aboriginals not living within an Aboriginal community. This decision was unanimously overturned by the Court of Appeal, and the Supreme Court agreed that such a narrow interpretation of the section was inappropriate. The Supreme Court held that “The class of aboriginal people who come within the purview of the specific reference to the circumstances of aboriginal offenders in s. 718.2(e) must be, at least, all who come within the scope of s. 25 of the Charter and s. 35 of the Constitution Act, 1982.”[5] Aboriginal offenders, the Court held, continue to suffer from the effects of systemic and direct discrimination, dislocation, colonization, and poor socioeconomic conditions. What results from these challenges are Aboriginals being overrepresented in the justice system and incarceration, as well as an increase in incidence of crime and recidivism. Additionally, they are “less likely to be ‘rehabilitated” because the internment milieu is often culturally inappropriate and, regrettably, discrimination towards Aboriginal offenders is often rampant in penal institutions.”[6] The Court held that when sentencing Aboriginal offenders, a holistic approach should be used. Sentencing judges should consider the details surrounding the offence, as well as the unique circumstances of the offender as an Aboriginal person. “Sentencing must proceed with sensitivity to and understanding of the difficulties aboriginal people have faced with both the criminal justice system and society at large.”[7] This should be done whether the offender resides in an Aboriginal community or not.

In 1994, Indigenous people made up 12% of the population of Manitoba but comprised over 50% of incarcerated people. Nationally, around the same time, 2% of the population was Indigenous, but Indigenous people comprised 10.6% of people incarcerated.[8] In Gladue, the Court recognized that this overrepresentation was not because Indigenous people committed more crime, but because they found themselves incarcerated more frequently than their non-Indigenous counterparts. There are many systemic factors that contribute to this unfortunate phenomenon. Colonization of Canada and the attempted genocide of the pre-contact Indigenous people who resided here have had lasting and far-reaching impacts. Government mandated and Church implemented residential schools saw entire generations of Indigenous children stolen from their families and stripped of their cultural identities and language. Torture and abuse were rampant at the institutions whose purpose was to assimilate the children into non-Indigenous society, effectively erasing any Indigenous elements from Canada altogether – this was genocide. Entire generations suffered and continue to suffer today as a result of intergenerational trauma. This, along with the legacy of colonization and marginalization, has led to a situation for Indigenous people in which they disproportionately suffer from alcohol and substance abuse, poor socioeconomic circumstances and overincarceration. “The unbalanced ratio of imprisonment for aboriginal offenders flows from a number of sources, including poverty, substance abuse, lack of education, and the lack of employment opportunities for aboriginal people.”[9] The consideration of Gladue factors is meant to mitigate sentencing as an attempt to offset the challenges faced by Indigenous people that lead to their overrepresentation in the justice system and among the incarcerated.

While Gladue reports can have the effect of keeping individual offenders incarcerated for shorter periods, the system is not perfect. The process is not standardized, and the amount of time spent on the reports varies by province based on budget and other factors. Where Gladue reports fail is in addressing the circumstances behind the root of the issues faced by Indigenous people. Reducing sentences for Indigenous offenders, while appropriate due to the challenges faced by the individual, does nothing to alleviate or address the issues faced by the offender; it does not address the cycle of intergenerational trauma that they are a part of. The offender still lives with any personal trauma they may have, including abuse suffered, poverty, substance abuse, and unfortunate family history.

That was the case with Marlon “Picky” Whincup. Shortly after being released from jail, Whincup fell back into the cycle of methamphetamine abuse. The slightly shorter sentence he served had done nothing to fix the neglect he experienced as a child growing up in Sandy Bay First Nation or the abuse he suffered throughout his life. In another suspected methamphetamine-induced psychosis, Whincup began walking down Highway 16 near Westbourne, Manitoba. A man and woman driving by stopped to offer him a ride. Without provocation, Whincup attacked the driver, stabbing him. After the injured driver pulled over, Whincup ran from the vehicle. After a short search by RCMP officers, Whincup was located nearby, attempting to enter other vehicles. The officers confronted Whincup, who was found was carrying a knife. Whincup ended up being shot by the officers, and he was pronounced dead at the scene. In this case, the Gladue report did what it was meant to. However, it did nothing toward the larger goal of reconciliation.

[1]R v Whincup, 2021 MBCA 64 at para 5. [2]Ibid. [3]Ibid at para 8. [4]Criminal Code, RSC 1985, c C-46, s 718(2)(e). [5]R v Gladue, [1999] 1 SCR 688 at para 90. [6]Ibid at para 68. [7]Ibid at para 81. [8] Jonathan Rudin, “Aboriginal Over-representation and R v Gladue: Where We Were, Where We Are and Where We Might Be Going” (2008) 40 SCLR 687 at 690; citing House of Commons, Standing Committee on Justice and Legal Affairs, Minutes of Proceedings and Evidence, no. 62 (November 17, 1994) at 62. [9]Gladue, supra note 5 at para 65.