When a client with a First Nations background is before the Court, seeking their release on bail, or being sentenced, the Court must take their Aboriginal heritage 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 but not limited to 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 Law Foundation is funded from the interest earned on Lawyer’s Trust accounts. The results from that project thus far, are that accused that have had 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. Family members, and the accused are often uncomfortable speaking to a Correctional officer, particularly when they feel they were previously victimized by government agencies while in the Residential School system, the Reserve system and Corrections generally. Additionally, not all Probation officers are properly trained to understand the history of First Nations people.
Furthermore, not all Fist Nations people retain counsel through LSS. At La Liberté Cronin, we argue that it is entirely unfair to ask someone to pay privately for a report that is supposed to assist the Court with information and insights that are mandated by the Supreme Court of Canada and the Criminal Code. Terry La Liberté, Q.C. and Kasandra Cronin, Q.C. argue that Court Services ought to fund Gladue Reports in the same fashion that they fund PSR’s and psychiatric assessments. Thus far, Counsel for the Ministry of Justice has fought our applications to have funding be provided through any source other than the accused. Additionally, when Courts have seemed sympathetic to these funding issues, and have ordered Gladue Reports be prepared, it is of no avail as there is no funding mechanism in place for these Reports to be prepared and the Ministry of Justice has refused to pay. La Liberté Cronin has been involved in 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 responsible for the Gladue Report. Such reports should be independently prepared, and viewed by the Court as such, in the same manner that PSR’s are presented. There can be a perceived bias when that information is presented through Defence counsel.
Finally, when Terry La Liberté, Q.C. or Kasandra Cronin, Q.C. is retained by LSS, all of the extra work required by us to have a Gladue Report prepared is not funded. Often we are 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 and the accused.
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