B.C.’s justice minister and attorney general is breaching the Constitution and ignoring two Supreme Court of Canada rulings aimed at cutting the number of First Nations people behind bars, claims a court challenge to the policy.
Prosecutors, however, have tried to derail the application for a stay of proceedings by offender Barry Dick over the Crown’s refusal to provide a so-called Gladue report, which provides context about an Indigenous offender’s circumstances, the effects of systemic discrimination and culturally appropriate alternatives to prison.
The situation isn’t unique, insisted Dick’s lawyer, Tim Russell, of Victoria’s McCullough Gustafson Watt — it’s common Crown practice.
Russell said in a written submission to support the stay application that the conduct is an abuse of process and violation of Section 7 and 15 rights guaranteed by the Charter.
The failure to provide a Gladue report leaves the court without the necessary information to properly sentence Indigenous offenders and renders the proceedings unfair, he added.
“Further, the only explanation known for the failure of the probation office (which provides the usual pre-sentence reports) is the unwillingness of the minister of justice to expend public funds on court-ordered Gladue reports,” Russell argued.
“Such deliberate non-compliance with court orders would shock the conscience of any reasonable, informed and right-thinking member of society … The abuse of process in this case is particularly aggravated because the refusal of the probation office to comply with the order is taken in almost every case across the province which serves only to perpetuate the systemic discrimination of Aboriginals in the justice system, which is the very evil that the order was intended to alleviate in the first place.”
Attorney General David Eby has continued the government’s long-standing policy of only reluctantly providing these crucial submissions while providing a pittance to the Legal Services Society (LSS) to have them produce a minuscule number.
“This is just plain wrong,” Russell said.
The Supreme Court of Canada concluded in a landmark 1999 ruling, known as Gladue, that steps had to be taken to reduce the disproportionate number of First Nations behind bars that was a legacy of colonialism. The decision involved a First Nations woman from B.C., Jamie Tanis Gladue.
The top bench said the situation was a crisis.
In spite of that, B.C. NDP and Liberal governments dragged their feet. The LSS only started a pilot program providing Gladue reports using private donations in 2011.
The Supreme Court issued another ruling in 2012, called Ipeelee, that reinforced the message of Gladue and darkly pointed out that the situation had gotten much worse.
In the mid-1990s, Indigenous people made up 16 per cent of those in custody; by 2012, it was topping 24 per cent and climbing, even though First Nations constituted only four per cent of the population. The number of Aboriginal women imprisoned was even more disproportionate: 36 per cent. On the Prairies, more than half of those incarcerated were Indigenous.
In this case, Dick pleaded guilty Oct. 13 and a Gladue report was ordered by the judge for Nov. 18. No report was filed, and the order was reconfirmed. There were appearances on Nov. 20, 27; Dec. 4, 7, 13; Jan. 8, 15, 29; and Feb. 19.
Sentencing was set for March 2, but a Gladue report still wasn’t filed.
The Crown refused to comply with the order and on March 12 told Dick he should seek funding from other sources to pay for a report. That’s when Dick applied for the stay and demanded disclosure of any policy concerning how Gladue court orders are handled.
Faced with exposure of what some might consider a colonial approach to providing proper pre-sentence reports, six months after the original order, on April 12, Russell said the Crown told Dick it would pay for a Gladue report on an expedited basis in the expectation that he would withdraw his Charter application.
He refused, and his lawyer said this tactic is part of the government’s standard strategy. In most cases, Russell explained, the Crown delays arguments about the Gladue report until sentencing when the offender acquiesces to being sentenced without the report, “tired of months of delay and seeking closure.”
He said the Crown has offered no explanation for not paying for the court-ordered reports, as it does all other pre-sentence reports by psychiatrists, psychologists, social workers, bail supervisors and others.
“Unless, as here,” he added, “it is in a corner and facing imminent litigation of the issue. This is not conduct that is isolated to this case. There is a deliberate and systematic effort on the part of the Crown to avoid compliance with all such court orders. Further, there is a more generalized effort by the Crown to delay litigation of any challenge to what is a meritless position.”
Mostly, however, the strategy has successfully saved money, Russell noted.
Legal Aid, which has called for dedicated Gladue funding, provided only 131 reports in fiscal 2017-18 and, with increased government funding for them, some 300 of nearly 6,000 Indigenous offenders who qualify for legal aid will receive a report in fiscal 2018-19. That’s right: 300 or .05 per cent
When you consider the average cost is about $1,500, to provide one for all LSS Aboriginal offenders would cost roughly $9 million, plus disbursements and administration expenses. Though that’s just the Indigenous offenders who qualify for legal aid: There are many others.
While recognizing the situation, Eby shrugs it off by saying there is work to be done: “The discussion is around limited government resources. So if you have someone who has committed a criminal offence and there is a criminal report that will assist the judge in understanding why there should be a smaller sentence for that individual given their individual circumstances, I think there is a reasonable discussion about whether that person should be paying for it themselves.”
This continuing ingrained, systemic discrimination violates the Constitution, wilfully ignores the Supreme Court and must be addressed.
A hearing is set for May 30 in Campbell River.
CLICK HERE to report a typo.
Is there more to this story? We’d like to hear from you about this or any other stories you think we should know about. Email email@example.com.
You might also like:
Note from WSOE.Org : This content has been auto-generated from a syndicated feed.