Gladue Practices in the Provinces and Territories
6. Results (cont'd)
6.3 Information for the sentencing court (cont'd)
6.3.2 Recommendations of the Crown regarding non‑custodial measures
With respect to non‑custodial
measures, the participants were asked whether, within their jurisdiction,
sentencing recommendations made by the Crown are systematically informed by the
kinds of non-custodial measures available to Aboriginal offenders. Five
jurisdictions answered in the affirmative (Newfoundland and Labrador, Nova Scotia, Ontario, Saskatchewan, Yukon). Nova Scotia pointed out: “The Public
Prosecution Service reports that the Crown leans strongly toward accepting the
recommendations for non-custodial measures available to Aboriginal offenders
where no danger to the community exists.”
Two jurisdictions gave negative
responses because the respondents were not sure whether non‑custodial
measures were “systematically”
considered (New Brunswick, Northwest
Territories). The other jurisdictions were not aware of the Crown’s procedures
or were uncertain how to answer the question. Prince Edward Island and Nunavut explained their reluctance to answer this question:
Difficult to answer as the officers of the courts in smaller communities become aware of sentencing options therefore the measures are not formally sought in each case but are known to the Crown. (Prince Edward Island)
This is problematic. At the outset, Crown sentence positions are almost always appropriately informed by Gladue. However, Crown positions on repeat offences (like substance abuse, administration of justice offences) quickly become jail which is as likely to resolve alcohol abuse as it is to resolve tuberculosis. Given the huge number of these offences, it is easy to just apply the “step principle” and say “kick it up a notch judge; maybe this time he will get the message” which ignores the fact that, in addition to all of the other Gladue issues, there appear to be more administration of justice offences in Aboriginal communities than elsewhere which means that Aboriginal offenders get kicked up a notch faster than non-Aboriginal offenders. It also ignores the huge detection disparity. We have such a high police/population ratio in the north that breaches are readily detectable; in the south this is not the case. The real problem is that the prosecution side of the piece needs to be more therapeutic in its focus. From a therapeutic perspective, the fact that the accused has three more breaches of probation is not as important as the fact that the last time he was in court he had eight breaches of probation (i.e., he has only three charges instead of eight) - he is not perfect, but he is getting better and the breaches are going down. The punitive perspective is “I don't care if he is racking up fewer breaches; he is still breaching - kick it up a notch.” (Nunavut)
6.3.3 Formal policies/directives
Only some jurisdictions have formal administrative policies/directives requesting Crown attorneys/prosecutors to systematically submit information to the court about an Aboriginal person’s background or the availability of non‑custodial sentences. With respect to an Aboriginal offender’s background, only two jurisdictions out of eleven reported that they have formal directives: Ontario and Newfoundland and Labrador. Regarding non‑custodial sentences, three jurisdictions (Newfoundland and Labrador, Ontario, Yukon) said that they have formal directives on this subject. The Newfoundland and Labrador representative cited an official document, Guidebook for Crown Attorneys, which formally directs prosecutors to take into consideration Aboriginal background and the availability of non‑custodial measures at sentencing.
Some jurisdictions that reported not having formal administrative directives for Crown attorneys/prosecutors explained that this type of information is normally submitted to the court through pre‑sentence reports (Nova Scotia, Saskatchewan), by defence counsel (Nunavut) or by prosecutors as a result of their daily experience, despite the lack of formal directives (New Brunswick, Saskatchewan).
6.3.4 Partnerships
Participants were asked if they are aware of any types of partnerships in their jurisdictions between courts and non-governmental organizations whose work is to ensure that Gladue type of information is incorporated systematically into sentencing decision procedures for Aboriginal offenders. Feedback received has pointed to the need to clarify the meaning of “partnership” in this context. Specifically, “partnership”, if understood as a funding agreement, may be between a Ministry (not the court) and a NGO who would then be expected, as part of its agreement, to provide Gladue type of services to select court locations. Conversely, “partnership” may also be understood as the “service delivery relationship” between a court and a NGO independently of any provincial funding agreement. Evidently, the term “partnership” may have been interpreted differently by the participants, thus for the purpose of this study, “partnership” should be interpreted as broadly as possible. Seven jurisdictions (Alberta, Newfoundland and Labrador, Nova Scotia, Northwest Territories, Ontario, Prince Edward Island, Yukon) reported the existence of some types of partnerships in their jurisdictions with NGOs whose role is to ensure that information about an Aboriginal offender’s background and the kinds of non‑custodial sentences available to Aboriginal offenders are incorporated systematically into sentencing decision‑making procedures in selected court locations (see Table 2 for the NGOs mentioned by the participants and their characteristics).
| Province | Name of NGO | NGO receives government funding (federal, provincial/ territorial) | NGO is an Aboriginal organizationFootnote 13 |
|---|---|---|---|
| Alberta | Native Counselling Services of Alberta | Yes | Yes |
| Newfoundland | Innu Band Council | Yes | Yes |
| Nova Scotia | Mi’kmaw Legal Support Network | Yes | Yes |
| Northwest Territories | Community Justice Committees | Yes | Community Justice Committees may be considered Aboriginal organizations, but that depends on their source of funding. |
| Ontario |
|
|
|
| Prince Edward Island | Mi’kmaq Confederacy of PEI Aboriginal Justice Program | Yes | Yes |
| Yukon | A number of community justice committees e.g. Teslin, Haines, Junction. | Does not know | Yes |
The participants from the Northwest Territories and Yukon feel that the community justice committees in their territories may be considered Aboriginal organizations. The Northwest Territories participant explained:
From time to time Community Justice Committees are involved with courts for specific cases. Community Justice is funded (both federal and territorial). Community Justice Committees may be considered an Aboriginal organization but it depends on who sponsors the committee. Some Community Justice committees are funded through the federal Aboriginal Justice Strategy and some through the Government of the Northwest Territories.
The Nova Scotia participant noted that all their courts may ask the Mi’kmaw Legal Support Network to prepare reports and that it also provides information on the available resources in Aboriginal communities.
6.4 Bail and parole hearings
6.4.1 Bail hearings
The participants from eight jurisdictions (Alberta, New Brunswick, Newfoundland and Labrador, Nunavut, Ontario, Prince Edward Island, Saskatchewan, Yukon) stated that bail decision‑making processes are informed by the accused’s background. The Newfoundland and Labrador participant noted:
Where appropriate, this is considered. The considerations under the Criminal Code are the primary consideration. Often, Aboriginal accused in the jurisdiction are from small, largely (mostly) Aboriginal communities. The risk to re-offend and determination of the risk to public safety are considered in the context of the entire community and the circumstances of the accused, as with every bail hearing.
However, it appears that access to personal information about the Aboriginal person or his or her community may be difficult to obtain in the context of bail hearings, as the British Columbia participant explained:
Bail decision-making processes in provincial court include a bit of information on an Aboriginal accused's background but not much time is spent on it. I often ask the accused to
“Tell me more?”At the Justice Centre – there is very little information provided. It is often by video or telephone. There is the issue of distance; the individual is often stood over by the police officer, representing the Crown during the call. The call takes place from within a cell at the local police detachment. The accused does not know the judge. It is just a strange voice over the phone. The environment does not lend itself to sharing personal details/background that would help the individual.
Moreover, seven jurisdictions (Alberta, New Brunswick, Newfoundland and Labrador, Ontario, Prince Edward Island, Saskatchewan, Yukon) reported that bail decision‑making processes are informed by information about the kinds of non‑custodial measures available. In some regions of Ontario, there is currently a pilot program called the Bail Consultation Program, which facilitates communication between Crowns and Aboriginal communities. A participant from that province explained:
Bail consultations help to ensure First Nations accused in remote communities are not transported to urban centres for bail hearings without consideration being given to other forms of release that could respond to the offence committed, while keeping the accused in or near the community where they have access to the support of their family and other community members. A bail consultation process exists in Kenora, Timmins and Cochrane and increases collaboration between designated Crown attorneys and the Nishnawbe-Aski Police Service. In these communities, investigating officers in remote communities have an opportunity to consult by phone with designated Crowns before an Aboriginal accused is removed from the community to assess the suitability of other release options. The goal of this new process is to reduce the number of accused who are removed from remote communities where other options exist and to enhance relationships between Crowns and Nishnawbe-Aski Police.
In the vast majority of
jurisdictions, the professionals responsible for providing this type of
information to the judge are defence counsel, Crown prosecutors or Aboriginal
courtworkers. However, one of the representatives from British Columbia
noted: “A native court worker may be able to gather information. Generally only
superficial information is available through Crown and defence.”
Two provinces
(New Brunswick, Ontario) replied that Aboriginal organizations may also
collect and provide this information. The Saskatchewan participant stated that
probation officers and youth workers may also provide this type of information
on a bail hearing. Last, the participant from Newfoundland and Labrador mentioned community counsellors and representatives of the band council may also
be involved in this processes. That participant added: “Bail hearings can
include evidence from any number of sources including family, community
members, counsellors etc. This varies depending on the individual and the
circumstances.”
Moreover, it is worth noting that, in most jurisdictions, information for bail decision‑making is not standardized (e.g. in a standard form). Only two jurisdictions (Yukon, Saskatchewan) stated that this type of information is standardized.
6.4.2 Parole hearings
In Canada, the Parole Board of Canada (PBC) makes decisions under the Corrections and Conditional Release Act for all parole decisions for federally sentenced offenders in all jurisdictions and for provincial offenders in those jurisdictions that do not have a Provincial Parole Board. Of the thirteen Canadian jurisdictions, only Quebec and Ontario have their own Provincial Parole Boards.
Participants were asked if parole decision‑making processes are informed by an Aboriginal offender's background and by the kinds of reintegration measures available. According to the PBC participant, the decision-making processes for federally sentenced offenders are informed by Gladue type information in all jurisdictions. The PBC participant noted:
When making conditional release decisions, Board members make a thorough assessment of all relevant aspects of the case, including the offender's social history, and systemic or background factors that may have contributed to the offender's involvement in the criminal justice system. Board members receive specific training on Aboriginal offenders and assessments. An offender can also request an Elder Assisted Hearing (EAH) that provides a culturally sensitive hearing process in which Elders can provide the Parole Board of Canada (PBC) members with information about Aboriginal cultures, experiences and traditions that assist Board members when making quality decisions on conditional releases and the safe re-integration of offenders in the community as law abiding citizens.
As part of the decision making process, Board members consider information on different re-integration measures when assessing the offender's release plan and community management strategies, including restorative justice measures, stressors/factors, community programming and interventions, and the Aboriginal community's plan for a Corrections and Conditional Release Act Section 84 release when the offender is released to an Aboriginal community.
According to the participants, in most jurisdictions parole officers or other correctional service employees are responsible for collecting information on the available reintegration measures and presenting it to the Parole Board. British Columbia explained that Elders, psychologists and program delivery officers as well as Aboriginal community development officers may also play a role in obtaining and presenting this type of information. The representative from Prince Edward Island stated: “The process commences at the time of sentence, if the offender agrees. Information accumulates during the sentence and is shared with PBC for their decisions.”
Information for a parole decision is standardized in at leastFootnote 14 five jurisdictions (British Columbia, Nova Scotia, Northwest Territories, Prince Edward Island, Saskatchewan). A British Columbia participant stated: “Information is compiled in accordance with Commissioner’s Directive 712-1, Annex B (Pre-Release Decision Making) in a standardized format.” Similarly, the Parole Board added: “PBC compiles all relevant information of the offender’s file in a standardized package that is utilized by Board members when making conditional release decisions.”
Finally, the participant from Ontario noted that in partnership with the Ontario Parole Board, the Ministry of Community Safety and Correctional Services has piloted Aboriginal Circle Hearings to address the low representation of Aboriginal applicants for early release and parole. The program is being offered at two institutions with plans for future expansion. The majority of applicants under this program have been successful in achieving parole or temporary absence to support treatment plans.
6.5 Other programs
Finally, the respondents were asked whether there are community justice programs/resources and aftercare programs in their jurisdiction.
6.5.1 Community justice programs/resources
Most participants (Alberta, British Columbia, Newfoundland and Labrador, Nova Scotia, Northwest Territories, Ontario, Prince Edward Island, Saskatchewan, Yukon) reported that there are a number of community justice programs/resources in their jurisdiction designed to assist Aboriginal accused/offenders throughout the justice process. In Ontario, 10 programs of this type have been established for adults that serve 24 communities (e.g. the Akwesasne Community Justice Program, the Mnjikaning Community Healing Model, the Miikanaake Community Justice Program and the Sagamok Community Justice Program). In addition Ontario provides funding for 41 programs that are responsive to the needs of youth and provide culturally appropriate programming focused on prevention, diversion, rehabilitation, reintegration and reduction of offending and supports Aboriginal community participation in the development of Youth Justice Committee (YJC) Programs with a focus on Northern Ontario communities. YJC sites currently supported by Aboriginal community organizations (Fort Frances, Thunder Bay and Kenora) contribute to increased Aboriginal access to and participation in justice services. They also provide culturally-sensitive and meaningful alternatives to the formal court system for youth.
The participant from Newfoundland and Labrador cited the Aboriginal Courtworker Program, the Community Justice Forum Program (which deal with both young and adult offenders in Labrador) and the Labrador Corrections Liaison Position (which focuses on establishing a link between the penal institution and the community) while Nova Scotia mentioned the Mik’maw Courtworker Program and the Mik’maw Customary Law Program. The Northwest Territories representative stated that the community justice committees work in cooperation with probation officers and victim services. Likewise, Prince Edward Island stated that it has
… consistently concentrated its efforts and resources on supporting a comprehensive approach to Aboriginal justice with emphasis on sustainability. The Mi’kmaq Confederacy of PEI Aboriginal Justice Program (MCPEI AJP) is intended to benefit all Aboriginal people in PEI. There is an emphasis on collaboration and working across the continuum of justice from prevention to reintegration of offenders.… PEI also has an Aboriginal Case Worker who works out of Clinical Services, Community and Correctional Services… At this time, we have a multi-year Tri-partite Contribution Agreement, excellent leadership provided by the Director of Aboriginal Justice of the MCPEI and ongoing collaboration of the four main Aboriginal groups in PEI through an advisory committee. This leads us closer to the long term goal of creating an environment that allows Aboriginal people to self administer justice by building a traditional justice system based on holistic community values.
Although the programs are in place, it seems there may be a problem with information sharing and communication among the various institutions, based on what one of the representatives from British Columbia wrote:
There are lots of community programs available but they are not connected to the courts or police etc. Do the courts know about these programs? No. Everyone operates in silos.… There is lots of government money to fund treatment etc. but the information on these programs does not get to the Crown or Defence. There is an information breakdown on a daily basis. There is also a huge information sharing gap between the health systems and the justice system in terms of information sharing. There needs to be a plan in place for individuals which include several components: e.g. medical/detox/psychiatric treatment.
While recognizing the need for more effective information sharing, the Saskatchewan participant indicated that privacy and confidentially considerations must also be factored in which may ineluctably impact on the fluidity of information sharing and communications among the various institutions.
Finally, two jurisdictions did not confirm the existence of community programs designed to assist Aboriginal persons throughout the justice process. The New Brunswick representative indicated that he did not know whether this type of program exists while the Nunavut participant noted that, despite the courtworker program, the services provided are most often limited to the beginning of the process:
Our Aboriginal Courtworker Program acts to support defence counsel - there are capacity issues that mean that their role is frequently limited to the intake phase of the judicial process; however … they can be a very useful source of information about the community and offenders.
6.5.2 Aftercare programs
The majority of participants confirmed
that there are aftercare programs or personnel who are assigned the duty of
assisting Aboriginal offenders in carrying out the conditions of their non‑custodial
sentence (Alberta, Newfoundland and Labrador, Nova Scotia, Northwest Territories, Ontario, Prince Edward Island, Saskatchewan, Yukon). In the
case of Newfoundland and Labrador, liaison officers, Aboriginal court workers,
probation officers and “local friendship centres
” perform this duty. The Northwest Territories and Saskatchewan cited probation officers and youth workers.
Community partners provide these services in Nova Scotia through the
Mik'maw Legal Support Network. Similarly, in Prince Edward Island, the
MCPEI AJP provides healing circles for offenders who request them, and the
Aboriginal Caseworker's role is to establish communication between clinic and
community services, and correctional services. In Ontario, notably in Toronto, aftercare workers carry out this duty.
In British Columbia, it appears that while this service exists in a few locations, it is not fully established:
Occasionally, a probation officer or native court worker will assist with after care. This is routinely offered in our one First Nations Court and in Victoria's Integrated Court and Downtown Community Court in Vancouver.
The Nunavut participant stated that because of priorities this type of service is unfortunately not provided and that this, in fact, constitutes a deficit:
We try to do this in our office, but the rate of crime with which we are dealing makes front-line care the best we can do. It would be FANTASTIC!!!! To have something like this in place; this deficit is a huge problem.
6.5.3 Legal Aid Ontario (LAO)
According to our respondent, LAO provides training on Aboriginal culture to its lawyers, but there is no official policy on Gladue submissions. Nonetheless, a number of lawyers voluntarily use the forms made available to them when they prepare sentencing or bail submissions. The Duty Counsel Manual also addresses the Gladue decision and directs lawyers to available resources (e.g. information on programs and services that focus on solutions other than incarceration). Since May, 2009 LAO has asked Aboriginal clients to self-identify. LAO has provided a five-hour extension on criminal certificates for bail and sentencing cases where clients have identified themselves as Aboriginal. LAO also created an information pamphlet explaining the importance of self-identifying as Aboriginal when coming to court.
Legal Aid Ontario (LAO) encourages certificate lawyers to make submissions on behalf of Aboriginal offenders. The encouragement comes in the form of a five hour certificate authorization. LAO is currently in the process of establishing a Gladue lawyer panel (anticipated later this year)Footnote 15 and once this is in place, LAO will be able to enforce minimum standards for counsel and panel membership will be required before the five additional hours may be billed. The minimum standards will require that a lawyer meet specific reading and training requirements.… We also have LAO LAW (our internal legal research department) memoranda; specific research and web links are available on our LAO LAW Lawyers' Website. We have Gladue discussions in our two day Cultural Competency Training sessions in addition to discussing communication with Aboriginal clients and different world views on justice. We have designed and filmed Gladue training that will roll out with the Gladue panel implementation to the private bar and Duty Counsel will also be able to access this training resource.
And last,
LAO provides “Gladue-type” services to accused parties not just “offenders” due to the application of Gladue principles at bail hearings in Ontario. Ontario law requires that Gladue principles apply anytime an Aboriginal person's liberty is at stake. However, to date, LAO is unaware of any circumstance in which it has issued a civil or family certificate for the purposes of making Gladue submissions in an area other than criminal.
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