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Guide for the Legal Review of Gladue Reports

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Guide for the Legal Review of Gladue Reports Guide for the Legal Review of Gladue Reports Symbol alone ie. banners February 2021 © 2021 Legal Services Society, BC First edition: February 2021 ISBN 978-1-927661-15-4 (Print) ISBN 978-1-927661-11-6 (Online) Acknowledgements Published on the unceded traditional territory of the Coast Salish peoples, including the territories of the xʷməθkʷəy̓ əm (Musqueam), Sḵwx̱wú7mesh (Squamish), and səl̓ílwətaʔɬ/Selilwitulh (Tsleil-Waututh) Nations. Writer: Marie-Andrée Denis-Boileau Editor: Grace Yaginuma Layout: Tamara Abram Cover layout: Brian Goncalves Project sponsors: Rhaea Bailey and Jenny Reid Reviewer: Joleen Steininger The Indigenous Services and Community and Publishing Services Departments created and maintain this publication collaboratively. Indigenous Services Department staff are primarily Indigenous people, including Rhaea Bailey, who manages the department and Gladue program. Thank you to the following who gave their valuable feedback for this publication: Rhaea Bailey, Joleen Steininger, Mitch Walker, Claire Tollefson, Chris Darnay, Brian Dybwad, Cara Hunt, and Thomas Vincent Martin. We also want to thank Benjamin Ralston, Lyne St-Louis, Jonathan Rudin, Anisa White, and Katherine LeReverend for sharing valuable information. This publication may not be commercially reproduced, but copying for other purposes, with credit, is encouraged. The Guide for the Legal Review of Gladue Reports is published by Legal Aid BC (LABC), a non-profit organization that provides legal aid to British Columbians. LABC is separate from the BC government, its primary funder. It also receives grants from the Law Foundation and the Notary Foundation (of BC). This publication explains the law in general and is to be considered as a set of guidelines. It is intended to help you with the task of legally reviewing Gladue reports. Be aware that the law and practices keep evolving. This information in this publication is up to date as of February 2021. Contents Preface ......................................................................................................................... ii Part I What is a Gladue report? ....................................................................................... 1 1. A different form of a pre-sentence report ......................................................................... 2 2. Bringing case-specific information to the court: Legal principles ........................................ 6 2.1. At the sentencing stage ....................................................................................................... 6 2.2. At the bail stage ................................................................................................................ 10 Part II What should a legal reviewer look for when reviewing a Gladue report? ................................................................................................... 26 3. Can judges fulfill their duties? ........................................................................................ 27 3.1. At the sentencing stage ..................................................................................................... 27 3.2. At the bail stage ................................................................................................................ 31 4. Gladue reports for resolution discussions ........................................................................39 5. Are there legal issues with the report? ............................................................................ 41 5.1. The involvement of the Ministry of Children and Family Development (MCFD) ................ 41 5.2. Disclosure of past criminal behaviours .............................................................................. 42 5.3. New facts or a different version of the facts relating to the offence .................................. 48 5.4. Unsubstantiated “facts” .................................................................................................... 48 5.5. Statements that contradict a guilty plea ........................................................................... 49 5.6. Co-accused ........................................................................................................................ 49 5.7. Victims who are minors ..................................................................................................... 49 6. Are there any quality issues with the report? ................................................................... 50 6.1. Is the report neutral, balanced, and objective? .................................................................. 50 6.2. Are there any issues with the narrative? ............................................................................ 54 6.3. Are the standard details included in the report? ................................................................ 55 6.4. Are there any editorial issues? ........................................................................................... 56 7. Are there any practical issues with the report? ................................................................ 58 Part III Conclusion ....................................................................................................... 59 Appendix: Checklist for the legal review of Gladue reports ............................................. 60 Bibliography ............................................................................................................... 65 i Preface This guide is the approach taken by the Legal Aid BC Gladue Program up until March 31, 2021, when accountability for the program was transferred to the First Nations Justice Council. Legal Aid BC required the Gladue report writers on its roster to produce high-quality reports that the subject of the report and the courts can depend upon. The writers are entrusted with the sacred stories of Indigenous people that are presented to the courts. Legal Aid BC published the Best Practices for Writing Gladue Reports and Understanding Gladue Principles to support writers in their work. Legal Aid BC had contracts with legal reviewers who go through every Gladue report submitted to the court as a quality assurance measure. This Guide for the Legal Review of Gladue Reports has been written for their benefit and follows the same guidelines as the Best Practices for Writing Gladue Reports and Understanding Gladue Principles. ii A note on terminology Unless directly quoting or referring to a legally defined concept, this report prefers the term Indigenous to Aboriginal. Here is a brief explanation. Aboriginal, when used in Canada, usually refers specifically to the first inhabitants of Canada, and includes First Nations, Inuit, and Métis peoples.1 It is from the Latin ab origine, which translates to “from the beginning.”2 Canadian legal documents such as the Constitution Act, 1982,3 and decisions of the Supreme Court of Canada use the term Aboriginal more than any other. For this reason, Aboriginal can sometimes be part of a defined Canadian legal concept. For example, the Constitution of Canada recognizes the rights of the “aboriginal peoples of Canada,”4 which includes “Indian, Inuit and Métis peoples of Canada.”5 Indigenous is more often used internationally and encompasses a variety of peoples. Canada has also embraced this term. The United Nations has refrained from defining Indigenous for many reasons, including the need for flexibility and to respect the desire and right of each Indigenous people to define themselves.6 However, there is an often-cited working definition that was developed in the 1980s (specifically by José Martínez Cobo, the Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities):7 1. “Terminology,” Identity, Indigenous Foundations, First Nations Studies Program, last modified 2009, indigenousfoundations.arts.ubc.ca/terminology/. 2. Legal Aid BC, A Teacher’s Guide to A Second Chance: A Gladue Rights Story (Vancouver, BC: Legal Aid BC: 2020), 42. 3. Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. 4. Ibid., s 35(1). 5. Ibid., s 35(2). Another example is “Aboriginal title” in Tsilhqot’in Nation v British Columbia, 2014 SCC 44 [Tsilhqot’in Nation]. 6. Asia Pacific Forum of National Human Rights Institutions and the Office of the United Nations High Commissioner for Human Rights, The United Nations Declaration on the Rights of Indigenous Peoples: A Manual for National Human Rights Institutions (Sydney, Australia, and Geneva, Switzerland: United Nations, 2013), ohchr.org/documents/issues/ipeoples/undripmanualfornhris.pdf, 6–8. 7. This definition is cited in ibid., 6. iii Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing on those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems.8 “Aboriginal law” can be a confusing expression, as it frequently refers to both the body of Canadian law as it applies to Aboriginal peoples9 and the body of laws developed and maintained by Aboriginal peoples themselves.10 “Indigenous
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