Indigenous B.C. criminal case defendants continue to face challenges to their right to specific pre-sentencing reports as the system providing them continues to struggle with high demand, lack of writers and cash problems.
“They’re not being funded properly so the mechanism to combat colonialism is being undermined,” criminal defence lawyer Garen Arnet-Zargarian told Glacier Media.
Pre-sentencing reports for Indigenous people are called Gladue reports, demand for which is increasing by the year.
Without them, said Asits'amniyaak (Andrea Hilland, KC) of the Nuxalk Nation, and a BC First Nations Justice Council (BCFNJC) director, offenders could face more harsh penalties than normal.
“The absence of Gladue considerations can negatively impact the sentencing of Indigenous individuals, as they provide critical context about the offender's background, including systemic and personal factors that may have contributed to their involvement in the criminal justice system,” Hilland said.
Arnet-Zargarian called it “a huge problem.”
“A Gladue report could make the difference between a discharge and a criminal record,” he said.
A Ministry of Attorney General spokesperson told Glacier Media the province is committed to working with system partners to address overrepresentation of Indigenous people in the criminal justice system.
“We know that the needs of Indigenous people vary, and that’s why we’ve endorsed the BC First Nations Justice Strategy and are working with Metis Nation BC to advance a Metis Justice Strategy,” the spokesperson said.
What are Gladue reports?
The Gladue name stems from a 1999 Supreme Court of Canada decision which noted the effects of colonialism on Indigenous people and the failures of the court system to address challenges faced by such people. The case led to establishing principles for Indigenous sentencings.
“The Gladue decision mandates that courts consider the unique circumstances of Indigenous offenders during sentencing,” Hilland said, noting unmet requests for a Gladue letter or Gladue report undermine the intent of the Gladue decision to ensure fair and culturally informed sentences for Indigenous people.
In accordance with the BC First Nations Justice Strategy, the responsibility of preparing the reports was given to the council in 2021. Legal Aid BC ran it before that.
“Anyone who self-identifies as First Nations (status or non-status), Metis or Inuit has Gladue rights and can request a Gladue report,” she said. “The BC First Nations Justice Council has increased the production of Gladue reports. However, the demand continues to exceed capacity.”
The ministry said that, in addition to providing trauma-informed, culturally grounded services, the BCFNJC has introduced protocols and tools to improve oversight and quality of Gladue reports, including in-house Gladue writer training and a formalized internal legal review process.
What is a Gladue letter?
“A Gladue letter is a condensed Gladue report. It helps to mitigate trauma, as our writers do not conduct extensive interviews with clients and interview subjects that may re-traumatize them when the liberty risks to the client are minimal,” Hilland said of the letters originally developed by Toronto’s Aboriginal Legal Services.
“We’ve had cases where because of a tight deadline or non-verbal client, a letter is more suitable or is requested by defence. A letter is often preferable for youth, for clients deep in their addictions, or for those who are non-verbal as the letter allows us to provide a more succinct Gladue product, without large quotes and secondary interviews. It is trauma-informed not to push such individuals to have frequent interviews that may be triggering when they are already in difficult circumstances.”
The Gladue report is for custodial or enforcement sentencing, dangerous offender hearings, long-term offender hearings and parole hearings with the B.C. Review Board on a case-by-case basis, Hilland said.
“We accept requests from defence counsel or clients to provide either a letter or report, we have discretion and are not rigid in our approach to the product,” she said.
Are people being sentenced without Gladue reports?
The council said no request for a Gladue report has been declined.
“In all circumstances, where further information has been provided by defence at the request stage, BCFNJC has been able to triage the request and provide a letter or report,” Hilland said. “In circumstances where BCFNJC is unable to provide a letter or report, due to an urgent timeline or where the delayed production of a letter or report would be longer than the time served, this is communicated by BCFNJC.”
She said that, in such situations, defence lawyers are encouraged to fulfil their obligations to bring Gladue information to the court and confirm that the judiciary will ensure that this work is being done in the absence of a report or letter.
When the Gladue Services Division (GSD) is unable to provide a letter or report, an Indigenous court worker and Native Courtworker and Counselling Association of BC work closely with council to ensure Gladue submissions are made at sentencing, as they have historically done.
Past problems
It‘s a system Glacier Media first looked at in 2022.
At that time, Amanda Carling, then acting BC First Nations Justice Council executive director, now BCFNJC CEO, said the demand for the reports had grown consistently since the council took on the responsibility from Legal Aid BC.
“This move is part of ongoing work to restore Indigenous justice systems and improve our current system to better support Indigenous communities,” the ministry said.
At that point, Carling said, structure and processes of GSD inherited from Legal Aid BC were inadequate to meet the increased demand for services, which led to a backlog of unfulfilled report requests.
She noted there are still many Indigenous people in B.C. who are being sentenced to long terms of custody without the benefit of a Gladue report.
By the next fiscal year, Carlin said a $500,000 budget shortfall was forecast. While funding has picked up, problems remain, she said.
Demand still exceeds capacity
Hilland told Glacier Meida demand still exceeds supply and capacity.
“The temporary triage policy allows us to prioritize the assigning of writers to report requests and address delays in delivering reports in a timely manner,” she said.
She added the Gladue Services Division expanded its team in June 2023 from two full-time writers to a team of 13. It's currently transitioning to a staff model of permanent, full-time writers to stabilize availability and improve the service quality.
Arnet-Zargarian said the triage system allows full reports for people facing more than two years in prison and letters for those facing less than that. If a potential sentence is six months or less, there’s nothing. However, any youth is eligible for a letter or report.
By the numbers
Currently, B.C. provides $1.24 million to the system while the federal government funds $430,000.
However, for the 2023/2024 fiscal year, B.C. provided an additional $400,000 for reports and costs. Ottawa also provided funding for Gladue training and additional funding in 2022/2023 to help with the pressure. The federal government has provided $430,000 for fiscal year 2022/23 to support Gladue services and reports, and $300,000 in support of Gladue principles in B.C.
“BCFNJC would have run a deficit if it were not for the additional funding from B.C., Canada, and the Law Foundation of BC,” Hilland said. “This suggests that the current levels of annual funding may not be adequate to support long-term, sustainable operations.”
The ministry provided Glacier Media with a yearly breakdown of funding and report requests:
• 2017-18: $213,346, 136 reports requested;
• 2018-19: $322,063, 240 reports requested;
• 2019-20: $454,059, 298 reports requested;
• 2020-21: $351,281, 259 reports requested;
• 2021-22: $111,602 (LABC), $1,246,000 (BCFNJC), 455 reports requested;
• 2022-23: $1,246,000, 511 reports requested; and,
• 2023-24: $1,646,000, 575 reports requested.
As the council works with the province to secure more funding to meet growing demand, it has been seeking external funding through avenues such as grants, said Hilland. It has also been improving its information gathering process to better manage requests and reduce delays.
Court and custody time
Arnet-Zargarian, a director of the Criminal Defence Advocacy Society, said there’s an added problem for the justice system as a whole. He said when reports are expected for booked hearings but don’t arrive, valuable court time is wasted.
“This has an insidious effect on the court system,” he said. “Government could provide funding but prioritizes other, political matters.”
As the system bogs down, he said, defendants who haven’t got bail remain in custody longer before sentencing.
“We’re concerned about our clients spending too long in custody,” he said.
