Background
A 74-year-old Aboriginal offender who had entered guilty plea to three counts of sexual interference applied for an order that a full Gladue report be prepared for his sentencing “at public expense”. The Court had previously refused to order a Gladue report on the basis that the application was premature until a psychiatric report and pre-sentence report with a Gladue component had been prepared, but the defendant was granted liberty to re-apply for a full report.
Following the Court’s receipt of both a psychiatric report and a pre-sentence report, the application for a full Gladue report to be commissioned was renewed with counsel for the defendant arguing that the other reports were inadequate in terms of addressing Gladue factors. The Court again ruled that the application was premature, holding that it would be appropriate to proceed with the sentencing hearing, have full submissions from counsel and hear full argument on the pre-sentencing report and psychiatric report before determining whether additional information will be required.
Sentencing proceeded and the Court heard evidence from individuals involved in local correctional services as to the available counselling options for offenders as well as available restorative justice options. The defendant consented to participation in a restorative justice process with his First Nation and a referral was made for such a non-binding process to occur.
A panel of members from the defendant’s First Nation heard victim impact statements, the defendant’s history of physical and sexual abuse while in the residential school system and expressions of the defendant’s remorse. At the conclusion of this process, the panel opted to remove the defendant’s traditional name and status as a chief within the nation through ceremony. It also recommended that in addition to any sentence imposed by the Court, the defendant should be ordered to return any regalia or possessions he had pertaining to the First Nation and fund a cleansing and healing feast that he himself could not attend. It also sought permission for a media release describing how the offender’s conduct had been addressed so as to encourage other victims to come forward and other First Nations to deal with their members accordingly.
Counsel for the defendant took exception to the panel’s report, stating that the intention had been to have the report provide the information that would be anticipated from a Gladue report. Instead, defence counsel suggested that the outcome was to shame the defendant and argued that this was not restorative justice since it failed to take into account the defendant’s residential school experiences.
Counsel for the defendant once more renewed the application for a full Gladue report to be commissioned and argued that to require the defendant to fund such a report at his own expense would re-victimize him.
Court’s decision
The Court found that the pre-sentence report prepared by a probation officer had been based on interviews with the defendant, his bail supervisors, his wife, a representative from the relevant counselling centre and community services society, as well as one of his victims and that victim’s grandmother. It also contained a “Gladue component”, outlining the defendant’s personal history, residential school experience and the local resources available to him.
The Court also found that the psychiatric report provided a detailed summary of the defendant’s background with a particular focus on his experiences in residential school.
The Court went on to review jurisprudence from Ontario, Alberta and British Columbia in relation to the utility of Gladuereports.
The Court interpreted the British Columbia Court of Appeal’s 2012 decision in R. v. Lawson as holding that “a formal Gladue report is not necessary in all instances”. The Court held that the key issue would be whether the Court has sufficient information before it concerning the factors that would generally be described in a Gladue report, including Aboriginal aspects of the defendant’s life, the general nature of Aboriginal life, negative impacts of colonialism, intergenerational trauma, sentencing or rehabilitative resources available to the offender and systemic factors that affect Aboriginal offenders. It also cited Lawson for the proposition that “[i]t is the sufficiency of this information, not the identity of its source or the label put on the report which is significant”.
The Court noted that the Alberta Court of Appeal had come to a different conclusion in R. v. Mattson, where it held that the tendering of a Gladue report is mandatory for all future sentencing of Aboriginal defendants based on its interpretation of the Supreme Court of Canada’s 2012 decision in R. v. Ipeelee. However, the Court took a different view from that of the Alberta Court of Appeal and concluded that “Ipeelee’s mandate relates to information, not mechanism”. The Court held that, contrary to the ruling in Mattson, in British Columbia “substance triumphs over form”.
The Court held that in British Columbia a Gladue report is not mandatory for the sentencing of an Aboriginal offender. Rather, “what is required by Ipeelee is that there be case-specific, timely, and comprehensive information before the Court, tailored to the specific circumstances of Aboriginal offenders and pertaining to relevant Gladue factors”. Absent sufficient information it is then “incumbent on the court and counsel to rectify this”.
In the present application, the Court concluded that it had before it comprehensive materials addressing the defendant’s connection to his Aboriginal community, background and systemic factors concerning Aboriginal peoples generally and the defendant specifically, restorative justice and other programming available to him and his willingness to participate in such programming, as well as the effects of the defendant’s own victimization in the residential school system.