Across BC and in the Yukon, we have grown all too familiar with the dangers posed by a toxic drug supply. It has been seven long years since, in April of 2016, fentanyl caused a sharp and sudden increase in the number of deaths by drug poisoning.

Though BC moved quickly to declare a public health emergency (a step taken more recently by the Yukon Government, and by several First Nations Governments in Yukon), the crisis has stretched on, and the death toll has continued to rise.

The statistics are numerous, heartbreaking, and inexcusable. They paint a grim picture of the many ways our health and social systems have failed to care for those most at risk.

As the toxic drug crisis has continued to inflict tremendous harm and loss on our communities, we’ve redoubled our efforts to prevent and respond to overdoses among those we work with.

Connective continues to practice harm reduction, with increased house checks and Naloxone training for staff. We have also:

• Built safe consumption rooms in our Vancouver and Prince George supportive housing programs, and drafted renovation plans to install the same in Surrey.

• Worked with community partners in Abbotsford to create a satellite site for Narcan kit distribution.

• Made fentanyl test kits available at multiple program locations and arranged accessibility to testing (through partner organizations) at many more.

• Provided Nasal spray naloxone and administration training to Community Inclusion staff and Home Share providers, as an alternative to injection-based delivery.

• Installed Brave Motion Sensors at a number of our programs.

“One day when I was working, one of our tenants got an overdose. In the beginning, I was very afraid, because that’s the first experience like that I’ve had in my life. I was really anxious. And for a moment, I was stuck.

But, as soon as I came back into my normal mind, I just gave them the Naloxone, and I called 911 right away. I think I saved that tenant’s life…That was an unforgettable memory, for me.

I was really nervous, but after that, it was a great feeling. And I’m prepared now if I have that experience again.”

The theme for 2023’s International Overdose Awareness Day is ‘Recognizing those people who go unseen.’

It’s a chance for us to call attention to those who are affected by overdose, but who aren’t captured in the heartbreaking statistics we often see reported. It includes everyone from the family and friends whose lives are forever changed by tragedy, to the health care and social service workers who, like in the story above, play instrumental roles in responding to crisis.

This year’s campaign asks us to use the hashtag #weseeyou to amplify the voices and experiences of these individuals. It calls on us to acknowledge and support the people in our communities who go unrecognized by raising awareness of the hidden impacts of overdose, promoting education of overdose response, and reaching out to politicians to make lasting, lifesaving policy changes.

Learn more by visiting overdoseday.com.

Eddie was serving a life sentence at Millhaven Maximum Security Prison in Bath, Ontario. For much of that sentence he had been in and out of segregation. In June of 1974, Eddie was housed in a working unit, in general population. Eddie inquired about being transferred to a non-working unit and was told to submit a refusal to work form.

Eddie submitted this form, but rather than being transferred he was instead taken back to segregation. Later, he was punished with 30 days in solitary confinement. When his 30 days were completed, he was again taken back to segregation.

These events help to highlight the punitive and often retaliatory nature of the justice system.

On July 28, Eddie submitted a request to be released from segregation. His request was received and approved within three days, but at no point between July 31 and August 10 was this communicated to Eddie. Familiar with the usual process for these requests, the extended silence would have suggested that his request had been denied.

In the early morning hours of August 10, Eddie took his own life. Though that decision was his own, it was the justice system’s carelessness and disregard for basic human wellbeing that led to his death.

On the first anniversary of his passing, those incarcerated at Millhaven refused to work and held a hunger strike in Eddie’s memory. These types of actions are the only real way to exercise civil disobedience in prison, but they are often met with punishment. Many involved in the planning of this day were placed (and remained nearly a year later) in segregation.

A Coroner’s Inquest into Eddie’s death produced several recommendations. Over the years that followed this and other similar inquiries, few recommendations were followed.

In May of 1976, another individual died while in segregation at Millhaven. This death became another spark to light the flame of what would become PJD.

Robert ‘Bobby’ Landers began his sentence at Archambault Maximum Security Prison, near Montreal, Quebec. It was there that he became outspoken about prisoners’ rights and was active in helping to organize a strike for better conditions. Shortly before the strike, he was involuntarily transferred to Millhaven. It was hard to view this transfer as anything other than retaliation, and an attempt to disrupt his organizing efforts.

At Millhaven, Bobby was placed in solitary confinement. The night before he died of a heart attack, he tried to seek medical attention but the panic button in his cell was nonfunctional. It was later revealed that the receiver in the guard’s tower – for all panic buttons – had been deactivated.

His cries for help, and those of 3 other prisoners on his behalf, were largely ignored by the guards and nurse stationed just down the hall.

At the investigation into his death, the attending specialist confirmed that Bobby should have been receiving care in an ICU, and not left to suffer in solitary confinement.

In August of that year, PJD committees were formed in multiple provinces and thousands of individuals in prisons across the country took part in a one-day hunger strike. In 1983 the day of action spread to France, and by the mid-1990s the movement was in the United States, and additional parts of Europe.

Before the first Canadian prison was built in 1835, confinement was not used as punishment. After this point, however, prisons became a major instrument of repression. The creation and operation of prisons would go on to become one of the country’s largest growth industries. The statistics surrounding prisons are deeply troubling:

• As PJD was gaining steam in Canada in the mid-1970s, the rate of suicide among those in prison was 12% higher than the national average for the general population.

• Rates have dropped over the years, but suicide is still a leading cause of death for those who are incarcerated.

• Self-mutilation in institutions occurs at a rate twice that of in the public, and that number is even higher in women’s prisons, where their specific needs for treatment and programs are often overlooked.

• Today there are nearly 40,000 people in prison at any one time, and nearly 3bn dollars per year goes into making this a reality.

• Looking at the most recent data (from 2020-21), Indigenous adults accounted for about one-third of all adult admissions to provincial and territorial (31%) and federal (33%) custody, while representing only 5% of the Canadian adult population.

• Breaking these stats down, they are even more dramatic for Indigenous youth, who account for only 8% of the population but roughly 50% of youth admissions to custody.

• We see these same skewed ratios play out with women in the prison system, as well as with other marginalized groups.

Diving into these and other statistics paints a bleak portrait of the state of the justice system in Canada, and a compelling case for sweeping reforms.

Through the dedication and hard work of countless individuals, many hard-fought victories have been won. The 1970s was a very active period for prison justice, and saw several major achievements and advancements, including the abolishment of capital punishment, and the establishment of programs for Indigenous prisoners.

Work has continued to this day, but the system has a long way to go.

Gladue rights stem from the 1999 SCC’s decision in Gladue, which required the court to interpret the scope of section 718.2(e) of the Criminal Code. This provision was enacted in 1996 and states that,

“All available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders”

 

Essentially, this provision requires the courts to consider incarceration as a last resort. The Gladue case dealt with interpreting the scope of consideration for the circumstances of Indigenous offenders. The SCC made clear that section 718.2(e) applies to all Indigenous people before the court “wherever they reside, whether on- or off-reserve, in a large city or a rural area” (para 91). The court determined that the provision should be applied broadly and alternatives to incarceration must be considered for all cases involving Indigenous accused or offenders because,

“Its purpose is to ameliorate the serious problem of overrepresentation of aboriginal (sic) people in prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing” (para 93).

 

Other high-profile cases have continued to help shape how Gladue rights work today. For example, in R v Ipeelee (“Ipeelee”), the SCC clarified that Gladue rights must be considered regardless of the severity of the offence. In other words, Gladue principles must be considered in bail, sentencing, appeals, parole, long-term offender, and dangerous offender hearings.

While not exhaustive, the BC First Nations Justice Council (“BCFNJC”) lists the following as common Gladue factors:

• Impacts of colonialism
• Feelings of loneliness, abandonment, dislocation from culture, community, and family
• Loss of access to ceremonies and healing practices
• Racism and systemic discrimination
• Lack of opportunity and isolation of community
• Housing shortages and homelessness
• Residential Schools
• Foster care, adoption, 60s scoop
• Victimization/offenders of violence
• Missing and murdered Indigenous women and girls
• High rates of incarceration
• Lower education levels
• Lower-level employment, unemployment, and poverty
• Fetal Alcohol Spectrum Disorder (FASD)
• Problematic substance use
• Mental health related issues

Gladue reports are powerful documents that assist judges in considering how the impacts of colonialism have played a part in the reasons Indigenous people appear in court, as well as provide guidance on the types of sentencing procedures and sanctions that may be appropriate in the circumstances.

Each Gladue report contains an individualized healing plan designed to address the specific needs of each client. By recognizing the impacts of intergenerational trauma tied to colonialism, Gladue reports seek to help Indigenous people heal in ways that are meaningful to them and their families. Gladue reports also support First Nations in using their laws and legal traditions in the administration of their own justice processes for their nation members.

All self-identified First Nations, Inuit, and Métis people who are accused or convicted of a crime are eligible to get a Gladue report, regardless of their Indian Act status, place of residence, or severity of the crime. However, as stated in Ipeelee, there are ways other than a Gladue report for the court to get access to Gladue information.

Recently, in April 2021, the BCFNJC took over Gladue services from Legal Aid BC. Gladue information, and how it is collected, reported, and disseminated, is now in the hands of an Indigenous-led organization. The transition of Gladue Services to the BCFNJC removes some barriers related to requesting a Gladue report. For example, any First Nations, Métis, or Inuit person can now request a Gladue report, whether they have retained a private lawyer or are a client of Legal Aid BC.

Where possible, the best way for someone to request a Gladue report is through their defense lawyer or, if they are self-represented, in court through Crown counsel. Otherwise, someone who wants to access Gladue services can be directed to the Gladue Services Department at the BCFNJC, where they can request a Gladue report writer online or find the contact information for the Gladue Services Coordinator to ask questions.  

As Connective staff and volunteers already know, it is vitally important for service providers to be person-centred. As one of Connective’s core values, being person-centred means that,

“We adapt our approach to the individual and use empathy and compassion in all of our interactions.”

When serving Indigenous clients, it is essential to understand the individual’s circumstances within the context of colonialism and systemic discrimination to provide meaningful person-centred support.

The Truth and Reconciliation Commission’s (“TRC”) Calls to Action include a call for a commitment from all levels of government to end the overincarceration of Indigenous Peoples. The TRC states that reconciliation “is a multi-generational journey that involves all Canadians.” As such, while not a government actor, non-Indigenous service providers can contribute to the work of ending the overincarceration of Indigenous peoples by helping enhance awareness and access to Gladue rights. For service providers who regularly provide referrals for Indigenous people seeking legal advice or representation on criminal issues, knowing that Gladue rights exist and where to refer people can enhance an individual’s ability to assert their Gladue rights.

Over 20 years have passed since the Gladue decision, and yet the number of Indigenous people incarcerated in federal prisons has reached an all-time high. As stated by the TRC,

“A failure to provide sufficient and stable resources for the community and treatment programs that are necessary to implement Gladue and Ipeelee helps explain why those decisions have not slowed increasing Aboriginal overrepresentation in prison” (TRC Executive Summary, 173).

 

Without adequate resourcing of restorative alternatives to incarceration or adequate access and funding of Gladue reports, Gladue’s reach cannot be fully realized.

Further, Gladue has mainly been used in sentencing so far, but the BCFNJC sees Gladue rights as applicable throughout the criminal justice process. The BCFNJC explains that,

“Gladue principles are about recognizing that the social determinants of crime, aka Gladue factors, have had a disproportionate impact on Indigenous people in Canada. They apply across the entire criminal justice system.”

While an important legal tool, Gladue is not without critiques and should not be seen as the be-all and end-all solution to the overrepresentation of Indigenous Peoples in Canadian prisons. The disproportionate rates of Indigenous people involved in the criminal justice system is a complex problem caused by the far-reaching impacts of colonization; ending this crisis requires a host of social and legislative changes at all levels of Canadian society. Gladue rights are one piece of this process and the transfer of these services to the BCFNJC will expand their influence.

This blog post has provided an overview of Gladue principles and their relevance to justice service providers. There is much more to know!

Here is a list of sources where you can go to do further reading:

• Gladue Services, BC First Nations Justice Council
• Gladue and You, Legal Aid BC
• Gladue Principles, BC Aboriginal Legal Aid
• Spotlight on Gladue: Challenges, Experiences, and Possibilities in Canada’s Criminal Justice System, Research and Statistics Division Department of Justice

About the BC First Nations Justice Council

The BCFNJC represents First Nations in BC on justice-related issues to bring about transformative change to the legal system. Through the BC First Nations Justice Strategy, the council provides an ambitious roadmap to both reform the current Canadian justice system and revitalise Indigenous legal traditions and systems of justice.

About Our Partnership

One component of the ongoing partnership between Connective and BCFNJC has included hiring a summer law student to work on a variety of projects that bridge the work of the two organizations—including writing this blog post. This position is generously funded by the Law Foundation of British Columbia’s Public Interest Work Placement program. Kaymi Yoon-Maxwell (they/them/she/her) is a Korean/Scottish settler and University of Victoria Faculty of Law student in the joint degree program in Canadian Common Law and Indigenous Legal Orders (JD/JID).