Ad hoc production of aboriginal sentencing reports ‘unsustainable’

In late 2010 when Chantal Genier started writing reports for Yukon courts, she was essentially doing it as a side project because it was something she believed in.

In late 2010 when Chantal Genier started writing reports for Yukon courts, she was essentially doing it as a side project because it was something she believed in.

On a first-come, first-serve basis she would write detailed explanations of someone’s aboriginal ancestry, the impact that had on their life and provide judges with information for helping with rehabilitation.

She didn’t have any formal training, and she didn’t receive any extra money.

Genier couldn’t neglect her job, so the former manager of the Council of Yukon First Nations’ justice program fit them in whenever she could.

“It was steady, I was always working on at least one,” she said.

Around the same time, Mark Stevens, the former justice coordinator at the Carcross/Tagish First Nation, stepped into a similar role.

As a former journalist, he was asked to put together a report on an offender with a particularly traumatic background.

Without any experience, the pair were being asked to create Gladue reports, critical documents for Canadian judges sentencing aboriginal offenders.

They’ve put together the majority of the formal Gladue reports on the territory.

But a new study suggests it’s time for that to stop.

A committee made up of prosecutors, the Yukon Department of Justice, legal aid, the CYFN, the Carcross/Tagish First Nation and the Kwanlin Dun First Nation recommends Yukon follow in the footsteps of seven other jurisdictions in Canada and have specially trained and funded writers dedicated to writing Gladue reports.

“All of the reports were provided on an ad hoc basis by report writers who have received little or no formal training and who took on the responsibility with no additional funding or support to supplement their existing positions,” the report says.

“This approach proved to be unsustainable as the demand for reports increased.”

Gladue considerations have been the law of the land since a landmark Supreme Court of Canada case in 1999.

Judges are required to consider a person’s aboriginal ancestry, the history of colonialism and the disproportionately high number of aboriginal people incarcerated, when they are crafting a sentence.

About 50 Gladue reports have been completed in the Yukon since the end of 2010.

Like other reports for court, Genier said she often asked for eight to 10 weeks to get a Gladue report done. Stevens estimates it takes him about 40 hours, especially if he has to travel out to the communities to do interviews.

In many cases, instead of an official report, when a Yukon aboriginal offender appears before a judge their lawyer will give the court some basic background information.

Probation officers will also sometimes include Gladue factors in pre-sentencing reports. But that’s not the same as having a Gladue report done, Genier said.

“Defence and probation officers do a wonderful job. They’re tasked with providing background and historical and current information…. However, I think there is more detail that perhaps and aboriginal organization or writer could provide.”

That could mean talking in more detail about historic events or informing the judges about lesser-known programs available through the Yukon’s various First Nations, she said.

Aboriginal Legal Services in Toronto has 13 writers in 11 communities who write Gladue Reports. Director Jonathan Rudin said staff are trained differently than lawyers.

Interviews with offenders, family and community members lead to “not just an awareness of the individual but also a better opportunity to come up with sentencing recommendations that are really able to address the root causes of the person’s behavior,” he said.

Genier said her goal has never been to simply keep people out of jail. Not every Gladue report leads to a lower sentence, she said.

“My interest is in healing and addressing the root cause because I recognize that not only are aboriginal people overrepresented as offenders, they’re overrepresented as victims.”

As it is, according to the report, “many aboriginal offenders are still being sentenced with only a superficial summary of their life circumstances and little to no information about community or culturally relevant resources at their disposal.”

A 2012 report by Public Safety Canada said that while aboriginal people only made up roughly four per cent of Canada’s population, they accounted for more than 20 per cent of inmates in federal penitentiaries.

In 2010, aboriginal women made up nearly a third of female federal offenders.

In the Yukon, 71 per cent of offenders at the Whitehorse Correctional Centre are First Nations. According to Statistics Yukon, First Nations people make up about 21 per cent of the territory’s population.

Last year Genier left her job at CYFN and stopped writing Gladue reports.

That means the majority of the work goes to Stevens. He now works for Kwanlin Dun First Nation but is still not getting any extra money to complete the reports.

He credits the “grace of my respective employers” with allowing him to continue to do the work.

“Essentially they’ve been footing the bill for the prevision of reports, oftentimes for First Nations people who are not necessarily citizens of their respective First Nations,” he said.

If a limit is placed on when a Gladue report can be ordered, like if an offender is facing a sentence of three months or more, Yukon data suggests three or four trained writers could provide all the reports for the Yukon for a year, the latest study says.

One or two aftercare workers could also be located at a central office and could assist report writers find supports and help clients, it says.

The services could also be contracted out.

Having formal funding would also mean having a more formal process, Stevens said.

It would establish rules for how the reports are requested what the referral process is, timelines and other obligations, he said.

A spokesperson for the Yukon Department of Justice said the department is reviewing the report and expects to have a response by the end of the week.

Genier is quick to defend Gladue reports to anyone who suggests they are creating any sort of two-tired justice system for aboriginal and non-aboriginal offenders.

“This, at its roots, is a remedy,” she said.

“This is a remedy to try to remedy disadvantages that are well documented and that exists in the criminal justice system for First Nations people. This is not something that’s been just pulled out of the air.

Contact Ashley Joannou at

ashleyj@yukon-news.com

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