R v McCook

The Provincial Court of British Columbia released a decision on January 22, 2015 in <a href="http://www.canlii.org/en/bc/bcpc/doc/2015/2015bcpc1/2015bcpc1.html" title="R. v. McCook"><i>R. v. McCook</i></a>, sentencing the defendant to a conditional sentence order of two years less a day followed by a probation order of three years for the theft of $724,570.40 from Kwadacha Nation.

The defendant had pleaded guilty to a charge of theft of a value in excess of five thousand dollars. She was a member of Kwadacha Nation and had been an employee of the First Nation for approximately 8 years. While employed as the First Nation's executive director, she stole money by diverting payments from the federal government for a variety of programs and services that she applied for but were never offered. The defendant remitted invoices to the federal government for programs and services that never took place, and had the cheques made out to relatives and acquaintances. The defendant had these individuals cash the cheques for her, convincing them that the cheques were made out to them as a requirement for depositing the monies into trust for her, and that they were cheques for the payment of personal compensation to her from the government. The thefts took place over the period of approximately 16 months. The Crown argued that the defendant ought to serve a period of incarceration of 3.5 to 4 years in a federal penitentiary, whereas defence counsel argued for a conditional sentence of two years less a day.

The Court reviewed the defendant’s background, noting that she had grown up in a household where she was regularly exposed to alcohol abuse and interpersonal violence, she had been sexually abused as a child by an adolescent neighbour, she had been physically disciplined by nuns at a Catholic day school for speaking her language and expressing traditional Aboriginal beliefs, and she had tried to commit suicide at age 15 due to being socially isolated from the Iskut community she grew up in because her father was Sekani. The Court also reviewed more positive aspects of her background, including her education, employment history and family connections.

In terms of the defendant’s use of the stolen funds, the Court noted that the defendant was using them to fuel a gambling addiction and had apparently rationalized her behaviour as simply “borrowing” the money until she could pay Kwadacha back after a “big win”. The defendant claimed that she turned to gambling to cope with everything that was going on in her life at the time of the thefts, including the death of her mother and an older sibling, and an affair her husband was engaged in.

The Court also took note of a victim impact statement from the chief and council of Kwadacha Nation in which they stated that although they did not condone the defendant’s behaviour, it had a limited financial impact on the community and they were able to take steps to ensure no similar thefts would occur in the future. They stated that any ill will felt by the majority of the community towards the defendant had since been forgiven “for the most part”, and that the defendant had already lived through a number of years of ridicule and judgment from the impacted community members with whom she lived as neighbours. They stated their view that a severe punishment at this time might do more harm than good from a community standpoint, and noted that the defendant’s behaviour was the result of an addiction rather than her being a “bad person”. Chief and council suggested that she make up for what she took from the community by providing home care and possibly by acting as a spokesperson for community members on issues of gambling addiction.

After discussing the many cases put before it by counsel, the Court took into consideration that the position of Kwadacha Nation was one of reconciliation, restoration and forgiveness towards the defendant, but also accepted the Crown’s position that Canadian taxpayers had also suffered a loss as a result of the defendant’s thefts. Still, the Court held that based on the defendant’s personal circumstances, her lack of previous criminal behaviour, and the relevant Gladueconsiderations raised in her case, it would do little to protect society to incarcerate a “First Nations grandmother in her 50s” and would only serve to add to the over-representation of Aboriginal people in the Canadian prison system without any genuine benefit to the community. The conditional and probationary sentences imposed by the Court included bans from drugs, alcohol and gambling, curfews, a period of house arrest, a mandated apology to the community, 100 hours of community service work for the community, and various orders for restitution.

Concerns with funding for Gladue reports in British Columbia

The Court also made several pointed comments regarding the manner in which Gladue reports are currently funded in BC. The Court noted that funding for the preparation of Gladue reports is administered through the BC Law Foundation’s Legal Services Society (LSS), which took the position in this case that judges could not “order” Gladue reports to be commissioned and that whether or not a report would be funded was a matter solely within the LSS’s discretion. The Court further noted that among the factors considered by the LSS in determining whether to fund a Gladue report was a restriction on the approval of clients outside a certain 200km radius in order to avoid excessive travel expenses for in-person interviews.

While the Court recognized that the jurisprudence was unclear as to whether or not the lack of a Gladue report was an appealable error, it expressed the view that the current system of having LSS act as a “gatekeeper” for the reports was unacceptable. The Court said that this “clearly interferes with the Court’s [sic] and individual Judge’s independence in the sentencing process by subjecting those persons who are the most adversely affected by the systemic negative impact of the criminal justice system (Aboriginal people) to further potential negative impacts through the actions of a bureaucracy that is fiscally constrained in how it decides whether a report of the importance of a Gladue report is prepared.” The Court stated that it was “imperative” that the Province gives earnest consideration to re-examining the current process and providing “appropriate and adequate funding for the Court to properly carry out its duty in the sentencing of Aboriginal offenders as mandated by the Supreme Court of Canada” rather than making the Court and offenders go “cap in hand” to obtain funding for Gladue reports.