The head of the organization that administers legal aid in B.C. largely agrees with some sharp words a Prince George provincial court judge has had for one aspect of the way the sentencing of aboriginal offenders is handled.
Due to the current arrangement, however, Theresa Margaret McCook, 51, pleaded guilty in November 2013 to one count of theft over $5,000 but had to wait 13 months to find out what her sentence would be.
In issuing his decision on Jan. 22, Judge Michael Brecknell indicated the delay was due to the time it took to get a so-called Gladue report written.
"There is no reason in principle why the folks who administer pre-sentence reports shouldn't also administer Gladue reports," Legal Services Society executive director Mark Benton said. "We would be happy not to own this."
As the result of a landmark 1999 Supreme Court of Canada decision, known as Gladue, judges are required to give special consideration when sentencing aboriginals, looking at such factors as the offender's background and circumstances.
Often a "Gladue component" is included in a pre-sentence report but in this instance Brecknell felt a a full-fledged report was necessary.
But getting one turned out to be easier said than done.
In contrast to pre-sentence reports, which are written by a probation officer at a judge's request, getting the Gladue report for McCook meant turning to the Legal Services Society because she was relying on legal aid to cover the cost of her case.
That did not sit well with Brecknell.
"It is well established that pre-sentence reports and Gladue reports are different and do not contain all the same information or address all the same sentencing factors," Brecknell said.
"However, in the case at bar it took several appearances by counsel and some very pointed comments by the court, which were transcribed and then forwarded to LSS, before the necessary arrangements could be made for a Gladue report to be prepared."
Why the court had to go through LSS at all was a question for Brecknell.
"With respect, the present process of having LSS act as a 'gatekeeper' is unacceptable," Brecknell said. "It is imperative that provincial government give earnest consideration to re-examining the present procedures for obtaining Gladue reports and provide the appropriate enough funding to allow the court to properly carry out its duty in the sentencing of aboriginal offenders as mandated by the Supreme Court of Canada.
"The court and offender should not be relegated to going 'cap in hand' to obtain pertinent, detailed and specific information to provide the appropriate sentencing of aboriginal offenders."
The overrepresentation of aboriginal people in the country's jails and prisons has long been an issue that Gladue hoped to address.
In 1996, parliament introduced a sentencing provision into the Criminal Code, which require that sanctions other than imprisonment should be given reasonable consideration for all offenders and with particular attention to the circumstances of aboriginal offenders.
In its 1999 decision, R. v. Gladue, the Supreme Court of Canada fleshed out the factors judges need to consider to implement the provision. They include the unique systemic or background factors that may have played a part in bringing the aboriginal offender to the court and the types of sanctions that may be appropriate given the person's heritage.
But as courts often do, said Benton, the Supreme Court was "silent on who has to pay for all of this."
That Gladue reports are available at all to defendants relying on legal aid is thanks only to a pilot project funded with non-government money, largely from the Law Foundation of B.C.
The program was launched in 2011 and working on a budget of about $200,000 a year, it now produces 60 to 70 reports per year. The budget covers the cost of editors, legal reviewers and writers who must also go through a training process.
The number of report writers is now up to 18. One of them is now based in Prince George but she has not been assigned a report yet. The next closest writers are in Vernon and Kamloops and often the report interviews are done by videoconference.
"We actually go into aboriginal communities to train the writers," Benton said. "We don't necessarily have enough and we don't have them in every community."
In 2013, an evaluation of the program was completed and while it found some fine tuning is needed, it concluded the reports are a benefit to the justice system because they help reduce the overrepresentation of Aboriginal offenders in the country's jails and prisons.
According to a Statistics Canada study, 27 per cent of adults in prison in 2010-11 were aboriginal despite making up just three per cent of the total Canadian population.
When jail was imposed, those with Gladue reports received 18 days on average, compared to 45 days for those who did not and 76 per cent of repeat offenders received a shorter sentence with a Gladue report, the evaluation found.
"What's important about that is relevant information was getting in the hands of judges so they can craft the most appropriate sentence in circumstances," Benton said. "The consequence of that for the accused is obviously important and for their community because they're back in their community sooner.
"But there is a broader implication too, for all of us, which is that corrections costs are among the most expensive parts of the justice system and to the extent we're relieving pressure there, it's in everyone's interest."
Gladue reports "really do look quite a bit different" from pre-sentence reports.
"They're really about fully (going) into the background and circumstance of the person in their community as opposed to risk of recidivism or other items that are typically part of PSRs," Benton said.
The Gladue report on McCook played a significant role in Brecknell's decision.
When she was the executive director for the Kwadacha Nation, McCook was caught redirecting nearly $725,000 in federal government money meant for programs and services for the band into her own bank account to deal with gambling debts.
While Crown prosecution argued for three-and-a-half to five years in prison, her defence lawyer submitted that a two-year conditional sentence, where she would serve the term in her home, was more appropriate.
Brecknell settled on a two-year conditional sentence, with tight restrictions on when McCook could be away from her home, followed by three years probation. She must complete 250 hours of community work and pay restitution of at least $8,400. The band was also given the option of pursuing the remaining $716,170 once her sentence is up although that appears unlikely given the band's chief and council has said they have forgiven her.
McCook is now serving her term on the Kwadacha Nation's main reserve, 570 km northeast of Prince George and 80 km north of the northern end of Williston Lake. Kwadacha has a restorative justice coordinator who is capable of supervising McCook's sentence, Brecknell noted.
Along with the Gladue report, Brecknell acknowledged in part McCook's personal circumstances and lack of previous criminal behaviour. Incarcerating a "First Nations grandmother in her 50s would do little to protect society and would only serve to add to the over representation of aboriginal people in our prison system without any genuine benefit to the community."
Despite the time that's passed since the Supreme Court issued its decision, how best to handle Gladue reports remains a work in progress, according to Benton. But he said a similar program is now being launched by the legal aid provider in Ontario, in part as a result of the evaluation of the LSS program.
In response to a request for comment, the B.C. Ministry of Justice said it "continues to evaluate how it can work with sentencing judges to address the factors identified by the Supreme Court of Canada in R v. Gladue. In the majority of cases, this does not require the writing of a Gladue report."
Although he had "no reason to believe it's very far along," Benton said the provincial government is beginning to look at the issue in part because of comments from people like Brecknell and the insistence of lawyers like Fred Fatt, who worked on McCook's behalf to get a full-fledged Gladue report.
