Citation: R. v. T.L.C. 2019 BCPC 314 Date: 20191122 File Nos: 38921-1-K, 39153-3-KA, 39153-2-K Registry: Port Alberni IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. T.L.C. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE A. WOLF Counsel for the Crown: A. Taylor Counsel for the Defendant: J. Wright Place of Hearing: Port Alberni , B.C. Date of Hearing: July 10, 2019 & November 22, 2019 Date of Judgment: November 22, 2019 THE USE OF THE WORD INDIGENOUS IN THESE REASONS

[ 1 ] I use the word “Indigenous” because it is inclusive of what the case law often refers to as “Aboriginal” and in an effort to be inclusive of anyone who self-identifies as “aboriginal, metis, Inuit, First Nations, status or non-status Indian under the Indian Act and with respect to all individuals whether on reserve or off reserve and whether or not they have a close connection to their Indigenous culture.” [ 2 ] In an effort to respect some private information, I have chosen to use ”TLC” in place of this accused’s actual name.

INTRODUCTION [ 3 ] TLC pled guilty to two assaults on her boyfriend and a breach of bail by having contact with him. Counsel jointly submitted that the court should impose a ‘suspended sentence’ for a period of 18 months. If the court imposes a suspended sentence, then this 23 year old Indigenous female accused will have a criminal record. [ 4 ] An alternative method of placing an accused on probation is a ‘conditional discharge’. If an accused receives a conditional discharge, then they do not have a criminal record.

In other words, they are accepting responsibility for their actions, being held accountable by having a sentence imposed, but there is formally no ‘conviction’ entered on their record. [ 5 ] TLC has previously received a discharge for assaulting her boyfriend. Implicit in the joint submission is that it would not be a reasonable or fit sentence to impose a second discharge. [ 6 ] Generally, a sentencing in these circumstances would normally take a few minutes. The facts, the joint submission and quick oral reasons are all that is required.

This sentencing has taken much longer. [ 7 ] However, in my view, a quick sentencing, without taking an additional step of considering a Gladue analysis fails to take into consideration the individualistic Gladue factors that might have played a role in bringing this particular person before the courts. [ 8 ] After hearing the submissions of counsel, and despite the strength of the joint submission, I was of the view more information was required. I am thankful to counsel for obtaining a Gladue report that is helpful in developing TLC’s background.

I am equally thankful to the expertise shown by Anisa White who is the author of the Gladue report. ISSUE [ 9 ] When balancing the principles of sentencing, law on joint submissions and conditional discharges, is a second conditional discharge or a suspended sentence for this Indigenous female accused the appropriate sentence? In other words, is it in the public interest to depart from the joint submission? CHARGES Information 39153-2-K [ 10 ] TLC, on or about the 2 nd day of January, 2019, at or near Port Alberni, in the Province of British Columbia, did commit assault of [Omitted for Publication], contrary to

Section 266 of the Criminal Code . (Note: she was also not supposed to be consuming alcohol). Information 38921 [ 11 ] TLC, on or about the 22 nd day of February 2019, at or near Port Alberni, in the Province of British Columbia, did commit assault of [Omitted for Publication], contrary to

Section 266 of the Criminal Code . (Note: she was also not to be consuming alcohol). Information 39153-3-KA [ 12 ] TLC, on or about the 25 th day of June 2019, at or near Port Alberni, in the Province of British Columbia, having been released pursuant to

Section 515 of the Criminal Code , did fail to comply with a condition of a recognizance by having contact with [Omitted for Publication], contrary to Section 145(3) of the Criminal Code . (Note she was also not supposed to be at his residence). FACTS [ 13 ] On January 2, 2019 the police were called to a domestic disturbance. Their investigation revealed that the accused punched her boyfriend 8 times. This assault took place in the boyfriend’s residence. The accused was intoxicated. [ 14 ] On February 22, 2019 the police attended another domestic disturbance. TLC had been arguing with her boyfriend over a hoodie.

In the course of the argument, there was a minor struggle and part of the hoodie caught the boyfriend’s neck and slightly choked him. [ 15 ] On June 25, 2019 the police were called again to a domestic disturbance. They located TLC inside her boyfriend’s residence. She was hiding under his bed. She was in breach of her bail conditions by having contact with him. [ 16 ] On the topic of having contact with the victim contrary to the terms of her bail, I note that there is an unresolved charge of having contact by sending emails. That matter is set for trial as TLC strongly denies them.

For the purposes of this sentencing, I do not consider the unproven allegations. THE JOINT SUBMISSION [ 17 ] Both counsel jointly submit that a suspended sentence with an 18-month period of probation is the appropriate sentence. The Crown concedes that when the joint submission was reached by counsel, that neither Crown nor defence had the benefit of much of the

information that is now contained in the Gladue report. Nevertheless, the Crown and defence, even now having the benefit of moreinformation, still stand by their joint submission. I acknowledge that joint submissions provide a degree of certainty to counsel and oursystem of justice. I discuss this below. However, I also acknowledge that in this case the accused was told pursuant to

section 606 of theCriminal Code that “the court is not bound by any agreement made between the accused and the prosecutor.” What meaning does thisphrase have if courts simply ‘rubber stamp’ joint proposals? THE LAW A. PURPOSE AND PRINCIPLES OF SENTENCING Purpose 718 The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. Fundamental Principle 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Other Sentencing Principles 718.2 A court that imposes a sentence shall also take into consideration the following principles. (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender, and without limiting the generality of the foregoing, there are a number of aggravating circumstances. (i) … (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (c) … (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

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. B. JOINT SUBMISSIONS The Honourable Provincial Court Judge Skilnick, in his usual articulate and succinct manner, captures what I instruct myself the law iswith respect to joint submissions. In R. v.

Corbett 2017 BCPC 314 at paragraphs 2 to 7 Judge Skilnick writes: [2] The Crown and Defence counsel have agreed on what the appropriate sentence for this offence should be and have joined together inrecommending what is known as a “joint submission” for a two month conditional sentence order. The court is not forced to accept ajoint submission and at one time, a sentencing judge could reject a joint submission if it was unfit and not in the public interest. Morerecently, in a case known as R. v.

Anthony-Cook 2016 SCC 43 , the Supreme Court of Canada clarified how a court shouldaddress a joint submission. [3] The Supreme Court said that, for the most part, the trial judge should approach the joint submission on an “as-is” basis. Some give-and-take is necessary to confront the volume of criminal charges, and unreasonable micromanaging by trial judges will only serve to bogdown the system and send more cases to trial, taking up more time, utilizing more resources and inconveniencing witnesses.

Whereexperienced counsel are involved, integrity and sound judgement should be presumed and the court is generally entitled to presume thatthere are good reasons for the consensus that has been reached. [4] There will be times however when the sentencing judge believes that the joint submission is unduly harsh or unduly lenient. Just asCrown and Defence counsel do, the sentencing judge plays an important role in the system of checks and balances and it is not his or herfunction to “rubber stamp” joint submissions if something doesn’t smell right.

It is at this point that the Supreme Court of Canada hassaid that the court must apply what is known as the “public interest test”. Under this test, judges “should not depart from a jointsubmission unless the proposed sentence would bring the administration of justice into disrepute, or is otherwise not in the publicinterest.

[5] One former Supreme Court of Canada Justice has said that “a reasonable joint submission cannot be said to ‘bring the administrationof justice into disrepute’. An unreasonable joint submission, on the other hand, is surely ‘contrary to the public interest’.” While this maysound like circular logic, that judge went on to explain that if “the sentence jointly proposed falls within the acceptable range and theplea is warranted by the facts admitted” then it is a reasonable joint submission.

The public interest test presumes fair and reasonablepublic sentiment that is not based purely on vengeful or inflamed sentiment, one that balances a desire for the rehabilitation of offenderswith the need to make amends to those who have been the victims of crime. [6] The Supreme Court said that the sentencing judge may inquire about the circumstances leading to the joint submission, and, inparticular, any benefits obtained by the Crown or concessions made by the accused.

This recognizes that where an accused has given uphis right to a trial in reliance that a joint submission will be respected, such a consideration must not be discarded lightly. Often a jointsubmission is reached because of weaknesses in the Crown case, difficulty with witnesses, or in order not to inconvenience thosewitnesses or force them to relive the offences. [7] If, after consideration of these factors, the sentencing judge still has concerns that the joint submission does not satisfy the publicinterest test, he or she should notify counsel of any concerns and invite further submissions on those concerns.

If the trial judge’sconcerns are not alleviated, the Supreme Court of Canada has said that the judge may allow the accused to withdraw his or her guiltyplea. The practical result of this change in the law is that now, rejection of a joint submission with most often send the matter back totrial. [18] R. v. Anthony-Cook, 2016 SCC 43 , [2016] 2 S.C.R. 204 is clear and instructs me to recognize the vitally importantrole that joint submissions play in the criminal justice system. I accept that there is a process that I should follow.

I should only departfrom a joint submission where the proposed sentence would be viewed by reasonable and informed persons as a breakdown in the properfunctioning of the justice system. As well, before I do, I should tell counsel my concerns and invite further submissions. [19] I believe another step is necessary. After notifying counsel of my concerns and inviting further submissions, in the case of anIndigenous offender, I must ask myself, do I have enough information to impose a fit sentence that properly considers the Indigenouscircumstances of that particular Indigenous accused?

I expect a ‘reasonable and informed person’, who is familiar with the social contextof Indigenous Peoples and the Canadian Justice System would expect that this question be considered. I will further address this underthe heading of ‘Gladue Factors’. C. DISCHARGES [20]

Section 730 of the Criminal Code provides the law on discharges: 730

(1) Where an accused …, pleads guilty to … an offence, other than for which a minimum punishment is prescribed by law or anoffence punishable by imprisonment for fourteen years or for life, the courts before which the accused appears may, if it considers it tobe in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that theaccused be discharged absolutely or on the conditions prescribed in a probation order … [21] R. v. Fallofield (1973), 13 C.C.C. (2d) is the guiding case on discharges. These conclusions are useful and set out in theMartin’s Criminal Code 2020 Judicial Edition Annotations at page 1556:

(1) The

section may be used in respect of any offence other than an offence for which a minimum punishment is prescribed by law or theoffence is punishable by imprisonment for 14 years or for life or by death.

(2) The

section contemplates the commission of an offence. There is nothing in the language that limits it to a technical or trivialviolation.

(3) Of the two conditions precedent to the exercise of the jurisdiction, the first is that the court must consider that it is in the bestinterests of the accused that he should be discharged either absolutely or upon condition. If it is not in the best interest of the accused,that of course, is the end of the matter. If it is decided that it is in the best interests of the accused, then that brings the next considerationinto operation. (4) the second condition precedent is that the court must consider that a grant of a discharge is not contrary to the public interest.

(5) Generally the first condition would presuppose that the accused is a person of good character, without previous conviction, that it isnot necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, and that the entry of aconviction against him may have significant adverse repercussions.

(6) In the context of the second condition the public interest in the deterrence of others, while it must be given due weight, does notpreclude the judicious use of the discharge provisions.

(7) The powers given by ... s. 730 should not be exercised as an alternative to probation or suspended sentence.

(8) S. 730 should not be applied routinely to any particular offence. This may result in an apparent lack of uniformity in the applicationof the discharge provisions. This lack will be more apparent than real and will stem from the differences in the circumstances of thecases. [22] I may further consider whether a previous discharge was imposed: R. v. Tan (1974) (BC CA), 22 C.C.C.(2d) 184 B.C.C.A.

Chief Justice McIntyre agreeing with the majority of the court confirmed that: In deciding whether to grant orwithhold a discharge … the sentencing Judge must consider both the interest of the accused and that of the public. In the secondconsideration the question of whether the accused person has had a previous discharge and the manner of his or her reaction to itcertainly both by logic and common sense is a relevant factor to be known and considered by the Judge.

D. GLADUE [23] The basic building block of law is in the headnote of R. v. Gladue 1 S.C.R. 1999: The considerations which should be taken into account by a judge sentencing an aboriginal offender have been summarized at para. 93 ofthe reasons for judgment. The following is a reflection of that

summary.

Part XXIII of the Criminal Code codifies the fundamental purpose and principles of sentencing and the factors that should beconsidered by a judge in striving to determine a sentence that is fit for the offender and the offence. In that Part, s. 718.2(

e) mandatorilyrequires sentencing judges to consider all available sanctions other than imprisonment and to pay particular attention to thecircumstances of aboriginal offenders. The provision is not simply a codification of existing jurisprudence. It is remedial in nature and isdesigned to ameliorate the serious problem of overrepresentation of aboriginal people in prisons, and to encourage sentencing judges tohave recourse to a restorative approach to sentencing. There is a judicial duty to give the provision’s remedial purpose real force.Section 718.2 (

e) must be read in the context of the rest of the factors referred to in that

section and in light of all of

Part XXIII. Indetermining a fit sentence, all principles and factors set out in that Part must be taken into consideration. Attention should be paid to thefact that

Part XXIII, through certain provisions, has placed a new emphasis upon decreasing the use of incarceration. Sentencing is an individual process and in each case the consideration must continue to be what is a fit sentence for this accused for thisoffence in this community. The effect of s. 718.2(e), however, is to alter the method of analysis which sentencing judges must use indetermining a fit sentence for aboriginal offenders.

Section 718.2(

e) directs judges to undertake the sentencing of such offendersindividually, but also differently, because the circumstances of aboriginal people are unique. In sentencing an aboriginal offender, thejudge must consider: (

a) the unique systemic or background factors which may have played a

part in bringing the particular aboriginaloffender before the courts; and (

b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances forthe offender because of his or her particular aboriginal heritage or connection. In order to undertake these considerations the sentencingjudge will require information pertaining to the accused. Judges may take judicial notice of the broad systemic and background factorsaffecting aboriginal people, and of the priority given in aboriginal cultures to a restorative approach to sentencing.

In the usual course ofevents, additional case-specific information will come from counsel and from a pre-sentence report which takes into account thesystemic or background factors and the appropriate sentencing procedures and sanctions, which in turn may come from representationsof the relevant aboriginal community. The offender may waive the gathering of that information.

The absence of alternative sentencingprograms specific to an aboriginal community does not eliminate the ability of a sentencing judge to impose a sanction that takes intoaccount principles of restorative justice and the needs of the parties involved. If there is no alternative to incarceration the length of the term must be carefully considered. The jail term for an aboriginal offender mayin some circumstances be less than the term imposed on a non-aboriginal offender for the same offence. However, s. 718.2(

e) is not to betaken as a means of automatically reducing the prison sentence of aboriginal offenders; nor should it be assumed that an offender isreceiving a more lenient sentence simply because incarceration is not imposed. It is also unreasonable to assume that aboriginal peoplesdo not believe in the importance of traditional sentencing goals such as deterrence, denunciation, and separation, where warranted. In thiscontext, generally, the more serious and violent the crime, the more likely it will be as a practical matter that the terms of imprisonmentwill be the same for similar offences and offenders, whether the offender is aboriginal or non-aboriginal.

Section 718.2(

e) applies to all aboriginal persons wherever they reside, whether on- or off-reserve, in a large city or a rural area. Indefining the relevant aboriginal community for the purpose of achieving an effective sentence, the term “community” must be definedbroadly so as to include any network of support and interaction that might be available, including one in an urban centre. At the sametime, the residence of the aboriginal offender in an urban centre that lacks any network of support does not relieve the sentencing judge ofthe obligation to try to find an alternative to imprisonment. E.

CROWN POSITION – Aggravating Factors [24] The Crown indicated that this Indigenous accused had a conditional discharge for assaulting her boyfriend. Further, they submitthat TLC was bound by a probation condition that forbid her from contacting the boyfriend when he was assaulted this time. She wasalso not be found within the residence of her boyfriend. [25] Thus, she is in breach of her probation and bail. I accept that these are aggravating factors. [26] I also accept that while she does not have a prior criminal conviction, she has had a conditional discharge for assaulting thesame victim.

Her prior assaultive behaviour on this same victim is highly aggravating. [27] I also accept that even though the accused and the complainant were not ‘spouses’, that they were dating partners and thatdomestic violence is a profound problem. The effect of domestic violence on partners, whether married or not, cannot be overstated. [28] The Crown argues that the significant emphasis must be put on denunciation in spousal assault cases and provides R. v.

T.E.C.2015 BCCA 43 paragraph 13 as authority that: The jurisprudence of this country has long recognized the uniquely emotional and malevolent nature of domestic assaults and theinherent dangers they present, not only to the victims but to public interests as well. This Court recently affirmed these views in R. v. Gill,2014 BCCA 88 at para.34: [34] I am unable to accept Mr. Gill’s submission that the sentencing judge overemphasised denunciation. This Court has consistentlystated that crimes of violence against women in domestic relationships require denunciatory sentences. In R. v. Stanley, [1986] B.C.J.

No.695 (C.A.) at para. 8, Mr. Justice Lambert said this: I wish to say particularly in this case that society has a deep interest in this kind of conduct. It is not a private matter between the partiesto the relationship nor a matter that goes away if there is forgiveness within the relationship. This kind of conduct endangers and imperilssociety. In addition the guardians of the social interest, the people involved in social work and the police who are called out and into

these situations, must have the protection of the law and the understanding that these offences will not be ignored by society or that forgiveness by one spouse will not put an end to the offence. [ 29 ] I agree that the effects of domestic abuse on a spouse endangers and imperils society. Respectfully, I note that all cases provided by the Crown are male offenders and female victims. I agree that society must condemn violence against all people, especially domestic violence on spouses.

However, I am also of the view that we must also recognize that the circumstances of Indigenous women in Canada are individualistically and systemically unique and distinguishable from the circumstances of men. F. DEFENCE SUBMISSIONS [ 30 ] The accused is a 23 year old [Omitted for Publication] woman. She is originally from the [Omitted for Publication]. [ 31 ] Defence submits she has some education. At the beginning of this court matter she had enrolled in an Indigenous Tourism course. During the course of these proceedings, she has completed this course.

Letters of reference and certificates confirm she completed a College “Cruise Ship Service Training Course”. One instructor writes “It is very apparent that [TLC] has a true passion and skill regarding tourism and related content design and development. It is her goal to move forward with her career within Indigenous Tourism. I believe that [TLC] will be a fantastic asset to any organization she is a part of.” [ 32 ] It is further submitted that she has consistent employment and hopes to become the manager of a local coffee shop.

She sits on a board of directors for a non-profit organization and volunteers her time to many community organizations. [ 33 ] There are letters of support. She is described as being a person who volunteers and is a member of a young professionals group. Her counsellor attended court with her.

A letter from her counselling services shows that she has begun counselling for “some unresolved trauma.” An updated letter of support from her therapist confirms that she has been receiving mental health treatment for nearly a year by attending counselling sessions every two weeks. [ 34 ] In short, the accused self-identifies as a young Indigenous woman and has the whole world ahead of her. G. APPLYING GLADUE i.

The Practice [ 35 ] In a case like this, more often than not when a joint submission is made for a suspended sentence there are many factors that weigh in favour of completing the sentencing, rather than delaying it. [ 36 ] There is a sense of closure to the accused. The accused does not go to jail, thus, ameliorating the over-incarceration rate of Indigenous people in our jails. The accused and society benefit from an order that increases the chance of rehabilitation that in turn reduces recidivism.

In other words, less Indigenous people go to jail and they get the help that they need. [ 37 ] There is a sense of closure for the victim. The victim can benefit from protective conditions, such as ‘no contact’ conditions. [ 38 ] There is also a sense of closure for the sentencing Judge and he or she can move onto another case. (Dockets are busy and our courts have a limited amount of time). [ 39 ] In short, completing the sentencing process would have been the easiest thing to do.

However, it was my view that I did not have enough information on this particular accused. [ 40 ] After hearing submissions, I posed these questions to myself: What is in the public’s best interest? What are the circumstances of this particular Indigenous offender? What are the background factors that brought this particular Indigenous offender before the courts? [ 41 ] Sometimes a judge may need more information about an Indigenous accused. Counsel, the accused, the Native Court Worker or other community members, such as elders can provide the information.

However, in practice legal aid retainers are limited, Native Court Workers are overworked, and community input is often lacking. ii. A Pre-sentencing Report with a Gladue Component [ 42 ] This report is written by a probation officer. A small component (often a page or two) is dedicated to describing the Indigenous community that the accused belongs to. When possible the writer will include Indigenous community options that may be available to the accused. In many cases the Indigenous offender lives far from his or her home community and is not able to access community resources.

However, often the probation officer will be able to list local resources as well. [ 43 ] A study completed by British Columbia’s Legal Services Society – or ‘legal aid” provider, compared the value of a pre- sentencing report versus a Gladue report. One conclusion of the study was that “clients were more comfortable talking with Gladue report writers and told the writer details they would not have told anyone else, especially their probation officers.” This is an obvious limitation of pre-sentencing reports.

Another limitation is that they are prepared by probation officers who often focus on risk assessment versus an analysis that contextualizes Gladue factors. To be clear, a pre-sentencing report provides very valuable information to a sentencing judge. The probation officer gets to meet the client face to face, ask them questions and make an assessment as to whether the client is receptive to mainstream options, such as counselling. [ 44 ] In my experience, a pre-sentencing report takes at least two months to prepare, and really only provides a brief snapshot of the client.

Nevertheless, I do get a better understanding of who the individual is, what their criminal antecedents are, and what mainstream sentencing options exist. However, I rarely gain a deep understanding of ‘why is this particular Indigenous person before the court for this crime – and what cultural options exist in this community that could assist this individual.’ In any event, no pre-sentencing report

was ordered in this case as it was my view a Gladue report would provide appropriate information. iii. The Gladue Report [ 45 ] Each province is different, but in British Columbia up until the last couple of years, Gladue reports were rare. In my view, they are still too rare. There were judicial debates as to whether courts could order these reports. If they did, there were issues of who would fund them. These debates are now concluded.

I understand that there is a roster of trained writers and funding for up to 300 of these reports. [ 46 ] In British Columbia, if an individual wants a Gladue report, they need to speak to their counsel. If they do not have counsel, or if they cannot afford to fund one privately, they can contact the Legal Services Society. The ‘theory’ I am to be guided by is that there should be no barrier to a Gladue report for an individual who self-identifies as Indigenous. [ 47 ] Obvious to most counsel and judges is that a Gladue report is NOT a pre-sentencing report as described above.

It is written by an independent Gladue writer who is trained to write this particular type of report. The study I referred to earlier concluded that “Clients noted the therapeutic and personal benefits of telling their story in a non-judgmental environment where they felt they were heard and valued.” [ 48 ] Do Gladue reports really make a difference? I acknowledge the wisdom of Canada’s higher courts that guide me to the judicial reality that chances are, the more serious the crime, the less likely the Gladue factors will lower the outcome. As some courts have exclaimed, ‘there is no automatic discount’.

I agree – however – I am mindful that the purpose of the Gladue journey is not to create a different outcome, but rather, to ensure that Gladue factors are considered in the sentencing process. [ 49 ] While there is ‘no automatic discount’ the study by the Legal Services Society concluded that “evidence suggest Gladue reports had an impact in many cases: some received less time in jail than they would have had there not been a Gladue report.

Reports helped judges develop restorative justice based sentences that included sentencing circles, culturally appropriate treatment options and community based options.” [ 50 ] The report also concluded that with respect to impact on clients, fewer Gladue clients received a jail sentence than their non- Gladue counterparts.

The median sentence in days for Gladue clients was 18 days, substantially lower than the non- Gladue sample which was 45 days. … Another comparison of sentence outcomes was completed with 38 Gladue clients, … 76% of clients who committed the same offence received a shorter sentence, while 18% received a sentence of the same duration …”. As I understand the study, 6% was unaffected by a report due to minimum punishments, public safety issues and re-offending behaviour. [ 51 ] Is a Gladue report essential? No. But welcoming the Gladue information is. I pose this scenario.

Imagine an Indigenous person steals a chocolate bar and they are about to be sentenced in court and get probation. Would a Gladue report be helpful? There are strong arguments favouring the answer that ‘no’ it would not be. It costs money and takes time and chances are it will not affect the immediate outcome.

But if that person breaches their probation, gets another charge and even ends up in jail and their cell mate says, “Did you tell the judge about your Gladue factors?” One more incarcerated Indigenous person will say “what is Gladue ?” In my view, a Gladue report is always useful, whether it costs money, takes time or will have little to no effect on the outcome. Approaching the sentencing process in any other way is how we ended up with a grossly disproportionate number of Indigenous prisoners.

Equally, it is important to respect an Indigenous person’s right to waive the considerations of Gladue factors. [ 52 ] There are many consequences to people charged with crimes. Extreme deprivation of liberty takes the form of jail. Probation can restrict a person’s liberty for months or years. A criminal record can affect a person’s ability to get certain jobs for the rest of their life. H. TLC’S GLADUE REPORT [ 53 ] TLC’s Gladue report is a significant piece of writing. This report is twenty pages in total. A minimum of six people were contacted, sometimes on more than one occasion.

There are 23 listed documents and resources that have been reviewed. However, hundreds, if not thousands, of pages of materials were actually reviewed by Ms. White. While there is no index, these areas were thoroughly covered: Purpose of Gladue Report,

Summary of Gladue Factors, Gladue factors – including Indigenous background, community and connection to community; family history, current living arrangements, education, career goals, finances, overview of mental health, information on addictions, supports, and personal attributes. These areas are considered within the broader scope of Gladue considerations such as Indian residential schools and their intergenerational effects.

The report provides information of this offender’s attitude and understanding of the offences, and lists restorative justice options. [ 54 ] It is open for me to include the whole report in these reasons. The benefit to the reader would be that you could actually see what an actual Gladue report looks like. The cost, however, would be to share highly confidential and sensitive information that is best left private. As a result, I will only provide some of its contents. [ 55 ] TLC is a First Nations woman. She is [Omitted for Publication]. Like many others, she was not directly raised with her culture.

She stated her impressions about Indigenous peoples were based on her experiences of people in crisis and poverty. She lived in a home where there was domestic violence, poverty, instability and lack of supervision. [ 56 ] Her mother has been abused when she attended residential school from age 6 to 13. TLC has also been abused by others from the approximate age of 6 to 13. Out of respect for her privacy, I will leave the details out of these reasons. [ 57 ] With respect to alcohol, TLC’s mother had to work through her own issues around alcohol and drugs. She has now been sober for many years.

With respect to TLC, she told the report writer that “I have never seen my daughter intoxicated or being drunk.” TLC confirms that she “did not use alcohol regularly until she entered a relationship with her first boyfriend at age 21.” [ 58 ] TLC reported that “she avoided using alcohol, however, fell into a pattern of using alcohol in her relationship with men.” TLC

describes the victim of the assaults as an angry and abusive person. At page 7 of the Gladue report she tells the author: Every time we would drink together, there would be violence. He would initiate the violence. He would comment on my body or how I dress. I would get scratches and bruises and be thrown against the wall. I remember the first time this happened, I ended up defending myself but because he was bigger than me he ended up getting the scratch marks, but I ended up being the one being beaten. I was the one taking the whole blame even though I wasn’t the only one involved.

I take responsibility for my part for how I reacted but I was not 100% at fault. In terms of the patterns in her relationship, she stated: We would somehow fix the relationship and I would lift the no contact order, and we would be good for a day, not even. He would force me back into old cycles to drink, but I wasn’t allowed to drink then I would get in trouble. I stopped going back to him. TLC reported she experienced controlling behaviour and began to grow depressed and withdrawn.

She indicated the main reason she is not able to have continued employment is because “I need to attend counselling, meet with my lawyer and attend court, do interviews for the Gladue report, deal with my health, and do my tourism training.” [ 59 ] The report details her education and counselling. TLC is two subjects away from completing grade 12. She has just completed the Indigenous Tourism Ambassadors program through the Indigenous Community for Leadership and Development. In the last few months she has become certified to initiate a board and has become a board member.

She already is a contributing member of Young Professional organizations. She is a very active volunteer in her community. [ 60 ] As for counselling, three weeks before she came to court she began trauma counselling and has been seeing a therapist regularly. She intends on continuing the counselling.

I note that she voluntarily started to attend counselling even though there was no court order forcing her to do it. [ 61 ] TLC told the Gladue Report author “TLC wishes to overcome her use of alcohol to address mental health concerns and has expressed a desire to address the underlying aspects of her offence cycle, in order to make positive changes in her life.” [ 62 ] The report has a

section that I want to highlight. At page 11: Indigenous Women, Gladue Factors and the Criminal Justice System According to Elspeth Kaiser-Derrick: As the histories of victimization generally overlap with elements of Gladue factors, often concepts related to the victimization- criminalization continuum lens and Gladue factors will be intertwined.

However, while both the continuum and the Gladue analysis often share information about Indigenous women’s lives in the form they are presented to the courts, the analytical focus of each differs: the victimization-criminalization continuum most directly focuses on gendered vulnerabilities and responses to victimization, where the Gladue analysis most directly focuses on reverberations of colonization (and how that should impact sentencing).

Some judges also articulate women’s pathways to criminalization by recognizing the constrained choices in Indigenous women’s lives where they contend with victimization … Victimization is often then reproduced as violence. (Kaiser-Derrick, Elspeth (2019). Implicating the System: Judicial Discourses in the Sentencing of Indigenous Women (p.87-91)). [ 63 ] Also contained in the Gladue Report is that “TLC reported she had many unresolved traumas and social problems prior to her involvement with men. She reported growing up with violence in her home as normal.

She related many examples where she witnessed domestic violence and experienced abuse, all in the context of her family. She conveyed that she thinks her early experiences have not been fully resolved and has been taking active steps since summer of 2018, through both trauma counselling and counselling for descendants of IRS survivors. She reported she never felt she could get full-time employment and make friends in the wider community once she moved … due to the failure of her relationship with her ex-boyfriend and need to manage her personal life.

She has completed training in the area of tourism and hopes to pursue employment in the tourism industry.” The writer of the report also writes: “According to Professor Parkes” Indigenous women now account for an astonishing 38 per cent of women in federal prisons, despite comprising less than four per cent of the general population. These realities are evidence of the extent to which we overuse criminal law to address social problems, at great human and fiscal cost. We persist in pursuing punishment over more productive ways of dealing with harm and anti-social behaviour.

We ignore the social determinants of crime. And we have become complacent about the deep inequalities throughout the criminal justice system. These conditions cry out for fundamental reform of our criminal law. (Parkes, D. (2019), "Punishment and Its Limits", The Supreme Court Law Review: Osgoode's Annual Constitutional Cases, Vol. 88,

Article 16). TLC stated: Even though I keep looking forward, I have to look backwards, I pull myself back. I go into the wrong lane on the highway. When [HE] started to aggravate me or try to bring me down, he dragged me down. He is an anchor I did not need to put on my boat, but he knows how to use it. He knows how to play mind games and push my buttons, when to leave and when it hurts the most. TLC’S counsellor stated: TLC is committed to ongoing therapy for the purpose of addressing symptoms of depression and unresolved trauma in her life. Upon reviewing TLC’s’ treatment plan level of stability and self-care knowledge, I would like to recommend this client continue to receive

support for her ongoing Mental Health needs. Client has maintained her commitment to make personal changes that will improve her current quality of life. According to the Battered Women Support Services of BC: When women experienced domestic violence and are arrested, there may be social, economic, legal and emotional consequences for women, including but not limited to exclusion from transition houses and victim services programs (community and police based), being unable to develop a safety plan to prevent future harassment and violence, the inability to find employment with a criminal conviction.

TLC stated that while she has been charged with a number of offences, currently she does not have a safety plan.

Report on the Missing and Murdered Indigenous Women and Girls 2019 (The Report) [ 64 ] The Inquiry had a broad mandate and made it clear that violence experienced by Indigenous females amounts to a genocide. [ 65 ] The Introduction of the inquiry indicates that: The National Inquiry has come to the conclusion that violence experienced by Indigenous women, girls, and 2SLGBTQQIA people amounts to genocide based on the results of the Truth-Gathering Process, which includes the National Inquiry’s entire body of work.

Beginning its work in September 2016, the federal government and the 13 provincial and territorial governments mandated the National Inquiry into Missing and Murdered Indigenous Women and Girls to report on: i. Systemic causes of all forms of violence – including sexual violence – against Indigenous women and girls in Canada, including underlying social, economic, cultural, institutional and historical causes contributing to the ongoing violence and particular vulnerabilities of Indigenous women and girls in Canada, and ii.

Institutional policies and practices implemented in response to violence experienced by Indigenous women and girls in Canada, including the identification and examination of practices that have been effective in reducing violence and increasing safety. [ 66 ] At page 38 of the Report, the Inquiry found that: Outside of these forms of intergenerational experiences of colonial violence and the mistrust that comes with them, the social and economic marginalization of Indigenous people also puts up significant barriers for First Nations, Métis, and Inuit women that make accessing protections difficult.

This includes being criminalized due to poverty. [ 67 ] The Report makes a “Call to Justice” at page 53 of the Executive

Summary: The steps to end and redress this genocide must be no less monumental than the combination of systems and actions that has worked to maintain colonial violence for generations.

A permanent commitment to ending the genocide requires addressing the pathways explored within this report, namely: • historical, multigenerational, and intergenerational trauma; • social and economic marginalization; • maintaining the status quo and institutional lack of will ; [emphasis mine] Incorporating knowledge of trauma into all policies, procedures, and practices of solutions and services is crucial to the implementation of the Calls for Justice. [ 68 ] The points raised in this decision are not new topics of debate. Most recently, Justice Burstein in R. v.

Luke , 2019 ONCJ 514 at paragraph 1 writes: More than 20 years ago in R. v. Gladue , recognizing that Indigenous people have long suffered disproportionate consequences at the hands of the criminal justice system, the Supreme Court of Canada issued a clarion call for “responses to alleviate it”. Just over a decade later, in R. v. Ipeelee , the Supreme Court lamented the fact that little had been accomplished to reverse the steady growth of Aboriginal overrepresentation in the criminal justice system since Gladue. Most recently, in the face of continued systemic apathy, the Court in R. v.

Barton reminded all justice system participants of the need to take meaningful steps towards remedying the discriminatory impact of colonialism, particularly colonialism’s adverse impact on Indigenous women. Indigenous persons have suffered a long history of colonialism, the effects of which continue to be felt.

There is no denying that Indigenous people – and in particular Indigenous women, girls, and sex workers – have endured serious injustices, including high rates of sexual violence against women … Furthermore, this Court has acknowledged on several occasions the detrimental effects of widespread racism against Indigenous people within our criminal justice system … With this in mind, in my view, our criminal justice system and all participants within it should take reasonable steps to address systemic biases, prejudices, and stereotypes against Indigenous persons – and in particular Indigenous women … – head-on.

Continuing at paragraph 24: [24] Becoming saddled with a criminal record is a significant consequence of being convicted of a criminal offence. Some professions will not admit persons who have criminal records. Many employers will refuse to hire persons with criminal records. Landlords may refuse to rent accommodations to persons with criminal record. Some countries restrict entry on the basis of a criminal record. As MacNaughton J. observed in Chu v. Canada … Simply put, there is real social stigma associated with having a criminal record.

CONCLUSIONS [ 69 ] Is giving this particular accused a suspended sentence in the public interest? Is it a ‘fit’ sentence? What sentence should I impose? [ 70 ] Once more, I acknowledge that there are many aggravating factors to consider. I have listed them above. I also acknowledge that much of the information referred to in these reasons and the Gladue report, especially The MMIWG Report, has to do with violence perpetrated on Indigenous women, and in this case, the offender is actually an Indigenous female and the victim is a male.

However, TLC has also been victimized throughout her life. [ 71 ] I also recognize that Gladue factors are merely one thing to consider and that I must not overemphasize these factors. Deterrence, denunciation and rehabilitation all play a role when sentencing any offender charged with spousal assault. Of course, the importance of joint submissions is also an extremely important consideration. Respectfully, this sentencing is not just about ‘joint submissions’ or a ‘case’ or a ‘file’.

It is about what is the appropriate ‘fit’ sentence to impose on this particular human being. [ 72 ] It is my experience, however, that courts are too quick to give accused people criminal records and we should stop and think before we do it. When the accused is an Indigenous female, we need to stop and think twice before we potentially effect the rest of her life. On the surface, this approach may look like that would be giving Indigenous women special treatment in the sentencing process. I am fine with that – and I would say it is about time.

On a deeper level, it is not really a preferred treatment, but rather a recognition of the Gladue factors that are specific to being an Indigenous woman in this country. [ 73 ] What is behind this this particular offenders offending behaviour? She has suffered significant trauma and has been the victim of violence throughout most of her life. These unresolved traumas have led her to abuse alcohol.

She is now dealing with her trauma and has stopped drinking alcohol. [ 74 ] When I consider the broader public interest, I believe society is served by this accused being placed on probation with rehabilitative conditions.

Assisting this offender by providing counselling for trauma and addictions will greatly increase the chances that she will not come into further conflict with the law. [ 75 ] Protective conditions restricting her ability to have contact with the victim are appropriate. [ 76 ] Denunciation and deterrence are adequately dealt with through the process of arrest, attendance at court, the prolonged sentencing process and the fact that she will be on probation for a period of time. [ 77 ] It is my conclusion that this young Indigenous woman has truly turned her life around.

Giving her a criminal record will not serve the public interest. [ 78 ] A criminal record could have implications on her: employment prospects, her ability to be a board director, her ability to be a director of a company and even her ability to continue as a volunteer in certain agencies. It would have the potential to negatively affect her ability to become a member of different professions, such as a nurse, doctor, lawyer or teacher.

I would expect a criminal record for violence would also limit her ability to work on cruise ships or travel internationally. [ 79 ] Since she has already commenced a healing plan by starting and continuing with trauma counselling for more than 12 months, I do not see the need to unnecessarily restrict her liberty concerning counselling for a further 18 months. Equally I believe protective conditions for a longer time period makes sense. I impose a conditional discharge with 18 months of probation. The conditions are as follows: You must comply with conditions “E” and “F” for the full period of your probation.

You must comply with the remaining conditions of a probation order for a term of 12 months. The conditions of the order are: A. You must keep the peace and be of good behaviour; B. You must appear before the court when required to do so by the court; C. You must report in person to a probation officer within two business days and after that, you must report as directed by the probation officer. This reporting condition is included to facilitate the completion of any counselling or community service work that you may be directed to complete.

Upon completion of counselling and community work service, your probation officer may release you of your reporting obligation, at their sole discretion; D. When first reporting to the probation officer, you must inform him or her of your contact information, your residential address and your phone number. You must not change your residence or your phone number without written permission from you probation officer; E.

You must have no contact or communication, directly or indirectly, with [Omitted for Publication], except that subject to the consent of [Omitted for Publication] you may participate in a restorative justice program at the discretion of your probation officer; F. You must not go to or be within 50 meters of any residence, school or workplace of [Omitted for Publication]; G. You must attend, participate in and successfully complete any intake, assessment, counselling or program as directed by the probation officer.

After advising your probation officer of the counselling and programming you have completed, the probation officer may exercise his or her discretion and direct that you do not need to take any additional counselling; H. You must complete 40 hours of community work service under the direction of your probation officer. Any counselling or volunteer work with community organizations may be considered part of your community work service at the discretion of your

probation officer. ____________________________ Judge A. Wolf Provincial Court of British Columbia