Tag Archives: Indigenous

R v Awasis, 2020 BCCA 23

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Appeal dismissed. Public safety must be heavily weighed when sentencing a dangerous offender. Despite the consideration of Gladue factors of the Indigenous offender, his patterns of conduct and the factual findings of treatment would have made a finding of dangerousness inevitable.

Indigenous Law Centre – CaseWatch Blog

The offender was designated to be a dangerous offender and was sentenced to an indeterminate term of imprisonment after being convicted of two sexual offences. He is Indigenous and had an “unfortunate, tragic background.” He became involved with the criminal justice system when he was 13 years old, and he has continued to violently and sexually reoffended in the community. He has severe addictions to alcohol and drugs and has suffered from a lot of trauma, including sexual assault. The offender also has been diagnosed with a severe personality disorder which has contributed to the risk he poses to public safety.

Since the appellant was designated as a dangerous offender, indeterminate detention was available as a sentencing option under s 753(4) of the Criminal Code. To properly exercise discretion under that section, the Court must impose the least intrusive sentence required to reduce the public threat posed by the offender to an acceptable level (R v Boutilier, 2017 SCC 64). To do so, the sentencing judge must conduct an individual assessment of all relevant circumstances and consider the sentencing objectives set out in ss 753(4), (4.1) and 718–718.2, including those developed for Indigenous offenders. An offender who is found to be a dangerous offender has the right to appeal his designation and sentence on any ground of law or fact or mixed law and fact as per s 759(1). The offender applied to submit fresh evidence on appeal, but it was denied due to the credibility and lack of perceived effect on the outcome.

The offender argued that the trial judge failed to take into account evidence of his treatability at the designation stage, which would constitute a reversible error. Consideration of treatability is relevant at both the designation and sentencing stage. When it came to the trial judge’s analysis at the designation stage, the Court found that treatability was not considered. Nonetheless, the offender’s patterns of conduct and the factual findings of treatment would have made a finding of dangerousness inevitable. At the sentencing stage, the trial judge found a lack of evidence that the offender’s risk to the community could not be managed which was upheld by the appellant court.

The offender also argued that the trial judge failed to give a tangible effect to Gladue factors when determining his sentence, which resulted in a disproportionate sentence. The Court acknowledged that it is necessary to look at the whole picture (including Gladue considerations). Still, the sentencing lens for a dangerous offender is constrained as there is an emphasis on public safety which narrows the options available to a sentencing judge. The trial judge recognized that the offender’s Gladue factors reduced his moral blameworthiness; however, his repeated history of reoffending and failure to address the issues that contributed to his criminal conduct made the need to protect the public paramount. It was decided that the trial judge adequately considered the offender’s Gladue factors and overall, the indeterminant sentence that was imposed was acceptable to the Court.

Dumais et al v Kehewin Band Council et al, 2020 FC 25

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Motion dismissed. The reasons for dismissal is not the merits of the Plaintiffs’ grievances against Kehewin Band Council et al for refusing them memberships under Bill C-31, but rather this Court has no jurisdiction to entertain them.

Indigenous Law Centre – CaseWatch Blog

The Plaintiffs have asked for default judgement against the Kehewin Band and Band Council [“Kehewin”]. Due to the historical gender discrimination that existed against women with registered Indian status under the enfranchisement, or “marrying out”, provisions of the Indian Act, SC 1956. In 1985, however, the Indian Act was amended, also known as Bill C-31, to be consistent with s 15 of the Charter. Bill C-31 automatically restored band membership to the women who had lost their Indian status directly through enfranchisement.

Kehewin refused to recognize Bill C-31 or accept any of its eligible individuals or their children as band members. As a result, the Plaintiffs commenced the underlying action in 2000 seeking declaratory relief and damages against Kehewin and Her Majesty the Queen in Right of Canada, as represented by the Minister of Indian Affairs and Northern Development [“Canada”]. The Plaintiffs claim there was a fiduciary duty owed towards them and there was a breach of that duty.

In this matter, the Plaintiffs seek default judgment for damages resulting from Kehewin’s discrimination and associated denial of all tangible and intangible benefits of band membership. The action against Canada has been held in abeyance pending disposition of the present motion. The action moved forward by fits and bounds for almost a decade. Throughout this period, Kehewin engaged in a deliberate and systematic pattern of delay, using all possible means to frustrate the Plaintiffs’ efforts to conduct an orderly and complete discovery.

Kehewin never formally took control of its membership lists. Kehewin rebuffed all attempts to restore membership to the Plaintiffs, refusing to comply with Bill C-31 or recognize Canada’s authority. Kehewin also failed to file an action or application to challenge the constitutionality of Bill C-31. Kehewin simply ignored Bill C-31. Kehewin refused to recognize any Bill C-31 eligible individuals as Kehewin Band members. Kehewin’s adoption and application of their Kehewin Law #1 made it impossible for individuals reinstated to registered Indian status or Kehewin Band membership under Bill C-31 to qualify for Kehewin Band membership.

The applicable test to establish if this Court has jurisdiction is set out by the Supreme Court of Canada: 1) there must be a statutory grant of jurisdiction by the federal Parliament; 2) there must be an existing body of federal law which is essential to the disposition of the case and which nourishes the statutory grant of jurisdiction; and 3) the law on which the case is based must be “a law of Canada” as the phrase is used in s 101 of the Constitution Act, 1867 (ITO-Int’l Terminal Operators v Miida Electronics, [1986] 1 SCR 752 [“ITO”]).

The Plaintiffs rely on the provisions of ss 17(4) and paragraph 17(5)(b) of the Federal Courts Act [“FCA”] to find jurisdiction. First, the nature of the proceeding generally contemplated by ss 17(4) is an interpleader. To the extent any obligation may be owed by Kehewin or Canada to the Plaintiffs, are concurrent, not conflicting. The obligation can only be owed to one. It is the claims as against Canada by other parties which must be in conflict to fulfill the requirements of ss 17(4) (Roberts v Canada, [1989] 1 SCR 322). While Kehewin takes a different legal position regarding the Plaintiffs’ status as band members, this does not create a conflicting claim as against Canada. Therefore, this Court does not have jurisdiction to entertain the Plaintiffs’ action against Kehewin under ss 17(4) of the FCA.

Next, paragraph 17(5)(b) of the FCA grants concurrent jurisdiction to the Federal Court to entertain claims against persons in relation to the performance of their duties as an officer, servant or agent of the Crown. Band councils have been recognized as legal entities separate and distinct from their membership with the capacity to sue and be sued by courts at all levels. On the one hand, they may act from time to time as an agent of the Crown with respect to carrying out certain departmental directives, orders of the Minister and the regulations passed for the benefit of its members. On the other hand, the band councils do many acts which are done in the name of and which represent the collective will of the band members, all of which is directly related to the elective process provided for in the Indian Act whereby the band members elect its governing body. The element of control is key to a finding of agency (Stoney Band v Stoney Band Council, [1996] FCJ No 1113).

The difficulty with the Plaintiffs’ argument is that no facts have ever been advanced in their pleadings which could support a finding of agency, nor does the notice of motion seek a declaration or finding of agency. It is not open to the Plaintiffs on a motion for default judgment to now assert liability of Kehewin based on agency. The introduction of this new theory of liability at this late stage of the proceeding is problematic. In any event, the facts established by the Plaintiffs on this motion do not support a conclusion that Kehewin was under the control of Canada when it refused to provide benefits to the Plaintiff. Regrettably, the Plaintiffs have failed to satisfy the first branch of the ITO test.

R v BMW, 2020 BCPC 9

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After weighing the sentencing principles with the Gladue factors of the offender, a 32-month term of imprisonment was imposed for the guilty plea of two offenses.

Indigenous Law Centre – CaseWatch Blog

The offender pled guilty to one count of sexual interference and one count of sexual assault under ss 151 and 271 of the Criminal Code. At the time of the first offence, the accused already had a criminal record with 38 convictions, and at the time of the second offence, he had committed an additional 14 offences, that included multiple assaults. The issue for the Court was to determine a proper sentence by taking into account all of the relevant purposes and principles of sentencing, including the circumstances of the offence and the circumstances of the offender.

The offender held Indigenous status and lived in a reserve community that has a legacy surrounding residential schools, intergenerational alcoholism, drug addiction, poverty, family violence, suicide, and unemployment. He attended residential school from grades eight to ten. He had a job but lost it for being late and not getting along with his supervisor, which he attributes to alcohol abuse. In his early twenties, the offender lost both of his parents to alcohol abuse and his brother later passed away from a hit and run motor vehicle accident.

Following s 718.2(e) of the Criminal Code, it was necessary for the sentencing judge to consider the above background factors which may have played a part in bringing the offender to the Court and the types of sentencing procedures and sanctions that may be appropriate because of the offender’s Indigenous heritage. The mitigating factors included the offender’s early guilty pleas, his support from his family and his community, and his Indigenous heritage. The aggravating factors included his criminal record, details surrounding the offences, and the offences’ impact on the victim, a vulnerable Indigenous female. Considering the aggravating and mitigating factors, the Court ordered a term of imprisonment for ten months for the first offence and 22 months for the second offence, for a total of 32 months of imprisonment less time served.

R v Paulson, 2020 ONCJ 86

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After weighing the Gladue Report and other sentencing principles with the circumstances of the offender, 338 days of time served plus one day concurrent was imposed for the guilty plea of three offences.

Indigenous Law Centre – CaseWatch Blog

The 28 year old Indigenous offender pled guilty to three counts of Aggravated Assault, Breach of Recognizance, and Assault. The Court read about the offender’s personal circumstances in a Gladue Report and also had the opportunity to hear from her and her family during a sentencing circle. Following the sentencing principles of s 718 of the Criminal Code, it was necessary for the sentencing judge to analyze the circumstances of the offences and determine the weight of those factors while simultaneously considering the principles of denunciation and deterrence.

The offender is a single mother of four children. Her grandparents attended Residential School, which has had a tremendous impact on her mother, and herself. While growing up, she spent significant periods with relatives and friends before she was placed into foster care where she experienced childhood neglect and sexual abuse. The offender became pregnant at the age of fifteen and began abusing illicit substances while also entering into physically abusive relationships with men. She continued to have three additional children but has lost custody of all four. Losing her children caused the offender to experience Post-Traumatic Stress Disorder [“PTSD”], and she spiralled downward into further drug abuse. She did not have a prior criminal record.

It was accepted by the Court that the offender’s criminal actions were the result of extreme intoxication and that she had no memory of the events in question. Aggravating factors were considered including that the assaults were unprovoked, the assaults involved the use of a knife, the offender was on bail during the time of the attacks and was prohibited from possessing weapons, and the level of violence was significant. The mitigating factors included the fact that the offender pled guilty, she had no prior criminal record, her background as an Indigenous person impacted her life, she had PTSD at the time of the offences, and she was remorseful for her actions. It was decided that an appropriate sentence was one that would reflect the time that she had already served.

Dilico Anishinabek Family Care v Her Majesty the Queen (Ontario), 2020 ONSC 892

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Motion for stay dismissed. The applicants have not discharged their burden to show that they, or Indigenous children, will suffer irreparable harm if a stay of the Minister’s Directive and Designations is not granted.

Indigenous Law Centre CaseWatch Blog

This motion is for a stay. These proceedings involve a long-standing jurisdictional dispute between two representative Indigenous groups in northwestern Ontario over who should be permitted to provide child and family services in the City and District of Thunder Bay. The Minister of Children, Community and Social Services [“Minister”] issued designations authorizing three children’s aid societies to provide the full range of child and family services in Thunder Bay. At the same time, the Minister issued a directive providing that: a) Dilico Anishinabek Family Care [“Dilico”] will provide services to all Indigenous children and families other than Indigenous children from First Nations affiliated with Tikinagan Child and Family Services; b) Tikinagan will provide services to children and families from Tikinagan-affiliated First Nations; and c) the Children’s Aid Society [“CAS”] of Thunder Bay will provide services to non-Indigenous children and families [“Directive and Designations”].

Dilico was incorporated in 1986 by the Robinson Superior Treaty First Nations and granted authority in 1994 by a group of 12 First Nations to provide child protection services to Indigenous children and families in Thunder Bay. Dilico has operated as a designated CAS since 1995 under what is now the Child, Youth and Family Services Act [“CYFSA”]. Initially, Dilico’s designation restricted it to exercising powers as a CAS only over those members of the Dilico-affiliated First Nations residing in the City and District of Thunder Bay, together with powers over all children residing on specified reserve lands. In 2012, Dilico entered into a memorandum of understanding [“MOU”] with the Thunder Bay CAS. Under the MOU, Dilico assumed child protection jurisdiction over not only Dilico-affiliated First Nation children, but all Indigenous children in Thunder Bay.

Tikinagan Child and Family Services [“Tikinagan”] was incorporated in 1984 through the efforts of the 49 Chiefs of Nishnawbe Aski Nation which represents many First Nations across northwestern Ontario. In 1986, Tikinagan was given approved agency status by the Ministry and, in 1987, received its designation as a CAS. Tikinagan’s geographical area includes most of northwestern Ontario including parts of the District of Kenora and the northwest portion of the District of Thunder Bay. Tikinagan has the authority to offer the full range of child and family services within its territorial jurisdiction.

Dilico and the Fort William First Nation brought applications for judicial review seeking to set aside the Directive and Designations of the Minister on various constitutional and administrative law grounds, which will be heard at a later date. The applicants’ also motioned for a stay of the Directive and Designations; below are the reasons for the dismissal.

The court must consider three cumulative factors in determining whether to grant a stay: 1) whether there is a serious issue to be tried; 2) whether the moving party would suffer irreparable harm in the absence of a stay; and 3) whether the balance of convenience as between the parties favours granting the stay, in the sense that the harm that will be suffered by the moving party if the stay is not granted outweighs the harm that will be suffered by the responding party if it is (RJR-MacDonald Inc v Canada (AG), [1994] 1 SCR 311 [“RJR-MacDonald”]).

Cases involving child welfare or child custody require a modification to this approach to the three-part RJR-MacDonald test. The overriding consideration in such cases is the best interests of the child. In this matter, the Minister, the Thunder Bay CAS and the two Indigenous CASs operate within a statutory framework which makes the best interests of the child paramount. Section 1(1) of the CYFSA provides that the “paramount purpose of this Act is to promote the best interests, protection and well-being of children.” The applicants have, asserted grounds for judicial review of the Directive and Designations which are not frivolous. There are serious issues which can only be resolved in a full hearing. The applicants have, therefore, satisfied the first aspect of the RJR MacDonald test.

The Court concluded that the applicants have not discharged their burden to show that they, or Indigenous children, will suffer irreparable harm if a stay of the Directive and Designations is not granted. This conclusion is sufficient to dispose of the motion. However, there are other factors which tip the balance against a stay in any event. The public interest also includes a public interest in the legitimacy of public institutions. The public interest therefore includes a high level of respect for the decisions of the legislative and executive branches of government. The courts have limited institutional competence to interfere with those decisions. The courts have a supervisory role to play, but should be wary of usurping legislative and executive roles, particularly where they lie at the policy end of the decision-making spectrum (Hupacasath First Nation v British Columbia (Minister of Forests), 2005 BCSC 345; RJR-MacDonald).

At the end of the day, the balance of convenience weighs in favour of refusing the stay and, pending the disposition of the applications for judicial review, advancing the goal of providing child welfare services to Tikinagan-affiliated children and their families in a culturally appropriate manner. The applicants’ onus of showing that the balance of convenience favours granting the stay has also not been discharged.

 

Engstrom and Ragan v Peters First Nation Band Council, 2020 FC 286

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Application allowed. Peters First Nation Band Council is ordered to take all steps necessary to grant full Band memberships to the Applicants.

Indigenous Law Centre – CaseWatch Blog

The Peters First Nation Band Council [“Council”] rejected the Applicants’ respective applications for band membership. This matter is the second application for judicial review seeking relief in connection with the denial of their memberships.

The first application was granted, but the Court declined to express an opinion about the merits of the Council’s decision in denying membership to the Applicants. However, it was found that the Council had acted unfairly by failing to inform them in advance of the factors that would be taken into account in deciding their applications. There was also concern regarding the Council’s failure to provide substantive reasons for its decision. The matter was accordingly remitted to Council for reconsideration, but once again, the applications were refused.

The Court was not able to ascertain the exact motives of the Council for denying Band memberships to the Applicants. It can assess, however, the Council’s stated reasons for denying those memberships to determine whether those reasons had the mark of rationality, intelligibility and justification. The focus of judicial review is on the reasons provided by the decision-maker in support of its decision. According to the Supreme Court of Canada, reasonableness review “must be on the decision actually made”, not the reasons that could have been made (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [“Vavilov”]). Robust judicial review is about outcomes and a decision-maker’s reasoning process in getting to an outcome. Both must be reasonable in light of the legal and factual constraints that bear on the decision. A primary legal constraint is the governing statutory scheme. It is not open to a decision-maker to disregard the applicable rules. There is no such thing as absolute or untrammelled discretion (Roncarelli v Duplessis, [1959] SCR 121).

A decision-maker may have some room to interpret the rules that apply to a matter before it but that exercise must be consistent with the text, context and purpose of the provision (Vavilov). Where the words employed are precise and unequivocal, their ordinary meaning will usually be determinative. It is not open to the decision-maker to adopt an “inferior” interpretation merely because it is plausibly available and expedient; or to “reverse-engineer” to get to a desired outcome (Vavilov). The express governing rules that apply to the Council’s membership decisions are contained in the Peters Indian Band Membership Code [“Code”]. The Code was adopted by the Band in 1990 and replaced the band membership provisions that had been previously contained in the Indian Act.

In rejecting the applications of the Applicants, it is clear that the Council did not consider itself bound by the membership criteria set out in the Code. It was not open to the Council to make up its own membership rules to supplement the explicit criteria that were adopted in 1990 when the Band took control of its memberships. The Council has acted unlawfully, unfairly and in bad faith in rejecting the membership applications of the Applicants. The Council has repeatedly shown itself to be unfit to decide these matters and there is no reasonable expectation that fairness and reason will prevail if this matter is remitted to the Council again. The Council is directed to take all the steps necessary to grant full Band memberships to the Applicants.

Servatius v Alberni School District No 70, 2020 BCSC 15

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The petitioner failed to establish that the demonstrations of Indigenous culture at her children’s school interfered with her or her children’s ability to act in accordance with their religious beliefs. Accordingly there was no infringement of the petitioner’s or her children’s freedom of religion.

Indigenous Law Centre – CaseWatch Blog

As part of an effort to acquaint students with Indigenous culture and to promote a sense of belonging in Indigenous children, a Nuu-chah-nulth Elder visited a Port Alberni elementary school and demonstrated the practice of smudging. A few months later, at an assembly, the students witnessed an Indigenous dance performance and a prayer. The petitioner’s children witnessed the demonstrations. The petitioner is an evangelical Christian. She submitted that both the smudging and the prayer that accompanied the dance interfered with the religious freedoms of herself and her children guaranteed by the Charter of Rights and Freedoms. The petitioner sought a declaration to this effect and an order in the nature of prohibition enjoining further events of this nature in the school district.

It was conceded that the petitioner’s beliefs were sincere and that they had a nexus with religion. The petitioner, however, had two paths to fulfill a finding that the School District had interfered with their ability to act in accordance with their religious beliefs. First, and principally, the petitioner argued that the School District breached the state’s duty of neutrality. She had to show that (1) the School District professed, adopted, or favoured one belief to the exclusion of all others; and (2) the exclusion resulted in interference with the petitioner’s or her children’s freedom of conscience and religion. The organization of these events reflected a fathering momentum to incorporate the teaching of Indigenous worldview and perspectives. Arranging for students to observe hoop dancing accompanied by an Indigenous prayer, could not reasonably be interpreted as the School District professing, adopting, or promoting religious beliefs. Therefore, the petitioner’s argument failed to clear the first hurdle.

The petitioner’s second argument surrounded the right not to believe in Indigenous spirituality, the ability to refuse to participate in these practices, and the freedom from government coercion to affirm a specific religious belief as protected under s 2(a) of the Charter. She maintained that her children were compelled to participate in Indigenous spiritual practices, or affirm spiritual beliefs associated with those practices and that this constituted non-trivial interference with her and her children’s ability to act in accordance with their religious beliefs. Proof on an objective basis required more than the children being in the presence of an Elder demonstrating a custom with spiritual overtones or being in the presence of a dancer who said a brief prayer. This did not interfere with the ability to act in accordance with one’s religious beliefs.

The demonstrations were admirable and admissible efforts to teach, in a memorable way, about Indigenous beliefs. It was proper and advisable in light of the historical circumstances that the School District organize such events. The petitioner had therefore failed to establish that the Nuu-chah-nulth smudging in her children’s classrooms or the prayer said by the hoop dancer at the school assembly interfered with her or her children’s ability to act in accordance with their religious beliefs. Accordingly, no infringement of the petitioner’s or her children’s freedom of religion had been proved.

R v TLC, 2019 BCPC 314

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After weighing the sentencing principles with information provided by a Gladue report, a conditional discharge with 18 months of probation was imposed for the guilty plea of three offenses.

Indigenous Law Centre – CaseWatch Blog

TLC pled guilty to two assaults on her boyfriend and a breach of bail by having contact with him contrary to ss 266 and 145(3) of the Criminal Code. The Crown and Defence counsel agreed on what the appropriate sentencing for the offence should have been and collaborated to recommend a joint submission for a suspended sentence with an 18-month period of probation. An alternative method of placing the accused on probation would have been a conditional discharge which, would have prevented them from having a criminal record. When deciding whether the joint submission was appropriate, it was determined that the Court should only depart from a joint submission where “the proposed sentence would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system” (R v Anthony-Cook, [2016] 2 SCR 204). However, as this case involved an Indigenous offender, the Court found it necessary to evaluate whether there was “enough information to impose a fit sentence that properly considers the Indigenous circumstances of that particular Indigenous accused.”

There was a Gladue report written for TLC. It outlined that the offender was a First Nations woman who was not directly raised with her culture. Her mother was abused when she attended residential school. TLC was abused as a child and grew up with violence in her home. TLC was a victim of domestic assault and had been receiving trauma counselling and therapy. She also was two subjects away from completing grade 12 and had completed the Indigenous Tourism Ambassadors program through the Indigenous Community for Leadership and Development. The Court recognized numerous aggravating factors, including the violence perpetrated against TLC from a male and the repeated victimization that she faced throughout her life. Deterrence, denunciation and rehabilitation were also considered as the offender was charged with spousal assault. It was decided that TLC had truly turned her life around and giving her a criminal record would not serve the public interest; therefore, a conditional discharge with 18 months of probation was imposed.

R v Buffalo, 2020 ABQB 41

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Conditional sentence granted for an Indigenous offender. A conditional sentence is available to an offender depending on the context of the case and if it is appropriate. Sentencing principles, as well as the safety of the community, must be considered in granting restorative sentences.

Indigenous Law Centre
Indigenous CaseWatch Blog

A Gladue report was ordered for an offender, who has pled guilty to three charges contrary to the Criminal Code. The offender is a member of the Samson Cree Nation. He had a difficult and unstable upbringing, which had led to unfortunate life choices. These choices included a criminal record with offenses of theft, break and enter, assault, aggravated assault, a variety of weapons charges, mischief, manslaughter, and instances of non-compliance. However, he had recently turned his life around by embracing his cultural heritage, supporting his family, and operating his own business which employed other Indigenous persons. He was supported by numerous letters of support from community members and local businesses.

Since the offender requested a conditional sentence, the Court undertook the analysis of the four criteria that are required, as outlined by s 742.1 of the Criminal Code (R v Proulx, 2000 SCC 5). This framework directs the Court to determine whether a conditional sentence is “available” in the context of the case and whether it is “appropriate” to impose a conditional sentence. The availability relates to the existence – or lack of – the minimum term of imprisonment, and if not, whether a federal penitentiary term is indicated in the circumstances of the case. Regarding appropriateness, the Court considered whether the fundamental purpose and principles of sentencing are met by a conditional sentence, including the duration and conditions that should be attached. As well, the question was addressed of whether the safety of the community was endangered by the offender serving the sentence in the community.

After reviewing the circumstances of the case, the Court determined that a conditional sentence was available to the offender. It was decided that the restorative sentence met the objectives of the sentencing regime as per ss 718 to 718.2 of the Criminal Code.

 

 

R v Gamble, 2019 SKQB 327

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The accused’s application for a state-funded Gladue Report is dismissed.

Indigenous Law Centre – CaseWatch Blog

 The accused was found guilty for aggravated assault and unlawful confinement of a victim. The victim was waylaid and taken into a house where he was beaten and tortured. He was branded and his finger was cut off.

The sentencing of the accused has been delayed numerous times. The ongoing issue is how best to put required Gladue information (R v Gladue, 2 CNLR 252) before the Court for sentencing purposes. The accused wants a full Gladue Report filed, but has no resources for it. He wants the state to pay for this report. Court Services opposes such an order. The position taken is that there is sufficient information through a series of pre-sentence reports [“PSR”] already filed. Further, it is argued there are other means of putting that information before the Court.

At present there are no national standards and there is no national regulator. No formal accreditation is required to do a Gladue Report, as none exists. Section 718.2(e) of the Criminal Code and R v Gladue and R v Ipeelee, [2012] 2 CNLR 218, require that “Gladue information” be considered by any sentencing judge when dealing with an Indigenous offender. There can be no doubt that modern sentencing requires such a consideration. While s 718.2(e) is silent on how the Court may obtain this required information, for the purposes of sentencing, obtainment of this information is a must.

The defence argued that the information in the PSRs was inadequate. It is unclear by whose standards this would be the case. A major flaw in the accused’s argument was that there are absolutely no standards, nationally or even provincially, for the preparation of Gladue Reports or the type of information a court needs, and that requirement is highly fact-dependant. What is required in one case may not be required in another.

There is no basis in the evidence before the Court or in the law that the Gladue information must come to the court in the form of a report. Even if this Court granted the order sought by this offender, an author would not be identified or an amount for fees be decided for such a report. That is subject to negotiations between a potential author and Court Services. To make an order that is so directive to the executive branch of government is to overstep within the judicial branch. The granting of the relief sought herein is exceptional, rare, and done in response to specific and exceptional circumstances where a PSR does not provide the appropriate information and there is no other way to obtain that information and present it to the court. That is not the case here.