B.C. Justice Summit highlights legal system's inability to adhere to Gladue decision

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      The B.C. justice system is falling short in meeting the requirements of a Supreme Court of Canada ruling regarding the treatment of Indigenous offenders.

      That's one of the takeaways from the Eleventh Justice Summit Report of Proceedings, which was recently posted on the B.C. government website.

      The 11th B.C. Justice Summit was held in early November at the Westin Wall Centre Vancouver Airport hotel and operated on the principle of confidentiality.

      This enabled participants to speak frankly without their comments being attributed directly to them or their organizations.

      As a result, the summary of the proceedings doesn't identify who's making comments about specific issues.

      The first day focused on implementing good practices in response to R. v. Gladue, which was issued by the country's highest court in 1999. This ruling outlined why judges must consider "unique systemic or background factors" that may have played a role in an Aboriginal offender being brought into court.

      Moreover, the decision noted that under the Criminal Code, judges are to impose sentencing procedures that "may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection".

      The ruling also stated that Indigenous people are over-represented in prison due to systemic factors, such as poverty or the child-welfare system, and an institutional approach, which leads to longer prison sentences and lower likelihood of receiving bail.

      The proceedings from the B.C. Justice Summit cited participants' concerns that there need to be thousands of Gladue reports prepared in B.C. each year, but current capacity only allows for a few hundred.

      "There is a significant gap in what can be funded for Indigenous legal aid clients, let alone for Indigenous people in the justice system who are not clients of legal aid," the proceedings stated. "Despite the fact that the information summarized in a Gladue report is not simply for the benefit of the client, but for all participants in the court process, the current funding model requires defence counsel to pay Gladue writers for their reports, and then be reimbursed. In addition, for Gladue writers themselves, the process of qualifying to be able to write the reports is itself expensive."

      Moreover, participants at the summit said that Gladue reports "were rarely offered to/requested for youth".

      "Consequently, many Indigenous youth going through the justice system are not afforded culturally appropriate sentencing. Many individuals have been missed or have fallen through the cracks."

      Finance Minister Carole James has an opportunity in her upcoming budget to provide more funding to ensure that B.C.'s justice system meets its legal obligations to Indigenous offenders.

      Training could address the problem

      There is also a lack of provincial standards around these reports, according to the participants, and few justice professionals have specific training in this area.

      "Education is required on a range of topics and depending on the actors in question—topics including but not limited to Gladue principles, the meaning and rationale for these reports, their cultural significance, the importance of not re-traumatizing someone, how to do the submissions themselves, how and when to request/introduce the information, how to handle the information, and/or how to apply the contents of the report at sentencing or other stages," the participants said. "Without this education, this right of Indigenous defendants will continue to be ignored due overwhelmingly to a lack of familiarity with the process."

      The proceedings also cited concerns about how the Gladue process requires "discussion of painful episodes and memories", likening this to interviews with residential school survivors.

      "Indigenous people are being asked to expose the deepest, darkest parts of their own stories. The reports are invasive, and it can be harmful when an outsider is seeking extremely intimate information. In supporting offenders, many communities lack the trauma therapists needed to help people move forward in a good way."

      One solution, participants suggested, was for the probation and court systems to be able to refer people to trauma therapy.

      The proceedings highlighted the importance of careful management over the reintegration of offenders into communities in organized-crime cases. That's because the community may reject these people upon their return.

      "In addition, the forces of gang behaviour may overwhelm the capacity of communities and Elders in putting the person on the right path," participants said.

      There was also a call for some "myth-busting" about Gladue principles.

      "There is a broad misconception that Gladue is about getting a lighter sentence, whereas the intent of Gladue is to include the victim and ensure that accountability, restitution, and transformation are addressed," participants said. "Support for Gladue is linked to empathy for victims. We need to ensure that victims do not feel re-victimized and must communicate the importance of victims to the Gladue process.

      "The pervasive stereotype is that Indigenous people get too much from government and should be pushed off-reserve to become 'real people.' We need to shift the understanding of what Indigenous people are dealing with every day, to create more understanding."

      Last year, Statistics Canada reported that 30 percent of adult males and 47 percent of adult females in B.C. prisons were Indigenous in 2016–17.

      Indigenous people account for about 5.4 percent of B.C.'s population.