Whitehorse Daily Star

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INITIATIVE ANNOUNCED – David Christie, the executive director of the Yukon Legal Services Society; Peter Johnston, the Council of Yukon First Nations’ (CYFN’s) grand chief; and Justice Minister Tracy-Anne McPhee (left to right) discuss the Gladue report pilot project during Tuesday’s news conference in Whitehorse.

Funding of Gladue reports called long overdue

The Yukon government is funding a pilot program that will formalize how Gladue reports are written in the territory for the first time.

By Emily Blake on February 21, 2018

The Yukon government is funding a pilot program that will formalize how Gladue reports are written in the territory for the first time.

The government announced Tuesday it is committing $530,000 over three years toward the pilot.

It will provide training and funding for Yukon-based writers to produce the reports for Indigenous offenders.

“This pilot project will be an organized system for providing consistent, high-quality information to the courts to ensure that the circumstances and the history of each Indigenous offender can be properly considered in every case,” Justice Minister Tracy-Anne McPhee said at a news conference.

A Gladue report is a specialized type of pre-sentencing and bail hearing report for Indigenous offenders that considers their background and unique circumstances.

Under the Canadian Criminal Code, courts must consider a number of factors when sentencing Indigenous offenders.

Those include the effects of colonialism, displacement and the residential school and child welfare systems, as well as family and community history.

The special sentencing approach is intended to alleviate the overrepresentation of Indigenous people in Canada’s justice system and recognize the importance of restorative justice.

“This is really about getting the best possible information about any individual offender before the court for consideration in determining what’s an appropriate sentence and what the variety of that sentence might be, restorative options, rehabilitative options, those kinds of things,” McPhee explained.

Judges must consider reasonable sanctions other than imprisonment for all offenders.

And, in each case, it is up to a judge to determine whether Gladue factors justify a different sentence.

Peter Johnston, the Council of Yukon First Nations’ (CYFN’s) grand chief, said having a formalized process for Gladue reports is a win for everyone in the Yukon.

“Unfortunately, the justice system has always been looked upon as a right and wrong reality when it should be helping to support people to get out of the system,” Johnston said.

“We definitely want to build healthier communities and healthier families and support people that are in need,” he said.

“It’s about helping the individual in their own reality, what they need to reintegrate back into society.”

Johnston noted support for Gladue reports in the Yukon is “well overdue.”

The Supreme Court of Canada defined sentencing principles for Indigenous offenders in 1999 with the landmark R v. Gladue case.

More than 10 years later, it reaffirmed and expanded the principles in the 2012 Ipeelee case.

Up until recently, there has been no funding nor formal training for writing Gladue reports in the territory. A handful of writers have produced reports on an ad hoc basis.

In 2015, the Yukon Gladue Research and Resource Identification Project found that the lack of support was inadequate and unsustainable, and recommended a pilot program.

“There wasn’t anything formal or any structure,” explained David Christie, the executive director of the Yukon Legal Services Society.

“People would go asking for a report, and there were thankfully some kind and qualified people who would be interested in doing those reports.”

One of those writers is Laura Hoversland, a senior analyst with the CYFN’s Justice Program. She told the Star she has written about 10 Gladue reports over the past year.

“Through the Gladue process, a lot of information is brought to the court’s attention that they otherwise would not have any idea,” Hoversland said.

“I think that the Gladue is an opportunity to identify what it is that this individual needs to work on and could actually make some better choices afterwards.”

Hoversland learned about the Gladue report writing process from Mark Stevens, a justice consultant with the Kwanlin Dün First Nation who has also authored reports over the years.

She explained it takes six to eight weeks to produce a report, which involves interviewing an offender, their family and community members.

Around 25 to 35 reports are needed annually in the Yukon.

Now that there is a pilot program, Hoversland said, they can build up a roster of qualified writers to establish a formalized process.

Many lawyers, the Yukon Crown and the legal services society have also been supportive of the Gladue pilot program.

That includes Jason Tarnow, a defence lawyer based in the Lower Mainland of B.C. who also practises in the Yukon.

“It’s really a fantastic thing,” he told the Star of the program.

“I think it’s really positive for the territory. I think it will help lower the numbers of First Nations people that are incarcerated.”

Tarnow noted that government funding for Gladue reports in the Yukon is “long overdue.

“I was astonished to learn there was zero funding for any such reports considering the population up in the Yukon and the high incarceration rates,” he said.

Statistics indicate that Indigenous people accounted for 70 per cent of adults in custody in the Yukon in 2015/2016.

Meanwhile, Indigenous people made up just over 23 per cent of the Yukon’s total population in 2016.

Tarnow noted Yukon writers were authoring Gladue reports “out of the goodness of their hearts,” while in B.C., there has been “some funding for some time.”

However, he said funding can also be an issue in the province.

While he has seen some great reports, he has also seen others that are limited.

Tarnow said Gladue reports are important for recognizing how intergenerational trauma plays a part in offenders’ criminality and can cause them to become entrenched in the criminal justice system.

“You have to take into consideration the systemic discrimination that the government has put upon First Nation people for decades upon decades.

“Thank God the residential school systems are no more but the atrocities that were committed during that time, the ripple effects are still felt today,” he said.

The Yukon pilot program will be led by a Gladue management committee with representatives from the CYFN, the legal services society and the Public Prosecution Services of Canada.

There will be continued evaluation of the program and adjustments will be made as required.

It complements the training of 11 writers that began in November 2017 through the CYFN.

Comments (11)

Up 0 Down 0

Frank Ver-Sayshun on Mar 3, 2018 at 4:37 pm

From R v Stewart 2012 YKSC

[3] As a result, I directed that a Gladue Report be prepared and adjourned the sentencing to September 12, 2012. That request apparently caused some difficulty because not all probation officers are trained to do the Gladue aspect, which is to address the Aboriginal person’s background specifically to determine the role that systemic issues, past colonial practices or residential school may have played. For the Yukon this is a capacity and training issue that must be addressed immediately because it simply is not fair or just to have lengthy delays to prepare a Gladue Report which may benefit the First Nation person who is in pretrial custody. Counsel, of course, should be alive to this requirement and ensure well in advance of a sentencing hearing that a Gladue Report will be prepared.

[4] Having said that, although the Probation Officer who has prepared this report has candidly indicated that he did not receive Gladue training, I am satisfied that the Pre-Sentence Report filed in this case has provided the necessary Gladue material in terms of the First Nation, the history of the residential school factor, and the particular circumstances of Mr. Stewart. This Pre-Sentence Report is a Gladue Report.

Up 0 Down 0

Frank Ver-Sayshun on Mar 3, 2018 at 11:47 am

From R v Lawson BCCA 2012

[27] A Gladue report may be provided by a variety of people of diverse experience and background who have access to, or can obtain, information that is reliable and relevant. A formal Gladue report is not necessary to provide the court with Gladue information; Gladue information may also be provided to the Court through a pre-sentence report. This was well articulated in R. v. Corbiere, 2012 ONSC 2405 (CanLII), where the sentencing judge observed:

[23] There is no magic in a label. A “Gladue Report” by any other name is just as important to the court. Its value does not depend on it being prepared by a particular agency. Its value does hinge on the content of the document and the extent to which it has captured the historical, cultural, social, spiritual and other influences at play in this context.

[26] If a pre-sentence report is lacking in its richness of detail or historical/systemic background, it is incumbent upon the sentencing judge to make further inquiries. The court may direct that the report be supplemented in writing or it may direct the attendance of witnesses that can offer the information and perspective that is needed.

I also agree with the following comments of Chief Judge Cozens of the Yukon Territorial Court in R. v. Blanchard, 2011 YKTC 86 (CanLII) at para. 25:

In the absence of a true Gladue Report, it is critical that pre-sentence reports contain some details about an offender’s aboriginal status and circumstances. Where the pre-sentence report does not contain sufficient relevant information, defence and Crown should be prepared to make submissions and, if necessary, call relevant evidence.

[28] Finally, as a form of pre-sentence report, Gladue reports should be subject to the same general requirements of balance and objectivity as conventional pre-sentence reports. Thus, the writer should attempt to remain detached rather than advancing personal opinions. While Gladue reports may offer suggestions or proposals about potential restorative or rehabilitative programs or sentences, and particularly those tailored to Aboriginal offenders, they should not strongly recommend specific sentences. The sentencing function belongs to the judge.

Up 3 Down 0

Yukon Watchdog on Feb 26, 2018 at 3:15 pm

How to create a two-tiered, racist system.

Up 9 Down 0

Juniper Jackson on Feb 24, 2018 at 8:17 am

Hmm.. Mr. Politico must be a Liberal.. In the party, if you don't think Trudeau's 'jokes' are funny, you must be a Nazi..(Gerald Butts) If you think there is not housing, jobs, for the next million refugee/migrants then you must be a racist, if you are a Christian you must also be a white supremacist..and now.. apparently, if you think justice should be for everyone.. you must be a hater.. I guess I must be a racist, white supremacist, nazi, hater.. I don't care how the report is done.. if it is done for everyone regardless of race, creed, language, gender, education, etc. When one sector gets special consideration under the law, that results in those persons receiving unequal consequence.. that's a get out of jail free card and does not serve justice to the rest of the community.

Up 5 Down 0

My Opinion on Feb 22, 2018 at 10:29 pm

Well said Jose. Couldn't have said it better.

Up 5 Down 0

bandit on Feb 22, 2018 at 2:19 pm

So let's put this into perspective.
$530,000 over 3 years = roughly 177,000 per year
11 writers = about $16,000 ea per year
25-35 reports per year = $5,000-$7,000 ea
11 writers producing 25-35 reports per year = 2-3 avg. ea
Sounds like a pretty good gig if you can get it.

Up 9 Down 0

Josey Wales on Feb 21, 2018 at 10:26 pm

Ummm...PSG it sounds like you are suggesting equal representation of trauma throughout all of society, equally?
How dare you have such a thought, really?
Silly PSG...Early trauma is exclusively for our first migrants, best way to sanitize the bigotry of lower expectations in the PC Crusade.
I have met and spoke with folks, tattooed by real fascists,they survived the cattle cars and work camps of a clearly forgotten time.
Funnily enough, none of those folks or their kin used their experiences to excuse bad social behaviour.
We all have baggage, matters only how you carry it.
Important however that you carry/manage your own baggage...as it is the responsibility of no one else.
In my opinion, the fact that we clearly have race based laws and promote the bigotry of lower expectations in what is left of Canada...makes me want to hurl.
Saying that apparently makes one a hater...suggested an idiot.

That aside, glad they are getting Gladue mastered, and ramping up the ability to churn them out to be more common than a bus pass or a parking ticket soon...the way I see it.

Up 13 Down 0

north_of_60 on Feb 21, 2018 at 6:53 pm

Why doesn't everyone get the benefit of a report to " include the effects of colonialism, displacement and the residential school and child welfare systems, as well as family and community history" when they have to deal with the justice system? In many cases those were tough times for everyone who wasn't wealthy, and aboriginals were not the only ones that went to residential schools.
This is blatant racist pandering, paid for by the non-indigenous taxpayers of Canada. This country will never rise above ongoing repressive colonialism until everyone is treated equally by the justice system.

Up 5 Down 2

Just Sayin' on Feb 21, 2018 at 3:16 pm

Who will be composing these reports? How is the program going to ensure there is no bias? Reality is, most of the natives in the Yukon know each other and I have observed in my career the preferences are given to family members and friends. This should be interesting.

Up 8 Down 1

ProScience Greenie on Feb 21, 2018 at 3:06 pm

Every Yukoner going to court for the first time should have a Gladue report written to tell the story of their earlier life. It is the right thing to do. A more egalitarian justice system for all is badly needed.

Up 2 Down 9

Politico on Feb 21, 2018 at 2:58 pm

And let the haters start commenting

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