Gladue Practices in the Provinces and Territories

6. Results

The analyses of the data obtained through the questionnaire are presented in the following six sections of this research report. The first section addresses the existence of specialized courts for Aboriginal accused/offenders. The second deals with the training offered to court officials. The third section pertains to sentencing procedures while the fourth covers the procedures at bail and parole hearings where Aboriginal individuals are involved. The fifth section explores some community justice programs and resources consistent with Gladue that have been established in certain jurisdictions and, last, the sixth section discusses the limitations of the study.

6.1 Specialized courts for Aboriginal persons

Participants from eight jurisdictions (Alberta, British Columbia, Nova Scotia, Nunavut, Ontario, Saskatchewan, Yukon, and Northwest Territories) stated that there was at least one specialized court for Aboriginal accused/offenders in their jurisdiction that satisfies the criteria established by the researchers.Footnote 3 Table 1 lists the names of the courts cited by the participants and their locations.

Table 1: Specialized courts by province according to the participants
Province Specialized court Location
Alberta
  • Stony Plain
  • Glenevis Court
  • Hinton
  • Tsu Tina
  • Lethbridge/Ft. MacLeod
  • Edmonton
  • Edmonton
  • Hinton
  • Calgary
  • Lethbridge
British Columbia
  • Circuit Court
  • First Nations Court
  • Northern British Columbia
  • New Westminster
Nova Scotia Regular provincial courts Eskasoni
Nunavut Nunavut Court of Justice Iqaluit
Ontario
  • Aboriginal Persons (Gladue) Court
  • Aboriginal Persons (Gladue) Court
  • Aboriginal Persons (Gladue) Court
  • Aboriginal Persons (Gladue) Court
  • Old City Hall, Ontario Court of Justice Toronto
  • 1000 Finch, Ontario Court of Justice, Toronto
  • College Park, Ontario Court of Justice, Toronto
  • Ontario Court of Justice, Sarnia
  • 2 additional Aboriginal Persons (Gladue) Courts are under development in Scarborough (Toronto) and London
Saskatchewan
  • Cree Court Party
  • Aboriginal Court Party
  • Domestic violence courts
  • Drug treatment court
  • North‑east Saskatchewan
  • North‑west Saskatchewan
  • Regina, Saskatoon, and North Battleford
  • Regina
Yukon
  • Yukon Community Wellness Court
  • Domestic Violence Treatment Option Court
  • Whitehorse
  • Whitehorse
Northwest Territories Domestic Violence treatment Option Court Yellowknife

It should be noted that in Nova Scotia, the specialized court for Aboriginal accused/offenders operates as a satellite court of the Sydney court. Five jurisdictions (Nunavut, Saskatchewan, Yukon, British Columbia, and Northwest Territories) point out, however, that some of their specialized courts do not deal exclusively with cases involving Aboriginal offenders but that these offenders are involved in most cases that come before the courts. That is the situation with the Nunavut Court of Justice (Iqaluit, Nunavut), the Domestic Violence Court and the Drug Treatment Court (Regina, Saskatoon, and NorthBattleford, Saskatchewan), the Yukon Community Wellness Court (Whitehorse, Yukon), the Circuit Court (Northern British Columbia), and the Domestic Violence treatment Option court (Yellowknife, Northwest Territories).

Participants from three jurisdictions (New Brunswick, Newfoundland and Labrador, Prince Edward Island) indicated that there is currently no specialized court in their jurisdiction. The representative from Newfoundland and Labrador noted, however, that court officials who work in predominantly Aboriginal communities are usually familiar with the background of the community and often of the offender.  The participant from PEI added that jurisdictions with small demographics of Aboriginal people may face barriers of cost implementing this type of approach.  And finally, New Brunswick stated that a specialized court is being created in the Elsipogtog First Nation community.

6.2 Training for judicial officials

The participants were asked whether there were training sessions for two groups of judicial officials: on the one hand, judges, and on the other hand, probation officers, courtworkers and duty counsel.

6.2.1 Judges

Two questions were asked concerning judges:

  1. whether training (or awareness initiatives) is provided regarding the application of section 718.2(e) of the Criminal Code and the Gladue decision, and
  2. whether formal training or educational sessions Footnote 4 are provided regarding Aboriginal people in Canada (e.g. their history, culture, experience of discrimination).

With respect to the first question, six jurisdictions (Alberta, British Columbia, Newfoundland and Labrador, Nova Scotia, Ontario, Prince Edward Island) responded in the affirmative. For most of those jurisdictions (British Columbia, Ontario, Newfoundland and Labrador, Prince Edward Island), training is given in the form of workshops offered at national (e.g. Osgoode Conference on Gladue) or provincial (e.g. Provincial Court Judges Association Conference of British Columbia) conferences. In Nova Scotia, a non‑governmental organization (Mi’kmaw Legal Support Network) gives information sessions on this subject. Newfoundland and Labrador and Prince Edward Island mentioned that their judges have the opportunity to visit and observe the Gladue Court in Toronto. Moreover, in some jurisdictions (Nova Scotia, Ontario), training is also offered internally by the courts. The participants from New Brunswick, Northwest Territories and Saskatchewan said they did not know whether this type of training is available.

Nunavut and Yukon emphasized the specific context in the territories, noting that their judges are faced with cases involving Aboriginal persons every day. As a result, they are very familiar with the Gladue principles and thus no “formal” training is necessary. However, Nunavut indicated that there is informal internal training for deputy judges who arrive from the South to work in the territory.

As for training or educational sessions on the history and culture of Aboriginal peoples in Canada, five jurisdictions (Alberta, Newfoundland and Labrador, Prince Edward Island, Saskatchewan and OntarioFootnote 5) stated that information sessions are provided to judges in this regard. For most of them, the training is made possible through provincial or national organizations or in-house judicial educational sessions, such as the National Judicial Institute, the Department of Justice of the Government of Newfoundland and Labrador, the Canadian Judicial Education Council, the Canadian Association of Provincial Court Judges and the Saskatchewan Association of Provincial Court Judges. The Prince Edward Island participant added that the judges who sit in districts with an Aboriginal population have had the opportunity to participate in the Osgoode Conference on Gladue and to visit the Gladue Court in Toronto.

The participants from three jurisdictions (New Brunswick, Nunavut, Yukon) reported that there is no formal training for judges on the history and culture of Aboriginal peoples in Canada. Similar to the preceding question, Nunavut and Yukon noted that their judges are well versed in this subject because of their daily practice in Aboriginal communities. Participants from British Columbia and the Northwest Territories stated that they do not know whether this type of training for judges exists.

6.2.2 Probation officers, courtworkers and duty counsel

Participants from seven jurisdictions (British Columbia, Newfoundland and Labrador, Nova Scotia, Northwest TerritoriesFootnote 6, Ontario, Prince Edward Island, Saskatchewan) said that they provide training for probation officers, courtworkers and duty counsel on the preparation of independent sentencing and pre‑sentence reports involving Aboriginal offenders.

Nova Scotia reported a partnership with the Mi’kmaw Legal Support Network, which provides training to the professionals who prepare Gladue reports. The Mi’kmaw Legal Support Network works closely with Aboriginal Legal Services of Toronto to develop material for this type of training.

With respect to the quality of the training available in British Columbia on preparing pre‑sentence reports, the two participants of this province offered different perspectives. One of the participants explained the training in detail:

Probation officers complete a fourteen hour on-line Gladue report course as part of their required training. The Gladue report course is in addition to a required pre-sentence report course. The Gladue report course looks at the principles of sentencing mandated in the Criminal Code that relate to Aboriginal offenders. The course examines the legalities of the Gladue case and explores the impact of the Gladue decision, especially as it relates to the building of trust between the Aboriginal community and the courts. The course considers the unique circumstances about Aboriginal offenders and their communities that led to the legislative changes. The course also explores how to contact Aboriginal communities when preparing a Gladue report for court, including what specific factors to examine during the investigation. The course covers what format to follow when writing a Gladue report for court and how other jurisdictions in Canada are responding to the Gladue decision.

However, another British Columbia participant questioned certain aspects of the implementation of the training provided:

The training is not coming from people that know the communities. Also, the training offered to probation officers is very limited in its usefulness because of the context. Probation officers receive training on writing PSRsFootnote 7 at the Justice Institute. Part of this training includes an Aboriginal component which is very small. There are a number of issues with the training: (How?/Who?/Any follow-up?) who are the trainers, the amount of training. What about training updates/refreshers and the frequency of the training?

Most of the participants emphasized how important Gladue type information is in an Aboriginal accused’s sentencing process, as illustrated in the comments by the Northwest Territories participant:

There is training for probation officers as Gladue forms a part of their standard reporting (PSR) information. These are KEY factors when probation officers do the report in large part due to the fact the NWT has a high Aboriginal population. It is a standard part of reports as they are relevant to the individual and communities within the NWT. They are integral factors which must be acknowledged in an effort to ensure the best interests of the individual, victim and community are addressed in sentencing, reintegration and rehabilitation.

The Ontario participant indicated that in their province, a pre-sentence report writing guide has been distributed to probation and parole officers to assist in identifying specific information that should be included for Aboriginal offender in satisfying the requirements of s718.2 (e) of the Criminal Code of Canada.  New Probation and Parole officers are trained in the policy and procedures at the Ontario Correctional Services College. Duty counsels in Ontario also receive a five hour extension from Legal Aid Ontario on criminal certificates for bail and sentencing cases where clients have identified themselves as Aboriginal in order to factor in any additional time required for collecting Gladue type of information. For additional information on Legal Aid Ontario’s Gladue related practices, please refer to section 6.5.3.

Participants from four jurisdictions (Alberta, New Brunswick, Nunavut, Yukon) said that they were not familiar with the availability of this type of training. However, the Nunavut participant stated that a request to the court had been submitted, unsuccessfully, to incorporate “Gladue type information” into pre‑sentence reports:

My office has specifically requested that probation officers be requested by the Court to include Gladue type information in pre‑sentence reports (i.e. community views about criminal sanctions) and the court has refused to do so… Courtworkers in Nunavut are involved in assisting defence counsel - they do not play an independent role as is frequently the case in the south.

6.3 Information for the sentencing court

This research also explored how the provinces and territories have integrated the three principles set out in GladueFootnote 8 into their sentencing procedures, and specifically

  1. how the information requested in Gladue is provided for sentencing procedures, who may be assigned the responsibility for collecting this information and the type of information collected about an Aboriginal offender’s background;
  2. whether the sentencing recommendations made by the Crown are systematically informed by the kinds of non‑custodial measures available to Aboriginal offenders;
  3. whether there are any formal administrative directives/policies asking Crown prosecutors to systematically submit the information requested in Gladue to sentencing judges;
  4. whether there are partnerships between courts and non‑governmental organizations to ensure that the information requested in Gladue is incorporated systematically into the sentencing decision‑making procedures.

6.3.1 Gladue type information for the sentencing process

According to the Gladue decision, two types of information are particularly relevant in the process of sentencing Aboriginal persons:

  1. information on their background and
  2. information on alternatives to incarceration.Footnote 9
6.3.1.1 Background of Aboriginal offenders

The research asked the participants questions about how (i.e., the type of document/report normally used) information about an offender’s background is provided to the court; who may be assigned the responsibility for collecting this information; and what type of information is usually collected.

All jurisdictions, with the exception of Nunavut, said that this information is normally provided to the court through pre‑sentence reports.Footnote 10 Five jurisdictions (Alberta, British Columbia, Nova Scotia, Northwest Territories, Ontario) noted that this information may also be provided to the court through independent sentencing reports (sometimes called Gladue reports).Footnote 11 However, Nova Scotia mentioned some limits regarding the preparation of independent reports:

Although the opportunity to request Gladue reports is available, access to this service is limited due to the current cost recovery model which has resulted in the Mi'kmaw Legal Support Network placing constraints on the cases for which they are able to provide reports.

For their part, the British Columbia representatives stated that independent reports are prepared rarely because

  1. most judges are not familiar with the availability of this type of report;
  2. most judges believe that pre-sentence reports will include all the information relevant to Gladue; and
  3. funding for this type of report is very limited.

One of the British Columbia participants noted: “I have not heard of any Crown Counsel requesting such a report. I have heard of Crown Counsel objecting to an independent Gladue report and arguing for a simple PSR.” The other representative from that province added that, in addition to the fact that the financial resources available for preparing Gladue reports are quite limited, only professionals trained by Legal Services Society are eligible to provide this type of report. This participant questioned the relevance of this eligibility criterion given the quality, length and frequency of the training provided (on this topic, see this participant’s point of view in section 6.2.2 of this report). Moreover, this participant seems to regret the infrequent use of Gladue reports: “The vast majority (of the information) comes under the PSRs under probation. However, it is not the same/useful information that would be collected under a Gladue report. For example, the PSRs do not tend to provide information from important collaterals in the community including family members, elders etc. Neither is there information provided about the particular culture and historical background of the First Nation involved.”

With respect to “who” may be assigned the responsibility for collecting information about an Aboriginal offender’s background for sentencing purposes, all jurisdictions replied “probation officers and defence lawyers” and eight (Alberta, British Columbia, Ontario, and Labrador, Nova Scotia, Nunavut, Northwest Territories, P.E.I., Saskatchewan) also said “Aboriginal courtworkers and/or an Aboriginal organization” (e.g. courtworkers in Nova Scotia).Footnote 12 British Columbia noted that an independent contractor (e.g. a trained consultant, an Aboriginal organization, etc.) may perform this function. Also, some participants added that this responsibility may be assigned to others, such as community justice committees (Northwest Territories); police and Crown prosecutors (Prince Edward Island); and youth workers (Saskatchewan). In the Northwest Territories and British Columbia, the judge may also request an oral report from probation officers.

The participant from Newfoundland and Labrador explained how the process for collecting information about an Aboriginal offender’s background can be complex and fluid:

Probation officers provide information through the pre‑sentence reports. Legal Aid has community workers in many of the Aboriginal communities who can assist with collecting such information. Most information is channelled through defence counsel and, on occasion, crown attorneys. Aboriginal Court workers are available and while in this province they do not speak to sentencing they are a valued resource. Police may also provide additional information as they become familiar with the community and may have community constables or detachment assistants from the community.

Concerning the information collected about the Aboriginal accused’s background, all the participants stated that, in their jurisdictions, information on the accused’s mental health and his or her family history of violence, sexual abuse and addictions is collected. All jurisdictions except Prince Edward Island include information about maternal alcohol or drug use. Most jurisdictions, with the exception of New Brunswick and Prince Edward Island, indicate in the pre‑sentence report whether the individual went to a residential school and, other than Alberta and Prince Edward Island, all other jurisdictions include information as to whether the accused was adopted and/or involved in the child welfare system. In addition, seven jurisdictions (Alberta, British Columbia, Nova Scotia, Nunavut, Northwest Territories, Ontario, Saskatchewan) said that they collect information about the overall historical and societal systemic factors likely to have come into play in bringing the offender before the court (e.g. reference to past government assimilation policy).

Participants from four jurisdictions (British Columbia, Nova Scotia, Northwest Territories and Saskatchewan) identified other factors that are also taken into account when obtaining information about an Aboriginal accused’s background. With respect to the accused, they cited, for example, socio‑economic, professional and educational status; knowledge of the culture and history of the Aboriginal home community; the impact of the home community’s displacement (if appropriate); family circumstances (e.g. breakups); support of family or significant persons (such as extended family, peers, elders and other members of the community); language(s) spoken or understood and experiences with violence (as a victim or witness). Information is also gathered about the accused’s home community, for example: work and educational opportunities; economic position; statistics on the level of education; the presence of racism and the relationship the accused maintains with his or her home community (i.e., the community in which the accused was raised or with which the accused keeps in contact, separate from his or her place of residence).

6.3.1.2 Non‑custodial measures

The research asked the participants questions regarding how information about the kinds of non‑custodial sentences available is provided to the court (i.e., the type of document/report normally used) and “who” may be assigned the responsibility for collecting this information.

As with the Aboriginal offender’s background, pre‑sentence reports appear to be the method used most often in all jurisdictions to provide information to the court about the kinds of non‑custodial sentences available. However, this type of report has considerable limits according to the Nunavut participant:

Some of the Gladue factors are referenced in PSRs but it tends to be included as a rubber stamp. PSRs frequently reference resources being available in the community that are not actually available. For example, PSRs routinely note that Elders are available for consultation etc. However since the Elders may not be able to speak English and most offenders in the Ktikmeot do not speak Inuinnaqtun, lack of money for translation makes Elders not really available.

It appears that only four jurisdictions (British Columbia, Nova Scotia, Northwest Territories, Ontario) use independent reports. Although independent reports are still rarely used in British Columbia, one of the representatives of that province wrote about their important contribution:

Gladue reports will not recommend a “no contact order” due to a small community environment. It just is not possible to adhere to these conditions. Instead, it may be “a version” of a no contact order which will be tailored to the individual circumstances and community. For example, if there is a case of domestic violence and alcoholism, the condition may be that the individual cannot consume alcohol at home. If they consume it at a friend’s house or elsewhere, they must be sober when they return home. The Gladue report will be very customized and identify the problem and what is working well. It is important to provide suitable and appropriate conditions. Otherwise, we set people up to fail (breach conditions) and they return to the system within a matter of days.

The information on non‑custodial measures may also be provided to the court through justice circles organized by Aboriginal organizations. In some jurisdictions, these circles are organized prior to sentencing, which may assist in preparing a report for the court (Nova Scotia, Prince Edward Island).

As for “who” may be assigned the responsibility for collecting information about the kinds of non‑custodial sentences available for sentencing procedures, all jurisdictions mentioned “probation officers”. In addition, seven jurisdictions (Alberta, British Columbia, New Brunswick, Newfoundland and Labrador, Northwest Territories, Prince Edward Island, Yukon) also indicated “the Crown”, seven, “Aboriginal courtworkers and/or Aboriginal organizations” (Alberta, New Brunswick, Nunavut, Northwest Territories, Ontario, Prince Edward Island, Saskatchewan) and three (British Columbia, Saskatchewan, Yukon), “defence lawyers”. Saskatchewan added that youth workers sometimes collect this type of information. One of the British Columbia participants specified that “in BC, defense counsel and the Crown are not “assigned” responsibility for collecting this information but they may “choose” to do so… I have not heard of Crown doing so but I certainly know of cases where defense has retained an independent consultant to gather the data and prepare a report. Duty Counsel may solicit the information as best they can from their client and family members, if available.”

The Ontario and Nova Scotia participants noted the current situation in their provinces.  The Ontario participant:

In Ontario 18 court locations have access to dedicated Gladue services from specifically funded Aboriginal organizations and these services are not provided by courtworkers.  Legal Aid Ontario, as noted earlier, provides additional hours for defence counsel to provide Gladue information for self-identified Aboriginal clients and as a default, probation officers are to include the information in PSRs. Crowns may also assist in some locations – and may consult courtworkers about non-custodial culturally appropriate services that might be available.]

And the Nova Scotia participant:

The Public Prosecution Service reports that at present no one is assigned this role. Anyone may be assigned to this role in the future. At present the Mi’kmaq Legal Support Network (MLSN) has a courtworker in court whenever Eskasoni sits and on a regular basis in the Baddeck court which deals with Wagmatcook. They have the responsibility for monitoring Restorative Justice Programs and conducting circles, and routinely make informal representations to the court when they are being considered at the court level. Correctional Services (probation) also times their appointment dates in Eskasoni so that they are in the other end of the building when court is in session and they can be available on very short or no notice to provide information on their programs, which they do on a regular basis. Often, this information comes to the court in the recommendations portion of the pre‑sentence report.

As a territory, Nunavut seems to experience a somewhat unique situation with respect to the role of prosecutors in collecting information about non‑custodial measures:

The Crown does not generally buy into Gladue other than by way of discounted sentences and there is no sense that the Crown has an obligation to provide alternatives. On the other hand, an important additional complicating factor is that the territory is supposed to be providing alternatives, so I don’t know to what extent the Crown can be faulted for something that does not fall institutionally into their area of responsibility. The division of powers between the feds and the territories creates significant problems in prosecutions and corrections.

Finally, the British Columbia participants provided additional interesting comments on the aspects or challenges related to the non‑custodial measures that may be presented to the court: the availability and ability of the Aboriginal community to assume responsibility for promoting restorative approaches for offenders; the existence of sentencing and healing procedures unique to the Aboriginal community (even where the offender has a fragmented connection with it); the availability and willingness of the victim and the accused to participate in a restorative justice program as a non‑custodial measure, which may sometimes take place outside the Aboriginal community.

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