An Indispensable Tool for Defence Counsel Acting for Indigenous Clients
There have been several barriers to the implementation of Gladue since the Supreme Court of Canada interpreted section 718.2(e) of the Criminal Code in 1999 and crafted an ameliorative decision intended to counter the overrepresentation of Indigenous peoples in the criminal justice system. R v. Gladue1 directs all judges to consider the unique background factors that may have played a part in bringing a particular Indigenous offender before the court and to consider restorative justice approaches to sentencing as an alternative to incarceration. The decision acknowledged that higher rates of Indigenous criminality stem from intergenerational impacts of colonization, ongoing systemic discrimination, and a fundamentally different world view of redressing harms held by Indigenous peoples.
In R v. Ipeelee2, decided in 2012, the court attempted to address the resistance and misapplication of Gladue that became apparent in the jurisprudence over the previous decade and that was contributing to a checkerboard application of the principles. Ipeelee restated in stronger terms that Gladue applies in every circumstance where a person self-identifies as Indigenous, including for violent offences. The court further reiterated that counsel has a duty to bring individualized information before the judge and referred to Gladue reports as an “indispensable tool” with respect to how that information could be brought before the court.
The Legal Services Society (“LSS”) Indigenous Services Manager, Rhaea Bailey, describes Gladue reports as comprehensive reports that “tell someone’s sacred story, which for some people uncovers their cultural identity and family connections that may have been previously unknown; allows a person to reclaim their history by providing an opportunity for understanding and awareness of the intergenerational impacts of colonialism; and provides a way forward by setting out a healing plan, which includes restorative justice options intended to restore the balance in that person’s life.”
Ms. Bailey said that funding for Gladue reports in BC was generously provided by the Law Foundation of British Columbia from 2011 to early 2017. However, as a result of an increase in federal and provincial government funding, LSS was able to increase the number of reports they could fund for legal aid clients, and reallocate Law Foundation monies to other Indigenous legal aid services. With this new funding, 131 reports were prepared in 2017 and LSS hopes to fund 300 Gladue reports for this fiscal year. Ms. Bailey indicated that 213 reports have been authorized to date and she remains optimistic about reaching the target of 300. To assist legal aid defense counsel in making Gladue submissions, LSS introduced a new tariff item 3 in May 2018 and is now compensating lawyers to prepare and make Gladue submissions for bail or sentencing hearings with or without a Gladue report.
The process for obtaining a Gladue report is streamlined4 and several publications5 have been prepared by the LSS to assist counsel in fulfilling their duty to their client and the court in making Gladue submissions. Senior defence counsel, Rob Dhanu from the Fraser Valley said that Gladue reports are the “single most valuable tool” to counsel acting for Indigenous clients in sentencing and bail hearings. That said, among the barriers to the implementation of Gladue, the one within defence counsel’s control, is requesting a Gladue report and assisting the court in arriving at a more just outcome for their Indigenous clients.
1  1 SCR 688 | ↩
2 2012 SCC 13 | ↩
3 bit.ly/bt0219p9-1 | ↩
4 bit.ly/bt0219p9-2 | ↩
5 bit.ly/bt0219p9-3 | ↩
Frances Rosner is a Métis lawyer working as a sole practitioner in Vancouver.