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Gladue reports play key role in sentencing Aboriginal offenders, but program off to slow start

Martha May Kahnapace believes in Gladue reports, the court-ordered documents that provides judges with background information on Aboriginal offenders. The B.C.
Martha May Kahnapace believes in Gladue reports, court-ordered documents that provide a judge with background on an aboriginal offender.

Martha May Kahnapace believes in Gladue reports, the court-ordered documents that provides judges with background information on Aboriginal offenders.

The B.C. woman has nothing but praise for the writer who presented a report to the judge at her sentencing after she was convicted of killing her partner during a drunken, drug-induced fight.

"If they're done properly, they're very, very helpful," said Kahnapace, who is a member of the We Wai Kai (Cape Mudge) First Nation, which is based on Quadra Island and in Campbell River. "Judges need to be more open to accepting them."

Kahnapace received a sentence of time served after an 8 year court battle during which two murder convictions were overturned and eventually substituted with a conviction for the lesser offence of manslaughter.

She didn't know until a year after he died that her father, whom she described as being "angry, bitter and an alcoholic," had been in a residential school.

"I didn't understand the way things were at the time because I didn't know a lot about it. I didn't know about residential schools. To me our way of life was normal. If it was someone else looking in, it would be totally dysfunctional and not just the normal way of living."

She spent much of her childhood in foster homes. She become an alcoholic and an intravenous drug user at a young age.

Those details and others were outlined in her Gladue report and were considered by the judge in crafting the sentence.

Patchwork system

Gladue reports are routinely ordered for the most serious offences, but critics say the systems for delivering them in B.C. and elsewhere in Canada are a patchwork at best.

The reports are aimed at trying to deal with the grossly disproportionate number of Aboriginal offenders incarcerated in Canada, a problem that has plagued the country for more than two decades and is on the rise.

Figures on the Statistics Canada website note that, in 2015-16, Aboriginal adults accounted for 27 per cent of provincial and territorial jail admissions, while representing only about three per cent of Canada's population. The incarceration rates for Aboriginal women -- they make up 38 per cent of committals -- are even more worrying.

A recent study by an Ottawa think-tank found that B.C. has one of the most disproportionally high levels of Indigenous incarceration in Canada.

In 1996, Parliament recognized there was a crisis and amended the Criminal Code to direct judges to look at all available sanctions, other than just prison, that are reasonable in the circumstances, with particular attention to Aboriginal offenders.

In 1999, the Supreme Court of Canada released its Gladue decision, which also dealt with a B.C. Aboriginal woman who was convicted of manslaughter. The ruling set out factors that should be considered in the sentencing of Indigenous offenders, urging judges to use a restorative justice approach to sentencing. Restorative justice involves bringing together the victim, offender and some members of the community to discuss the effects of crime and includes such things as Aboriginal healing circles.

In 2012, a second ruling from Canada's highest court basically repeated the message of Gladue, finding that the situation had got worse.

"There's a complete lack of any kind of national strategy in relation to it," said Doug White, co-chair of the B.C. Aboriginal Justice Council and the secretary of the Gladue Writers Society of B.C. "You see across the country, there's a very ad hoc approach to the implementation of Gladue.

"Some provinces do nothing, some provinces take a very impoverished approach. The only two provinces that have anything that is remotely like a significant approach are Ontario and British Columbia."

Slow progress in B.C.

In B.C., the first Gladue reports were written in 2009 following consultation with Aboriginal communities who felt the most important thing to improve their experience in the criminal justice system was to provide the reports.

The Legal Services Society of B.C., which provides legal aid in the province, until recently has been getting about $100,000 in non-governmental funding for Gladue reports from the Law Foundation of B.C. About 75 reports a year were being written, at a cost of about $1,500 a report.

Last year, for the first time, the provincial government kicked in money, providing another $100,000 to the society for the reports.

Increases to legal aid will result in an anticipated $500,000 in funding next year for the reports, which are contracted out to writers around the province. That'll allow several hundred more reports to be written, but it's still scratching the surface as thousands more aboriginals in the system will not get reports.

In the spring budget this year, the B.C. government set aside $750,000 in funding, some of which will likely go to more Gladue reports, but exactly how the money will be allocated has not been determined.

"That money isn't earmarked for the reports necessarily because we're going to work with the Aboriginal Justice Council on what the Gladue process looks like," said Kurt Sandstrom, a B.C. assistant deputy attorney-general.

"Maybe it's an Indigenous organization that takes over some of it, a hybrid between the Legal Services Society and other organizations."

Mark Benton, chief executive officer of the Legal Services Society, said that after a "generation" of waiting for some progress on Gladue, he's optimistic that changes will happen.

Benton, who said he's not directly involved in the discussions surrounding how the $750,000 will be spent, said that despite the long term involvement of his society, they'd be happy if somebody else was to take it over.

"Some of the stuff that's happening right now suggests it may go in that direction, but nothing has been decided yet."

White said he appreciates the work that has been done by the society over the years, but imagines that ultimately it will be in the hands of some kind of Aboriginal justice entity in B.C.

The reports

Gladue factors that judges must consider when sentencing an offender include the effects of colonialism, residential schools, dislocation, isolation and racism.

The reports, which take several months to write and run to about 15 pages, focus on each individual offender and are just one element considered by a judge in deciding on a sentence. As much as possible, the reports are written by people familiar with an offender's Aboriginal community and involve interviews with the offender, family and other community members.

The Gladue Writers Society has a roster of about 15 writers who have been producing many of the reports in B.C.

Pamela Shields, a lawyer who trains Gladue writers across Canada and is the former manager of Aboriginal services at the Legal Services Society of B.C., says that it's been an "uphill battle" from the beginning to get the reports written.

She organized the program that resulted in the first Gladue report being written.

"I realized that the bench and the bar knew very little about Gladue. Rather than doing full reports, which were done in Ontario, the courts were relying on pre-sentence reports from probation officers. It wouldn't delve into Gladue factors."

Shields said they developed policies and because there was very little funding, she had to routinely decline requests for reports.

"We set priorities that were women with children." Female Aboriginal offenders often lose their children to government care if the moms are incarcerated, she said.

As a result, she said, children "grow up in care, they often become parents themselves and it's just a continuous cycle. Gladue reports are one way to break that cycle and provide a remedy and support and acknowledgment and try to stop the kids from going into care and the kids becoming part of the justice system."

Another challenge was finding the people to write the reports, which need to be neutral, accurate and corroborated, said Shields.

"And there's a lot of barriers because it's preferable that the writers are Indigenous themselves but that's difficult. There's a certain level of writing skills that's required for the court."

In 2013, an evaluation of the Gladue pilot project in B.C. found that Aboriginal offenders who received a Gladue report prepared by a Legal Services Society-trained writer had fewer jail sentences than comparable offenders without a report.

The study found that when jail was imposed, those with Gladue reports were incarcerated an average of 18 days compared to 44 days for those who did not benefit from such a report. And offenders being sentenced for a repeat offence received a shorter sentence with a Gladue report in 76 per cent of the cases.

A troubled system

But there were problems with the system, with some defence lawyers raising objections in court.

Terry La Liberté, an experienced Vancouver criminal lawyer, had one Aboriginal client who didn't qualify for legal aid and was therefore facing a hefty bill to pay for a Gladue report of his own.

His client had been sexually assaulted by residential school employee Arthur Plint.

"This man was actually raped. A lot of people say, well, yeah, he's blaming residential school history. This guy was a victim right out front and he would have to pay for a Gladue report. That is of itself offensive in the extreme."

Victoria lawyer Kevin McCullough and his colleague, Tim Russell, have applied for a stay of proceedings for a client arising from delays in getting the court-ordered report.

"The government in this case, the defence says, farted around for six months after the court had ordered a Gladue report. They kept saying, well, go to Legal Services and there's a program to fund it, they'll pay for the Gladue report. And our position has been, no, no, these are court-ordered reports."

There have also been some concerns raised by judges about the quality of the reports.

Currently there is no accreditation or certificate required for the Gladue writers, which means that theoretically anyone can write one.

A pilot program to train Gladue writers through Vancouver Community College was launched earlier this year, in part to provide a more systematic approach to the writing of the reports.

"We'd like to see the Gladue writing be an accredited component to ensure the quality and educational background of those individuals who are writing those reports," said David Wells, dean of the school of arts and sciences at the college. "We know that there is a huge shortfall of people able to write those reports."

A total of 15 people started the college's pilot program, which was free, but only seven completed it in March.

"There were a couple of reasons why people never finished, like the travel was a bit of a problem," said Gord McIvor, the college's dean of continuing studies. "People couldn't afford to travel. Other opportunities came up for people, but all in all seven people did complete that course."

McIvor said that since the program finished, there have been a number of inquiries from institutions across Canada who are interested in the course.

"So we do get these inquiries, but we're not really advertising that we've got this program because we recognize that we're still developing it."

The requirements for the course include Grade 12 English, some knowledge of Indigenous culture and history, knowledge of the Canadian judicial system and awareness of community support services.

The first students in the program included people with various backgrounds such as Aboriginal justice workers, justice and public safety students, native court workers and social service workers. Some travelled from as far away as Thunder Bay, Ont.

Jonathan Rudin, director of the Aboriginal Legal Services in Ontario, says his program makes use of a full-time staff including 14 writers whose sole job is to write Gladue reports.

"Our reports don't say what the sentence should be, because that's part of our realm. We will do a Gladue report for any Indigenous person facing a sentence of 90 days or more if it's requested, " said Rudin, who added the reports were first written in Ontario in 2001.

"If what's being requested is a sentence of less than 90 days, then our Gladue case workers write Gladue letters, which are less lengthy and take less time to prepare."

Between 400 and 500 reports are being written every year by the Ontario program.

"Every year the numbers keep going up. The demand goes up and we have more staff, so we're able to serve that demand."

Rudin, who just finished writing a book on Aboriginal justice issues, said that Gladue reports are being produced in Nova Scotia and Prince Edward Island and some in Quebec. But he said there are effectively no reports in Manitoba and Saskatchewan.

"Alberta has a fairly robust program but is very different from ours."