Lacks Political Will
When sentencing Indigenous offenders in Canada, judges must consider the unique background factors that played a role in bringing the particular offender before the court and, where possible, consider alternatives to incarceration. This direction came from the Supreme Court of Canada in its 1999 R. v. Gladue decision,1 and was intended to counter the overrepresentation of Indigenous Peoples in our prisons. The court acknowledged the significant harms that continue to impact Indigenous Peoples and communities brought about by colonization. It further acknowledged that systemic discrimination leads to disparate outcomes for Indigenous offenders involved in the criminal justice system.
Since that decision, several challenges have arisen in implementing Gladue, including how the unique history of an offender is brought before the court.2 In R v. Ipeelee in 2013,3 the court reiterated in stronger terms the need for sentencing judges to do their jobs differently for Indigenous offenders in every instance and it referred to Gladue reports as an “indispensable sentencing tool” to judges in carrying out their duties under section 718.2(e) of the Criminal Code.
Gladue reports are specialized pre-sentence reports prepared by writers (often Indigenous) that have an in-depth understanding of Indigenous history and impacts from colonization. The report process involves contacting several family and community contacts to gather information about an offender’s particular history, and writers devise healing plans aimed at addressing the factors that brought the offender before the court as an alternative to jail.
In 2011, the Legal Services Society (“LSS”) developed a Gladue Report Pilot Project to address the gap in implementing Gladue. In its evaluation of the pilot, it found that Gladue reports made a difference in sentencing outcomes, with fewer and shorter custodial sentences for offenders that benefitted from a report versus the sample group that did not.4 In the 2016/17 fiscal year, the LSS funded 79 reports for its clients.5 That is a mere drop in the bucket relative to the number of Indigenous offenders being sentenced every day in BC. That is, only Indigenous offenders that qualify for legal aid, and of that group, only those that are approved will receive a report. Funding is a key barrier to implementing Gladue – yet judges are required to consider the information found in Gladue reports.6
Several lawyers throughout BC have sought orders from judges for Gladue reports, which are far more detailed than a Gladue component of a standard pre-sentence report.7 Some have been successful in obtaining the order but if not funded by the LSS, the report does not get prepared because there are no other sources of funding. Other judges have taken the position that they do not have the jurisdiction to order the Attorney General to pay for Gladue reports. Retired BC Provincial Court judge and proponent of Gladue, Cunliffe Barnett J., argues that trial judges do have jurisdiction under section 721(4) of the Criminal Code to obtain particularized pre-sentence reports and he relies on a 2006 Ontario Court of Appeal decision, R. v. Kakekagamick,8 for an appellate court’s jurisdiction to order Gladue reports. It is clear from the caselaw in BC, at present, that there is a lack of political will by the province to fund the writing of Gladue reports despite the requirement for judges to consider the information contained in them.
-  1 SCR 688 | ↩
- Kyle Edwards, “Why Gladue has not lived up to its promise,” Maclean’s (October 18, 2017) | ↩
- 2012 SCC 13 | ↩
- The Legal Services Society 2016/17 Annual Service Plan Report | ↩
- The Legal Services Society, Gladue Report Disbursement – Final Evaluation Report | ↩
- R v. McCook 2016 BCPC 0001, paras. 51-78. | ↩
- R v. Smith, 2013 BCCA 173,
R v. Bill, 2014 BCCA 60,
R v. H.G.R., 2015 BCSC 681
R v. C.J.H.I., 2017 BCPC 121 | ↩
- 2006 CanLII 25849 (ONCA) | ↩
Frances Rosner is a Métis lawyer working as a sole practitioner in Vancouver.