Work still needed years after landmark ruling on Indigenous sentencing: lawyers

The Supreme Court of Canada’s Gladue decision in 1999 said judges must take note of systemic or background factors when determining a sentence for Indigenous offenders in order to address their “serious overrepresentation” in prison. (Shutterstock photo)

VANCOUVER — Nearly two decades after a landmark court decision on sentencing Indigenous offenders, lawyers say there are no national standards for implementing the ruling and too many Aboriginal people are still behind bars.

The Supreme Court of Canada’s Gladue decision in 1999 said judges must take note of systemic or background factors when determining a sentence for Indigenous offenders in order to address their “serious overrepresentation” in prison.

Indigenous people often feel removed from the justice system, said Mitch Walker, vice-president of the Gladue Writers Society of British Columbia, which promotes the best practices for writing Gladue reports that lay out the Indigenous background of an accused in pre-sentencing.

“For First Nations people, justice just kind of happens to them. It doesn’t happen with them, it doesn’t happen for them, it doesn’t happen for their benefit,” he said. “And their interactions with the justice system have historically and contemporaneously been so negative that there’s a lot of fear.

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That may change if a Gladue report is written in their case, which requires getting in touch with an offender, their family and community, Walker said.

“It’s a very delicate and awkward conversation to phone somebody and introduce yourself ? and then proceed with some very, very personal questions, questions that they wouldn’t discuss with their closest friends and family members,” he said.

The accused is also interviewed and it’s often the first time they think deeply about how they ended up in trouble, Walker said.

“Gladue report writers are sometimes the first contact that these individuals have with the criminal justice system who aren’t immediately making them feel as though they are a criminal, making them feel as though they’re being listened to.”

But some in the justice system say the reports have been underutilized.

Signa Daum Shanks, a lawyer and director of Indigenous outreach at Osgoode Hall law school in Toronto, said Gladue principles should be applied whenever an accused has Indigenous heritage, but it’s “stunning” how often lawyers decide the background information isn’t relevant to a particular case.

Courts are consistently provided with context about an accused, she said, such as if someone is struggling with English. But that doesn’t always happen with Indigenous people, despite the Supreme Court ruling, Daum Shanks said.

It’s “gut-wrenching” that the data in those reports isn’t making its way into courtrooms, where judges could use it to tailor sentences that could help prevent crimes from happening again, she said.

Gladue principles are not intended to add an element of sympathy in sentencing an Indigenous person.

“It’s about making sure some things don’t happen again.”

There are still significant misconceptions about what Gladue principles are, even among people working in the criminal justice system, said lawyer Michelle Brass.

“It’s not a get-out-of-jail-free card, for example. It’s not a creation of a second justice system,” she said.

Brass is working with the Native Law Centre at the University of Saskatchewan to research how and when the reports are used by looking at about 250 cases across that province. Part of the project’s aim is dispelling misunderstandings by providing education for those in the justice system.

At stake, Brass said, is the continued overrepresentation of Indigenous people in jails and prisons.

Data from Correctional Service Canada shows Aboriginal people made up about 18 per cent of all federal inmates in 2001, but accounted for less than three per cent of the country’s total population.

Indigenous offenders made up 23 per cent of the total offender population last year. About five per cent of people across the country identified as being Aboriginal in the 2016 census.

For years, there’s been a substantial need for more Gladue reports across B.C., said Mark Benton, executive director of the Legal Services Society, the province’s legal aid office.

The society traditionally used non-governmental funding for the reports and, with each report costing about $1,740 and taking about eight weeks to complete, there was only enough money for about 80 per year.

Funding was dedicated to writing Gladue reports last year by the province, Benton said.

In 2017, there were 131 Gladue reports written in B.C. and about 400 will be produced this year.

Benton said he was concerned about the system a year ago, but now there’s real progress being made in B.C.

“I believe that we’re headed in the right direction now and I believe there are people who are in a position to make the needed changes who are committed to doing that,” he said.

Some other jurisdictions are focusing on better utilizing Gladue reports, too.

Earlier this year, Yukon set aside $530,000 for a pilot project to train writers based in the territory to produce standardized reports and cover the costs of writing them.

Reports had previously been written by untrained personnel, which led to uneven quality and some reports were tossed from court, causing delays in the justice system, the government said.

“Yukon First Nations are over represented in the criminal justice system and it is our hope that a Gladue report program will assist in raising awareness and understanding about the unique systemic factors faced by First Nations, while recommending restorative and healing options,” Grand Chief Peter Johnston of the Council of Yukon First Nations said in a statement.

But there’s still work to be done when it comes to implementing the Gladue decision, Benton said, including the lack of national standards for the reports.

The ruling affects all of Canada, he said, so there’s an expectation for a common approach across the country.

The federal Justice Department said it’s up to each jurisdiction to determine how to implement the Gladue principles in the Supreme Court decision.

The department runs the Indigenous justice program, which includes projects that raise awareness about the Gladue decision.

Many details in Gladue reports could be standardized, Benton said, including what they should include, who’s qualified to write them and how long they should take to prepare.

“As always in Canada, there is some benefit to a diversity of approaches when it comes to how justice works,” he said. “But I think after basically 20 years since the Gladue decision, it would be timely for a consolidation of the best practices to come together. And I think many of us are hoping that the federal government will take that on.”