Law Times

Law TiMes • May 28, 2012 FOCUS ON Criminal Law Gladue services limited by region Reports harder to get in many Ontario towns and cities A BY MICHAEL McKIERNAN Law Times of the Attorney General, Legal Aid Ontario, and Justice Canada fund four agencies to provide report writers covering just 18 of the province' Between them, the Ministry boriginal offenders in some parts of the province are strug- gling to get access to Gladue reports. The detailed pre-sentence reports document the life circumstances of the offenders and provide sen- tencing recommendations with particular attention on the factors outlined in the Supreme Court of Canada' s court locations. in R. v. Gladue. Jonathan Rudin, program s landmark 1999 decision director at Aboriginal Legal Services of Toronto, oversees the clinic' program that includes a team of five report writers who work out of bases in Toronto, Brantford, Hamilton, Waterloo, and Sarnia, Ont. "The challenge is we're not able to provide service everywhere," he s Gladue caseworker says. "We get calls all the time from people in other jurisdictions and we have to tell them that they're out of luck." The lack of local services has a particularly big impact on offend- ers Barrie, North Bay, and Lindsay, Ont., according to Rudin. "Courts really want the infor- in Sudbury, Owen Sound, mation, especially in serious cases like a dangerous offender hear- ing. We try to accommodate, but it' man Kristian Justesen said in a statement that when a Gladue caseworker is unavailable, it "may provide additional fund- ing to a defence counsel repre- senting an aboriginal LAO cer- tificate client to cover the cost of retaining a report writer. Legal Aid Ontario spokes- " considers those requests on a case-by-case basis. Even then, practical consid- " LAO erations such as travel time and expenses to send report writ- ers to meet with offenders and their families make it difficult for Aboriginal Legal Services to help everyone who needs it. Rudin says his caseworkers are already stretched as they write about 170 reports between them per year. Reports generally follow a guilty plea or a finding of guilt in really high volume of requests. In order to take it, you're going to have to bump someone else off the end of the queue. s getting harder because of the cases where the Crown is seek- ing a custodial sentence of at least 90 days and typically take four weeks to complete. The process is intensive with caseworkers seeking out as many people as possible with knowledge of the client. "Employers, family members, social workers, anyone we can find, ers themselves also have a voice in the final report. "We " says Rudin. The offend- about their life and getting a sense of why they've done what they've done, get them thinking ommendations to sentencing judges by focusing on the least restrictive options available to them. In Gladue, the Supreme Court directed trial judges sen- tencing aboriginal offenders to consider "the unique systemic or background factors which may have played a part in bringing the particular aboriginal offend- er before the courts" and "the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heri- tage or connection." In order to do that, "judges may The report also makes rec- " says Rudin. take judicial notice of the broad systemic and background factors affecting aboriginal people, Supreme Court decision noted. "It' know what those factors are," says s not always clear that judges Rudin, adding that prosecutors frequently change their position on sentencing after reading one of his team' ple are finding them helpful, but the next step is everyone needs to talk about how to provide reports more equitably across the province because the hit- and-miss approach is not work- ing that well. It' you're in Toronto." "The good news is that peo- s reports. s working fine if highlighting the issue by request- ing reports even when they know no local services are available. In one Owen Sound case last Rudin says some judges are " the The Old City Hall courthouse is a key centre for Gladue- type proceedings, but many areas of the province offer comparably limited access to such services. vowed to push for access to local- ly written reports. Joyce lor with the National Native Addiction, Drug, & Alcohol Program in Wiarton, Ont., worked with Jones and spoke on his behalf at his sentencing hear- ing. She explained that he had lost three jobs and broken up with his partner as a result of the charges and noted she believed he was a good person who deserved another chance. Johnston, a counsel- in jail was going to help him, I wouldn't have gone to court to speak," Johnston tells Law Times. Johnston says Jones was upset by his inability to get a Gladue report for his sentencing. "He really felt it was something was asking for the moon and the stars. We come from a culture within Canadian society that has he was entitled to and I was quite surprised because I thought it was par for the course. It' "If I thought a few months been oppressed for years and he was asking for the court to have a better understanding of the types of things that have happened in his life that he had very little control over. man for the Ministry of the Attorney General, pointed out in a statement that Ontario has established six devoted Gladue courts that focus solely on the sentencing of aboriginal offenders. Four of them are in Toronto with others in Sarnia and London. When Gladue reports are Brendan Crawley, a spokes- " s not like he ing, probation officers are pro- vided instruction on writing pre- sentence reports with an aborigi- nal understanding, including examples of such reports, to sup- port them in addressing Gladue content for aboriginal offend- ers," said Crawley. He added that most provinces provide Gladue content to the courts only through pre-sentence reports prepared by probation and cor- rectional services staff. As part of their basic train- LT AVOID MISSTEPS WHEN RELYING ON WITNESS TESTIMONY WITNESSES AND THE LAW IAN FRASER, Ph.D., LOUISE DIANE BOND-FRASER, M.A., MICHAEL HOULIHAN, Ph.D., KIMBERLEY FENWICK, Ph.D., DAVID KOROTKOV, Ph.D., AND BARRY R. MORRISON, LL.B. NEW PUBLICATION It's an unsettling truth that witness testimony is innately unreliable. Knowing this, how can you minimize inaccuracies that may result from a reliance on it? Witnesses and the Law outlines some key limitations of human memory and offers simple, straightforward strategies that lawyers can use to manage oral testimony more effectively. This long-awaited title is designed to help practitioners identify problems by illuminating every aspect of a witness' testimony. Topics are arranged by chapter and discuss, with specific reference to Canadian cases: the fallibility of memory, post-traumatic stress disorder, repressed memory, body language, mug shots, police line-ups, Generation Y, children as eye-witnesses, and police interview techniques. year, Ontario Court Justice Julia Morneau adjourned a sentencing hearing for 63-year-old Manley Jones while he sought a Gladue report after his conviction for impaired driving. According to a report in the Owen Sound Sun Times on the case, a Gladue report provider in London, Ont., turned Jones away because he wasn't a resi- dent there. Morneau said his case raised "very legitimate concerns," according to the Sun Times, and ORDER # 804526 $99 Hardcover approx. 400 pages January 2012 978-0-88804-526-3 Written by a lawyer and psychologists who specialize in witnesses in the judicial process, Witnesses and the Law is an important resource when attempting to gauge the veracity of oral testimony or establish its accuracy or inaccuracy in court. Even if you are experienced at questioning witnesses, you will be more confident about reaching a correct determination of truth after benefiting from the group expertise contained in this publication. AVAILABLE RISK-FREE FOR 30 DAYS Order online at www.carswell.com CANADA LAW BOOK® www.lawtimesnews.com unavailable, pre-sentence reports prepared by proba- tion staff contain specific Gladue content. " PAGE 9 Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes.

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