The combined initiative by Parliament and the Supreme Court of Canada to reduce overrepresentation of Aboriginal peoples in prison with an Indigenous-discount strategy is failing badly.
In the mid-1990s, when the Criminal Code was amended to have judges consider the specific circumstances of Aboriginal offenders, Indigenous peoples made up 16 per cent of those in custody.
By 2012, when the Supreme Court doubled down on the approach, that number had hit 28 per cent of those incarcerated where it sits today, even though Indigenous peoples constitute only about three per cent of the population.
The number of Aboriginal women imprisoned is even more disproportionate: 43 per cent.
Things are not just worse -- they're a lot worse.
The problem, however, may not be the approach but rather the failure of governments to fund the required specialized pre-sentence assessments, known as Gladue reports, and the judiciary's continuing uneasiness with their sometimes broad-brushstroke sociology.
In Newfoundland and Labrador, Justice Lois Hoegg complained that too often judges received a boilerplate document that was next to useless; in B.C., Justice Dev Dley railed against authors "cutting and pasting voluminous reports of no assistance that can often be misleading."
Yet appellate courts insist trial judges stick to the program and address the "systemic disadvantages" suffered by Indigenous peoples.
The B.C. high bench recently reduced the sentence of a 53-year-old Aboriginal man convicted of paying his drug-addicted niece to masturbate him while he fondled her breasts because his "background and systemic disadvantages created his criminogenic factors."
It also trimmed the sentence of a 30-year-old chronic drug-dealing thug for aggravated assault because he was "indelibly impacted by colonial policies of disenfranchisement."
"National standards around the reports -- what are they supposed to be, how are they supposed to get there, what are the judges supposed to do with it, it hasn't been figured out yet," maintained Mark Benton, CEO of the Legal Services Society of B.C.
Two decades later?
"First of all, there were mandatory minimums (introduced by the previous Conservative government), so there was not much room to move on Gladue reports," Benton said. "That's one set of problems. Another set of problems is no community resources."
In the last fiscal year 2016-17, the provincial legal aid plan had 5,154 Indigenous criminal clients.
But it produced only 79 (!) Gladue reports, which detail an Aboriginal offender's history and viable alternatives to prison.
"That's not even a drop in the bucket," quipped Rhaea Bailey, Indigenous Services Manager for the LSS.
"I think that's unacceptable," added B.C. Treaty Chief Commissioner Celeste Haldane, who is also chair of the LSS.
The reports that were written were paid for via $101,657 donated by the Law Foundation and the Notaries Fund.
At an average cost of between $1,200 and $1,400, providing reports for all the Indigenous clients could require between $6.2 and $7.2 million.
"We need to see a dedicated resourcing," Haldane said. "It comes down to a fundamental human right as well as an access-to-justice issue for Indigenous peoples -- in a time of reconciliation, investments need to be made and this is one area that a multi-disciplinary and inter-disciplinary approach needs to be taken."
The Criminal Code amendments at the end of the last century told judges to give greater consideration to the background of Aboriginal offenders, the effects of racism and alternatives to prison.
In 1999, the Supreme Court of Canada supported the amendments, which weren't getting much traction, with a ruling involving Jamie Tanis Gladue, an Indigenous B.C. woman. It articulated principles to guide judges weighing the fallout of colonialism and the systemic abuse suffered by Indigenous people. Judges were to consider those factors as well as traditions in Indigenous communities such as restorative justice measures to avoid meting out "culturally inappropriate" sentences.
In 2012, the Supreme Court reinforced those principles in a second decision called Ipeelee. But no jurisdiction actually provided funding for the reports -- many provinces treated the directions in Gladue as little more than a nudge to beef up the existing pre-sentence process.
"Gladue directed the judiciary to take on certain responsibilities and we thought our job was done," Benton said. "But not very much happened in B.C."
There was skepticism about blaming "colonialism" in a nation that's been independent for 150 years and about using the Criminal Code cudgel as a scalpel for societal surgery.
The LSS started a pilot Gladue project in 2011 -- more than a decade after the ruling -- using private donations. Benton said the lack of national standards helped to stymie the intent of the Criminal Code changes and the Supreme Court rulings.
"Why it should vary from province to province is one of those Canadian eccentricities I think and a little bit of a paradox when you look at how we seem to be able to set community standards in an awful lot of things but on the justice side, particularly around Indigenous justice, we seem to be quite challenged to come up with a consistent approach," he said.
"There are ways to make it happen. It may require different approaches than we have seen before."
In England for instance, Benton said, there are sentencing commissions that examine broader sociological issues and establish for judges "not meat charts, but appropriate sentences, what appropriate discounts are, appropriate weight to be given (to particular factors).
"It's all doable," he assured. "It's all done in other common-law countries with reasonable facility. It happens in a timely way. It doesn't interfere with judicial independence. But it doesn't seem to be getting a lot of uptake in Canada."
Haldane and Benton believe fixing the situation is vital for reconciliation.
"We need to see a dedicated resourcing to Gladue reports in itself," Haldane stressed. "It is key. It's paramount."
Benton said the nation's legal-aid plans hope by mid-winter to have a common strategy to urge on Ottawa.
"Some plans don't deliver the service at all -- the judiciary deals with it, in other provinces, government does it," he explained.
"One of the challenges is it is almost a boot-strapping operation to figure out what's a good practice, what's effective, what's not, what should be in a Gladue report, what is important, what's not, because there is no national evaluation going on."
