Gladue report writing examined as way to help convicted

The Siksika Justice Department is considering if full Gladue report writing can better serve its members who go through the corrections system.

“(Aboriginal people) have the highest rates of incarceration in the jail system and it’s important that these reports be used to keep those people who don’t need to be in jail out of there,” said Siksika First Nations Councillor Laverna McMaster.

Siksika is one of the few First Nations across the country to have a court house on its land and is the only First Nation to have a full-time partnership with a legal aid society. It also has its own Justice Department which includes a team from Legal Aid Alberta, corrections and probation officers, a court worker, and a variety of programs, including fine options and a restorative justice tribunal. The First Nation also offers programs, through its health and wellness services, which include mental health, addictions and family violence counselling.

At the moment, pre-sentencing reports, “which take into consideration the principles outlined in Gladue” are used, says Legal Aid Alberta staff lawyer Christine Hutchinson, who works on the First Nation.

A 1999 Supreme Court of Canada decision in R v. Gladue provided an interpretation of Section 718.2 (e), an amendment of the Criminal Code made in 1996. The point stated that a “court that imposes a sentence shall also take into consideration… all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular  attention to the circumstances of Aboriginal offenders.”
As a result of this ruling, Gladue reports or Gladue-style reports were developed.

The purpose of Gladue reports is to present the background of the convicted person as well as consider systemic issues so those circumstances can be taken into consideration for sentencing.
Last year, in R. v. Ipeelee, the Supreme Court stated that the reports had not been implemented widely and that the circumstances of Aboriginal people were not being used when sentencing was taking place.

“In Ipeelee the Supreme Court emphasized again that… legal counsel has a duty as well to make the court aware of these circumstances. So there’re additional duties on all the players in the court room to make sure that Aboriginal people are properly represented when they are in court,” said Hutchinson.

According to Correctional Service Canada 2006 statistics, 18.5 per cent of offenders serving federal sentences are Aboriginal.
Aboriginal people comprise 2.7 percent of the adult Canadian population. However, in the Prairies, where Aboriginal people are a larger proportion of the general population, they account for 60 percent of offenders. Aboriginal women are incarcerated at a greater rate than Aboriginal men, with Aboriginal women accounting for 30 percent of women behind bars. Aboriginal youth are also overrepresented, criminalized and jailed at earlier ages and for longer periods of time than non-Aboriginal young people.

McMasters says it is important that measures other than incarceration be part of the court’s repertoire. Often time offences are committed because of addiction. Treatment programs are needed not time in jail, she says.

Hutchinson says one of the advantages Siksika members have over other First Nations people who go to court off-reserve, is that the majority of people involved with the Siksika justice system are First Nations. Probationary officers often know the circumstances that have led to an offender appearing before a judge so a pre-sentencing report is much more detailed.

In February, Siksika Justice Department and Legal Aid Alberta collaborated in bringing Jonathan Rudin, Canada’s pre-eminent authority on Gladue report writing and program director of the Aboriginal Legal Services Centre in Toronto, to the First Nation for a workshop. Along with members of the Siksika Justice Department, defence lawyers, Crown prosecutors and a member from the judiciary participated in the workshop. There will be a follow-up conference in Toronto in April.