When accused individuals with First Nations heritage are before the Court, seeking their release on bail, or being sentenced, the Court must take their Aboriginal background into account. The Judge is mandated by s. 718.2(e) of the Criminal Code, and the Supreme Court of Canada pursuant to R. v. Gladue and R. v. Ipeelee, to take into account the systemic challenges First Nations people have had to endure, as a result of colonialism and the actions of the Canadian government, including the Residential School system. Thus, from time to time Gladue Reports are prepared for the Court in order to provide this necessary information as required by law.
Unfortunately, in British Columbia, there is very little funding for the preparation of these reports. The Legal Services Society (LSS) has received funding from The Law Foundation for a pilot project. The results from that project thus far, are that accused that have a Gladue Report presented at sentencing or at the bail stage, serve much less time in custody.
However, because LSS does not have the funds, nor consistent funding to properly fund the number of requests for these reports, they are often not presented in Court when they ought to be. Often the Court will order a Pre-Sentence Report (PSR) with a Gladue component.
What that means is that a Probation officer is tasked with contacting the accused’s family and Band to provide this information to the Court. Often family members, and accused individuals are not comfortable speaking to a Correctional officer, particularly when that person has felt they were previously victimized by government representatives while in the Residential School system. Additionally, not all Probation officers are trained to understand the history of First Nations people. Furthermore, not all Fist Nations people retain counsel through LSS.
Our position is that it is entirely unfair to ask someone to privately fund a report so that information that is required to be placed before the Court, can be provided. We will argue that Court Services ought to fund Gladue Reports in the same fashion that they fund PSRs and psychiatric assessments.
Thus far, the Counsel for the Ministry of Justice has fought all applications to have funding be provided through any source other than the accused. Additionally, some Courts have seemed sympathetic to these funding issues, and have ordered Gladue Reports be prepared, but to no avail as there is no funding mechanism in place for these Reports to be prepared.
In other words, there have been cases in which a Report has been ordered but not prepared, and so far the Courts have not held anyone to account or found anyone in contempt for failing to follow a Court order.
As defence counsel, we ought not be the conduits for the Gladue Report. Such reports should be independently prepared, and viewed by the Court as such, in the same manner that PSRs are presented. There can be a perceived bias when that information is presented through defence counsel.
Finally, when counsel is retained by LSS, all of the work required by defence counsel to have a Gladue Report prepared, is not funded. Often that counsel is being paid very little to prepare for a complex sentencing.
The law requires that this information with respect to an accused’s First Nations heritage be placed before the Court. The Courts must bear some responsibility in ensuring that information is presented, and it ought not fall entirely upon the shoulders of defence counsel.