Prince Rupert, B.C.-Tne Prince Rupert, B.C. court system recently encountered a new defense tactic. A man was being prosecuted for creating child pornography and sending graphic pictures and videos of himself to young girls.
The defendant's plea? That he should get leniency because he said he was of Indigenous heritage. The defendant was not raised Indigenous, nor had he pursued DNA testing or researched family genealogy, but he said he self-identified as Métis. He had simply, recently, contacted a relative who informed him that a great-great-grandmother was a member of the Haudenosaunee Confederacy, also known as Six Nations (Iroquois) of Montreal.
The man's Métis self-identification meant he was entitled to ask for a Gladue report.
A Gladue report is a type of pre-sentencing and bail hearing report that a Canadian court can request when considering sentencing an offender of Indigenous background under Section 718.2(e) of the Criminal Code.[1]
During the 1970s, Government of Canada reported that Indigenous people were overrepresented in the justice system. In 1996, the Canadian Parliament introduced an amendment to the Criminal Code of Canada, section 718.2(e), in Bill C-41, to help reduce the rate of Indigenous people entering the justice system. This sentencing principle enforces deliberation for Canadian Judges; considering other sentencing options, rather than imprisonment-based upon factors of specific life, social and cultural circumstances of Indigenous offenders
"The existing overemphasis on incarceration in Canada may be partly due to the perception that a restorative approach is a more lenient approach to crime and that imprisonment constitutes the ultimate punishment," the Supreme Court said in Gladue. "Yet in our view a sentence focused on restorative justice is not necessarily a 'lighter' punishment."
Therefore, the Gladue decision requires judges to pay "particular attention" to the circumstances of Indigenous offenders to achieve a "truly fit and proper sentence."
The top court calls on judges to consider restorative justice-"the needs of the victims, and the community as well as the offender"-as well as "traditional Aboriginal sentencing approaches" as alternatives to incarceration.
Since the self-proclaimed Métis offender asked for Indigenous sentencing evaluation, Judge David Patterson was required to look deeper into the man's life experience to consider factors like poverty and the impact of residential schools, colonialism, racism and loss of connection with Indigenous heritage.
While the judge could not rule on whether the man actually was of Indigenous heritage or whether it was just family folklore, in this case, Patterson ruled, "There is no evidence that [the defendant] having a paternal great-great-grandmother who was a member of the Haudenosaunee Confederacy in any way, shape, or form . . . contributed to his child pornography addiction," Patterson wrote. "Simply put, there is nothing to equate [the defendant's] life experience with that of the Métis people specifically or Indigenous peoples in Canada generally."
He said the defendant had nothing in his life experience as a newly self-identified Indigenous person to lessen the "moral blameworthiness" he bore for his crimes.
However, Patterson noted, "A tsunami is coming; driven by the desire of non-Indigenous people to get what they perceive to be the benefits of identifying as Indigenous . . . I am of the view that the only way to give meaning to the Supreme Court of Canada's teaching . . . is for judges to be alive to the issue of Indigenous identity fraud and require some proof that satisfies the court that the person being sentenced is entitled to be sentenced as an Indigenous person."
Patterson called the problem of "trying to define who is entitled to self-identity as Métis in criminal court" a "quagmire." Metis lawyer, Jean Teillet agrees.
"I think the tsunami isn't just coming, I think it's actually here already, and it's showing up everywhere across the country in all of our institutions, and I think we ignore it at our peril," said Teillet to CBC News. Teillet was the author of a report for the University of Saskatchewan on Indigenous Identity Fraud (available at https://indigenous.usask.ca/documents/deybwewin-taapwaywin-tapwewin-verification/jean-teillet-report.pdf).
Teillet wrote in her report: "Personal gain and material advantage are the most obvious answers to the question of why individuals falsely assume an Indigenous identity. They gain an education, funding, access to professional programs, jobs, prestige, and money, and there are a lot more of these opportunities available now than in the past."
And now the courts are having to deal with non-Indigenous or previously-not-known-as-Indigenous offenders claiming benefits meant to help Indigenous citizens.
Teillet noted that no one was expecting identity fraud when the court ruled on Gladue in 1999. But perhaps it's time to put some more parameters on the issue.
Teillet told CBC News that judges shouldn't decide who is Indigenous-but they can determine if offenders are providing the kind of evidence demanded in every other part of the criminal process. And an "old family" story or a membership card obtained for a fee doesn't meet the bar.
