R. v. C.J.H.I. Date:, 2017 BCPC 121

Citation: R. v. C.J.H.I. Date: 20170413 2017 BCPC 121 File No: 217754-3-KA Registry: Surrey Registry IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. C.J.H.I. SUPPLEMENTAL RULING ON GLADUE APPLICATION OF THE HONOURABLE JUDGE A. WOLF Counsel for the Crown: K. McIntosh Counsel for the Defendant: J. Davidson Place of Hearing: Surrey , B.C. Date of Hearing: April 4 and 5, 2017 Date of Judgment: April 13, 2017

[1] These are the supplemental written reasons regarding a defence application for a Gladue report. I appreciate the complexitiesof language and that certain words may be preferred, depending on their legal or social context. However, I will use the word‘Indigenous’ in these reasons, as I prefer it when talking about rights of an accused person that has self-identified as being of aboriginalheritage. BRIEF INTRODUCTION [2] C.J.H.I. (“Mr. I.”) was to have a trial for a domestic assault charge on April 4, 2017. That trial was adjourned. Mr.

I., later thatday, was taken into custody on a new charge of breaching his bail conditions. Specifically, he is alleged to have had contact with thecomplainant when he was not supposed to. He was released on judicial interim release. [3] Ms. Davidson, counsel for Mr. I., then entered a plea of guilty on behalf of her client and then requested that a Gladue report beprepared. [4] She began her request with these words: As Your Honour knows, it‘s a long and onerous process to get Legal Aid to even agree to fund a Gladue report.

Given my friend’sposition on sentencing and Mr. [I.’s] background, I’m of the position that a Gladue report will be extremely helpful…. MY INITIAL VIEW [5] It is my view that a Gladue report will almost always be of some benefit to the court. However, I am mindful that these reportscost money. Should an accused have the benefit of a full report for a breach of bail charge? Even if jail is being sought by the Crown?

HISTORY OF WHY WE HAVE GLADUE REPORTS [6] I cannot say it any more clearly than the 1995 Royal Commission on Aboriginal peoples that wrote: “The Canadian criminaljustice system has failed the Aboriginal peoples of Canada…The principal reason for this crushing failure is the fundamentally differentworld views… as to the process of achieving justice.” [7] In 1996, our Criminal Code of Canada was revised and s. 718.2(

e) was incorporated. It is worth repeating as it is a reminder asto what I must do as a judge when I impose a sentence on an Indigenous offender. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. [8] In 1999, the Supreme Court of Canada provided this court with guidance in the R. v. Gladue case, (SCC),[1999], 1 S.C.R. 688. [9] I quote from paragraphs 66 to 85 of that case. It is a lengthy quote, but every word in my view is worth repeating. E. A Framework of Analysis for the Sentencing Judge

(1) What Are the “Circumstances of Aboriginal Offenders”? [66] How are sentencing judges to play their remedial role? The words of s. 718.2(

e) instruct the sentencing judge to pay particularattention to the circumstances of aboriginal offenders, with the implication that those circumstances are significantly different from thoseof non-aboriginal offenders. The background considerations regarding the distinct situation of aboriginal peoples in Canada encompass awide range of unique circumstances, including, most particularly: (

A) The unique systemic or background factors which may have played a

part in bringing the particular aboriginal offender beforethe courts; and (

B) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of hisor her particular aboriginal heritage or connection. (

a) Systemic and Background Factors [67] The background factors which figure prominently in the causation of crime by aboriginal offenders are by now well known. Years of dislocation and economic development have translated, for many aboriginal peoples, into low incomes, high unemployment,lack of opportunities and options, lack or irrelevance of education, substance abuse, loneliness, and community fragmentation. Theseand other factors contribute to a higher incidence of crime and incarceration.

A disturbing account of these factors is set out by ProfessorTim Quigley, “Some Issues in Sentencing of Aboriginal Offenders”, in Continuing Poundmaker and Riel’s Quest (1994), at pp.269-300. Quigley ably describes the process whereby these various factors produce an overincarceration of aboriginal offenders, noting(at pp. 275-76) that “[t]he unemployed, transients, the poorly educated are all better candidates for imprisonment.

When the social,political and economic aspects of our society place Aboriginal people disproportionately within the ranks of the latter, our societyliterally sentences more of them to jail.” [68] It is true that systemic and background factors explain in part the incidence of crime and recidivism for non-aboriginal offendersas well. However, it must be recognized that the circumstances of aboriginal offenders differ from those of the majority because many

aboriginal people are victims of systemic and direct discrimination, many suffer the legacy of dislocation, and many are substantially affected by poor social and economic conditions.

Moreover, as has been emphasized repeatedly in studies and commission reports, aboriginal offenders are, as a result of these unique systemic and background factors, more adversely affected by incarceration and less likely to be “rehabilitated” thereby, because the internment milieu is often culturally inappropriate and regrettably discrimination towards them is so often rampant in penal institutions. [69] In this case, of course, we are dealing with factors that must be considered by a judge sentencing an aboriginal offender.

While background and systemic factors will also be of importance for a judge in sentencing a non-aboriginal offender, the judge who is called upon to sentence an aboriginal offender must give attention to the unique background and systemic factors which may have played a

part in bringing the particular offender before the courts. In cases where such factors have played a significant role, it is incumbent upon the sentencing judge to consider these factors in evaluating whether imprisonment would actually serve to deter, or to denounce crime in a sense that would be meaningful to the community of which the offender is a member. In many instances, more restorative sentencing principles will gain primary relevance precisely because the prevention of crime as well as individual and social healing cannot occur through other means. (

b) Appropriate Sentencing Procedures and Sanctions [70] Closely related to the background and systemic factors which have contributed to an excessive aboriginal incarceration rate are the different conceptions of appropriate sentencing procedures and sanctions held by aboriginal people. A significant problem experienced by aboriginal people who come into contact with the criminal justice system is that the traditional sentencing ideals of deterrence, separation, and denunciation are often far removed from the understanding of sentencing held by these offenders and their community. The aims of restorative justice as now expressed in paras. ( d ), ( e ), and (

f) of s. 718 of the Criminal Code apply to all offenders, and not only aboriginal offenders. However, most traditional aboriginal conceptions of sentencing place a primary emphasis upon the ideals of restorative justice. This tradition is extremely important to the analysis under s. 718.2( e ). [71] The concept and principles of a restorative approach will necessarily have to be developed over time in the jurisprudence, as different issues and different conceptions of sentencing are addressed in their appropriate context.

In general terms, restorative justice may be described as an approach to remedying crime in which it is understood that all things are interrelated and that crime disrupts the harmony which existed prior to its occurrence, or at least which it is felt should exist. The appropriateness of a particular sanction is largely determined by the needs of the victims, and the community, as well as the offender. The focus is on the human beings closely affected by the crime.

See generally, e.g., Bridging the Cultural Divide , supra , at pp. 12-25; The Justice System and Aboriginal People , supra , at pp. 17-46; Kwochka , supra ; M. Jackson, “In Search of the Pathways to Justice: Alternative Dispute Resolution in Aboriginal Communities”, [1992] U.B.C. L. Rev . (Special Edition) 147. [72] The existing overemphasis on incarceration in Canada may be partly due to the perception that a restorative approach is a more lenient approach to crime and that imprisonment constitutes the ultimate punishment.

Yet in our view a sentence focussed on restorative justice is not necessarily a “lighter” punishment. Some proponents of restorative justice argue that when it is combined with probationary conditions it may in some circumstances impose a greater burden on the offender than a custodial sentence. See Kwochka , supra , who writes at p. 165: At this point there is some divergence among proponents of restorative justice. Some seek to abandon the punishment paradigm by focusing on the differing goals of a restorative system.

Others, while cognizant of the differing goals, argue for a restorative system in terms of a punishment model. They argue that non-custodial sentences can have an equivalent punishment value when produced and administered by a restorative system and that the healing process can be more intense than incarceration. Restorative justice necessarily involves some form of restitution and reintegration into the community. Central to the process is the need for offenders to take responsibility for their actions. By comparison, incarceration obviates the need to accept responsibility.

Facing victim and community is for some more frightening than the possibility of a term of imprisonment and yields a more beneficial result in that the offender may become a healed and functional member of the community rather than a bitter offender returning after a term of imprisonment. [73] In describing in general terms some of the basic tenets of traditional aboriginal sentencing approaches, we do not wish to imply that all aboriginal offenders, victims, and communities share an identical understanding of appropriate sentences for particular offences and offenders.

Aboriginal communities stretch from coast to coast and from the border with the United States to the far north. Their customs and traditions and their concept of sentencing vary widely.

What is important to recognize is that, for many if not most aboriginal offenders, the current concepts of sentencing are inappropriate because they have frequently not responded to the needs, experiences, and perspectives of aboriginal people or aboriginal communities. [74] It is unnecessary to engage here in an extensive discussion of the relatively recent evolution of innovative sentencing practices, such as healing and sentencing circles, and aboriginal community council projects, which are available especially to aboriginal offenders.

What is important to note is that the different conceptions of sentencing held by many aboriginal people share a common underlying principle: that is, the importance of community-based sanctions. Sentencing judges should not conclude that the absence of alternatives specific to an aboriginal community eliminates their ability to impose a sanction that takes into account principles of restorative justice and the needs of the parties involved.

Rather, the point is that one of the unique circumstances of aboriginal offenders is that community-based sanctions coincide with the aboriginal concept of sentencing and the needs of aboriginal people and communities. It is often the case that neither aboriginal offenders nor their communities are well served by incarcerating offenders, particularly for less serious or non-violent offences. Where these sanctions are reasonable in the circumstances, they should be implemented.

In all instances, it is appropriate to attempt to craft the sentencing process and the sanctions imposed in accordance with the aboriginal perspective.

(2) The Search for a Fit Sentence [75] The role of the judge who sentences an aboriginal offender is, as for every offender, to determine a fit sentence taking into account all the circumstances of the offence, the offender, the victims, and the community. Nothing in

Part XXIII of the Criminal Code alters this fundamental duty as a general matter. However, the effect of s. 718.2( e ), viewed in the context of

Part XXIII as a whole, is to

alter the method of analysis which sentencing judges must use in determining a fit sentence for aboriginal offenders.

Section 718.2(e)requires that sentencing determinations take into account the unique circumstances of aboriginal peoples. [76] In R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at p. 567, Lamer C.J. restated the long-standing principle ofCanadian sentencing law that the appropriateness of a sentence will depend on the particular circumstances of the offence, the offender,and the community in which the offence took place. Disparity of sentences for similar crimes is a natural consequence of thisindividualized focus.

As he stated: It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime…Sentencing is an inherentlyindividualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be afruitless exercise of academic abstraction.

As well, sentences for a particular offence should be expected to vary to some degree acrossvarious communities and regions of this country, as the “just and appropriate” mix of accepted sentencing goals will depend on the needsand current conditions of and in the particular community where the crime occurred. [77] The comments of Lamer C.J. are particularly apt in the context of aboriginal offenders. As explained herein, the circumstancesof aboriginal offenders are markedly different from those of other offenders, being characterized by unique systemic and backgroundfactors.

Further, an aboriginal offender’s community will frequently understand the nature of a just sanction in a manner significantlydifferent from that of many non-aboriginal communities. In appropriate cases, some of the traditional sentencing objectives will becorrespondingly less relevant in determining a sentence that is reasonable in the circumstances, and the goals of restorative justice willquite properly be given greater weight.

Through its reform of the purpose of sentencing in s. 718, and through its specific directive tojudges who sentence aboriginal offenders, Parliament has, more than ever before, empowered sentencing judges to craft sentences in amanner which is meaningful to aboriginal peoples. [78] In describing the effect of s. 718.2(

e) in this way, we do not mean to suggest that, as a general practice, aboriginal offenders mustalways be sentenced in a manner which gives greatest weight to the principles of restorative justice, and less weight to goals such asdeterrence, denunciation, and separation. It is unreasonable to assume that aboriginal peoples themselves do not believe in theimportance of these latter goals, and even if they do not, that such goals must not predominate in appropriate cases.

Clearly there aresome serious offences and some offenders for which and for whom separation, denunciation, and deterrence are fundamentally relevant. [79] Yet, even where an offence is considered serious, the length of the term of imprisonment must be considered. In somecircumstances the length of the sentence of an aboriginal offender may be less and in others the same as that of any other offender.

Generally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment foraboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing. [80] As with all sentencing decisions, the sentencing of aboriginal offenders must proceed on an individual (or a case-by-case) basis: For this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under theCriminal Code? What understanding of criminal sanctions is held by the community?

What is the nature of the relationship betweenthe offender and his or her community? What combination of systemic or background factors contributed to this particular offendercoming before the courts for this particular offence? How has the offender who is being sentenced been affected by, for example,substance abuse in the community, or poverty, or overt racism, or family or community breakdown? Would imprisonment effectivelyserve to deter or denounce crime in a sense that would be significant to the offender and community, or are crime prevention and othergoals better achieved through healing?

What sentencing options present themselves in these circumstances? [81] The analysis for sentencing aboriginal offenders, as for all offenders, must be holistic and designed to achieve a fit sentence inthe circumstances. There is no single test that a judge can apply in order to determine the sentence. The sentencing judge is required totake into account all of the surrounding circumstances regarding the offence, the offender, the victims, and the community, including theunique circumstances of the offender as an aboriginal person.

Sentencing must proceed with sensitivity to and understanding of thedifficulties aboriginal people have faced with both the criminal justice system and society at large. When evaluating these circumstancesin light of the aims and principles of sentencing as set out in

Part XXIII of the Criminal Code and in the jurisprudence, the judge muststrive to arrive at a sentence which is just and appropriate in the circumstances. By means of s. 718.2(e), sentencing judges have beenprovided with a degree of flexibility and discretion to consider in appropriate circumstances alternative sentences to incarceration whichare appropriate for the aboriginal offender and community and yet comply with the mandated principles and purpose of sentencing. Inthis way, effect may be given to the aboriginal emphasis upon healing and restoration of both the victim and the offender.

(3) The Duty of the Sentencing Judge [82] The foregoing discussion of guidelines for the sentencing judge has spoken of that which a judge must do when sentencing anaboriginal offender. This element of duty is a critical component of s. 718.2(e). The provision expressly provides that a court thatimposes a sentence should consider all available sanctions other than imprisonment that are reasonable in the circumstances, and shouldpay particular attention to the circumstances of aboriginal offenders.

There is no discretion as to whether to consider the unique situationof the aboriginal offender; the only discretion concerns the determination of a just and appropriate sentence. [83] How then is the consideration of s. 718.2(

e) to proceed in the daily functioning of the courts? The manner in which thesentencing judge will carry out his or her statutory duty may vary from case to case. In all instances it will be necessary for the judge totake judicial notice of the systemic or background factors and the approach to sentencing which is relevant to aboriginal offenders. However, for each particular offence and offender it may be that some evidence will be required in order to assist the sentencing judgein arriving at a fit sentence.

Where a particular offender does not wish such evidence to be adduced, the right to have particular attentionpaid to his or her circumstances as an aboriginal offender may be waived. Where there is no such waiver, it will be extremely helpful tothe sentencing judge for counsel on both sides to adduce relevant evidence.

Indeed, it is to be expected that counsel will fulfil their roleand assist the sentencing judge in this way. [84] However, even where counsel do not adduce this evidence, where for example the offender is unrepresented, it is incumbentupon the sentencing judge to attempt to acquire information regarding the circumstances of the offender as an aboriginal person.

Whether the offender resides in a rural area, on a reserve or in an urban centre the sentencing judge must be made aware of alternatives to incarceration that exist whether inside or outside the aboriginal community of the particular offender. The alternatives existing in metropolitan areas must, as a matter of course, also be explored. Clearly the presence of an aboriginal offender will require special attention in pre-sentence reports.

Beyond the use of the pre-sentence report, the sentencing judge may and should in appropriate circumstances and where practicable request that witnesses be called who may testify as to reasonable alternatives. [85] Similarly, where a sentencing judge at the trial level has not engaged in the duty imposed by s. 718.2(

e) as fully as required, it is incumbent upon a court of appeal in considering an appeal against sentence on this basis to consider any fresh evidence which is relevant and admissible on sentencing. In the same vein, it should be noted that, although s. 718.2(

e) does not impose a statutory duty upon the sentencing judge to provide reasons, it will be much easier for a reviewing court to determine whether and how attention was paid to the circumstances of the offender as an aboriginal person if at least brief reasons are given. WHAT ARE THE UNIQUE CIRCUMSTANCES OF INDIGENOUS PEOPLES IN CANADA? [ 10 ] The Royal Commission on Aboriginal Peoples was published in 1995. The last residential school closed in 1996. Residential Schools [ 11 ] There were approximately 130 of these schools. Approximately 150,000 children went to them. They did not go to these schools by choice.

It was a government program that forcibly removed Indigenous children from their homes. They were sent to schools, forbidden to speak their own language or practice their culture. The intent of the residential school system was to educate, assimilate, and integrate Indigenous children into Canadian society. The phrase ‘to kill the Indian in the child’ is one that is often used to best describe the intent of the schools. The odds of a child dying in the residential school system were one in twenty five.

This number is almost identical to the odds of a Canadian soldier serving in World War II, which was one in twenty six. [ 12 ] There are many statistics that make me pause. There is a six out of ten chance that an Indigenous child living on a reserve will drop out of school. Some academics report that statistically, an indigenous child has just as good a chance to go to jail as finish high school. [ 13 ] It has been nearly twenty years since the Gladue case. Yet, it appears that our Indigenous population is still greatly overrepresented in our jails. Some of the Caselaw [ 14 ] R. v.

McCook, 2015 BCPC 1 , is a decision of The Honourable Judge Brecknell. Under the heading of “ Gladue report” between paragraphs 51 to 78 he surveys the issues regarding courts and Gladue reports. To summarize that part of the decision, it appears that a court may order a report, but a defence counsel would have to then figure out how to get a report. Often, but not always, a client might be retained through the Legal Services Society of British Columbia. In those circumstances, defence counsel could request that a report be funded.

Risk of jail and connection to things such as residential school are part of the considerations. [ 15 ] R. v. Lawson , 2012 BCCA 508 , is a case that provides guidance to me from the British Columbia Court of Appeal. It is clear to me that in order to discharge my duties I need not have an actual Gladue report. I simply need to have the information provided to me. [ 16 ] I accept that there is no magic in the words ‘ Gladue ’ report. I further appreciate that there are other ways to obtain information with respect to what I call ‘ Gladue Factors’.

QUESTIONS TO COUNSEL: HOW CAN I GET THE APPROPRIATE INFORMATION? [ 17 ] I note that there may be some strength to the argument that a court has no authority to order a Gladue report. I am certainly mindful that there has been a case where a court made the order, but the accused was not able to pay for one and was not able to request that Legal Services fund one, as he was not a Legal Services client. In such a case, an order to produce a Gladue report can be nearly impossible to fulfill. Yet, R. v. Lawson , 2012 BCCA 508 and R. v.

R.L.W , 2013 BCCA 50 are two examples of cases where it appears the Court of Appeal took no issue with the trial judge ordering a Gladue report. [ 18 ] A brief glance at Ontario offers the case of R. v. Pepin , 2013 ONCA 168 as an example of a Judges ability to order a Gladue report. [ 19 ] The Alberta Court of Appeal case of R. v. Mattson , 2014 ABCA 1778 decided that the well-known case of R. v. Ipeelee , 2012 SCC 13 requires that a Gladue report be prepared in the course of sentencing an Aboriginal offender.

At paragraph 50 the court writes: It is clear from the decision in Ipeelee that when sentencing an Aboriginal it is required that a Gladue report be prepared…in all future sentencing hearings involving Aboriginals, a Gladue report must be tendered. [ 20 ] As I understand Alberta’s Justice system, all Indigenous offenders who request a Gladue report get one. They are paid for by an independent agency that has the contract with the Alberta government to provide these reports. [ 21 ] Indigenous offenders in other jurisdictions also always get a Gladue report if they want one.

Sometimes it is paid for by the individual accused. Sometimes if they are a member of a First Nation, they will get assistance from their Nation. Other times, they are prepared by independent writers, occasionally employed by the probation services department of their province. [ 22 ] The defence application for the report was founded on a submission that the accused was a “gentleman of Aboriginal background.” Further that his life has been “impacted by intergenerational family upheaval and also substance abuse, that [Mr.

I.] is a – exactly the person that a Gladue report should be made for.” While I did not request information as to the nature of the accused’s retainer with her client, I take from her submission that she will be requesting a report be funded by the Legal Services Society. The

Crown took no position as to the request. They did confirm that Mr. I. “has self-identified to police as being of First Nations heritage.” Does there have to be a risk of jail? [ 23 ] It is my understanding that if an accused is at risk of jail and they meet a certain financial criteria, then a lawyer can be appointed to assist them by our British Columbian legal aid scheme. Here, I am told this accused is at risk of jail.

He wants a Gladue report, yet there is no guarantee that he will get one. [ 24 ] To be clear, I am of the view that ‘the risk of jail’ is an artificial threshold that is not designed to address the unique circumstances of Aboriginal offenders. To be clear, regarding Mr. I., there is a risk of jail. However, even if there was not, should he not also benefit from being able to access justice? If we are only providing reports to those who are at risk of jail, are we already too late? I note that many Gladue reports have been ordered in our New Westminster First Nations court.

Often, the accused is not at great risk of jail due to the circumstances of the offence and other factors. However, in my respectful view, the sentencing Judge always benefits from the information in a Gladue report. [ 25 ] Imagine a young Indigenous person, making their way through the youth system, never having the benefit of a Gladue report; graduating into an arena of adult Criminal Code charges; finally ending up in jail for some crime, such as a breach of probation. Would they have ended up there if they had the benefit of a Gladue report at an early stage of their lives?

Is it possible that early culturally appropriate interventions might have been suggested in a Gladue report? Perhaps a criminal record might have been avoided, thus increasing the chance of employment. There are endless possible outcomes that exist for an Indigenous person with a Gladue report versus those that do not have the benefit of one. For a greater understanding of these issues please see the complete and well prepared 80 page Evaluation Report on the Legal Services Gladue Pilot Project. Can Justice be Accessed without a Gladue Report?

Or to put it another way, are there alternative mechanisms that can provide me the information I need? [ 26 ] I asked counsel whether her client was in a position to pay for a Gladue report, if he could not access funds through other agencies such as the legal Services Society. Counsel for the accused said “no”. I am told that he pays child support for children and is in school full-time. It was further submitted that the cost of paying for a privately funded Gladue report is expensive. [ 27 ] Could one be done pro bono - or free by someone?

Defence counsel confirmed that she would ‘be able to speak to people’ about the impacts of residential school on Mr. I. and his family. However, she points out that “I’ve found that the work I can do in that area is restricted by my resources and my time and, frankly, who I can get to pick up the phone”. To summarize her position, she can provide some information but she agreed that she would not be in a position to provide full information. [ 28 ] Can the Crown provide information concerning this particular Indigenous accused and Gladue factors? Ms.

McIntosh for the Crown submitted that: Crown’s not in possession of any information other than what I’ve said, that he self-identified to police as being First Nations heritage. Beyond that, I am not aware of any further information and I don’t have access to the means to dig further beyond simply getting in touch with, say, probation and bail officers.

But generally, the information they provide the Crown is simply information that the client has self-reported to them so I don’t suspect that that would be any further information than what my friend could provide to the court from Mr. [I.]. [ 29 ] I surveyed whether either counsel have put their minds to a pre-sentence report with a Gladue component or whether he could provide information himself. Defence counsel submitted that they were unclear as to whether Mr. I. could provide information about his elders and the community that they came from.

While counsel could provide some informational background that they can get from their client, they are of the view a Gladue report will provide more full and complete information. [ 30 ] How about the native court workers? The accused is charged in Surrey, yet he lives in downtown Vancouver. The closest Native Court workers are located in the Main Street court house. Ms. Davidson submits that the court workers are very busy, do their very best to connect people with outside services, but they may not be in the best position to make any kind of in-depth inquiries. I agree.

In my experience, the native court workers are an integral part of British Columbian justice system. They do an excellent job assisting Indigenous clients. But, they cannot provide the type of detailed information that I might receive from counsel or a Gladue report. [ 31 ] In my brief oral reasons, I pointed out that there is no First Nations Court in Surrey and I have no information as to alternative sentencing procedures. It has been brought to my attention that Mr.

I. has been participating in some cultural activities. [ 32 ] At paragraph 7 of the oral decision, I said that “It is unclear to me, based on the information that I have, whether or not the alternatives in the community would be reasonable in the circumstances when I consider that in relation to a period of incarceration.” [ 33 ] At paragraph 16 I concluded, “In the end, I am satisfied, since we are talking about jail versus non-jail, that I need to consider alternatives, alternative sanctions, as well as alternative processes or procedures and it is incumbent on me to make sure I have that information before me.” [ 34 ] It is my view that a Gladue report will provide me with information that I cannot otherwise acquire. [ 35 ] At paragraphs 17 and 18, I concluded my oral reasons: [17] In the circumstances, I am also satisfied that a Gladue report would be extremely helpful and provide me information about this gentleman who self-identifies as a member of one of Canada’s First Nations. [18] In the circumstances, I am satisfied that a Gladue report should be ordered and if, indeed, the nature of the retainer between Mr.

Davidson and Mr. [I.] is accomplished through Legal Services, it is my view that the Legal Services should pay for that report. [ 36 ] To be clear, it does not matter to me who pays for the Gladue report. Whether it be funded privately, accomplished on a pro bono basis, through a First Nation, through Legal Aid, or any other agency. The fact is that Mr. I. self-identifies as an Indigenous offender. He is at risk of jail. I am not satisfied that there are alternatives available that would provide in depth information to me about Mr.

I.’s background. [ 37 ] A Gladue report will help me ensure that all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community will be considered for Mr. I., with particular attention to the circumstances of Mr. I.’s Indigenous circumstances and Gladue factors. [ 38 ] With respect to the harm done to victims or to the community, Ms.

Davidson submits that this case also involves domestic violence and violence within partnerships in the Indigenous community, which is an extremely serious and, unfortunately, all too common matter that comes before the courts … in a situation where alcohol and family violence or substance abuse and family violence come together when both the complainant and the accused are Aboriginal, that a Gladue report…is that much more important. [ 39 ] I agree with the submission that a Gladue report might assist me in determining the harm done to the victim in this case, as well as this Indigenous offender.

The Honourable Judge A. Wolf Provincial Court of British Columbia