Thirteen years after the Supreme Court of Canada issued a demand for information that would enable trial judges to pass more culturally sensitive sentences for aboriginal defendants, its edict has been largely ignored in much of the country.
In most regions, a lack of funding or a lack of interest has meant that detailed reports delving into the background of offenders are simply not prepared.
Yet, these documents – named Gladue reports after the defendant in the 1999 Supreme Court's decision from which they evolved – are a vital aid to judges considering the impact on a defendant of the historical mistreatment of aboriginal communities. At the core of the Gladue decision was a deep concern with the over-representation of aboriginal people in jail. When judges are deprived of rich, case-specific information, aboriginal offenders are much more likely to be thrown in jail at a disproportionate rate.
"The reports are indispensable," said Chief Justice Glenn Joyal of the Manitoba Court of Queen's Bench. "If you don't get the best information with respect to the individual background and sentencing options, the judge is not in a position to come to the fit and proper sentence that Gladue requires."
Gladue reports typically take an aboriginal court worker about four to six weeks to prepare. They include aspects of cultural history; interviews with the offender, his family and community members; and recommendations for community programs as an alternative to incarceration.
Timothy Nahmabin, a 34-year-old aboriginal man from Ontario's Walpole Island, credits his freedom to a Gladue report and a sensitive judge. Facing probable prison time for assault with a weapon, he was instead given a conditional sentence featuring anger management counselling.
"I'm not a violent person," Mr. Nahmabin said. " I just need help in understanding why I lashed out so it won't happen again. The court system can be quite biased and it needs this kind of information to understand what is going on with people like me."
Last March, a frustrated Supreme Court reiterated its call. It warned that any sentencing decisions that fail to consider Gladue factors may be overturned. Officials in some regions are now scrambling to comply.
Associate Chief Justice Peter Griffiths, of the Ontario Court of Justice, said that Gladue reports must be viewed as obligatory. "They aren't something that is just nice or helpful," he said. "This is the law. It is what the Supreme Court of Canada says."
Crystal Hill, who co-ordinates Gladue reports for Nova Scotia's Mi'kmaq Legal Support Network said 14 are being prepared, compared with just two in 2011.
Pamela Shields, a B.C. Legal Services Society official who co-ordinates all of the Gladue reports in the province, said she is struggling to meet rising demand.
Saskatchewan, Alberta and Manitoba have barely begun to produce reports. While the number in Alberta has shot up from 14 in 2011 to 100 that are now in production, most of them are being prepared by probation officers – who are trained to assess risk factors but have no particular understanding of aboriginal culture and history.
In Quebec, Gladue reports are almost unheard of. Sentencing a Quebec aboriginal woman last spring in Ontario for importing heroin, Ontario Superior Court Judge Casey Hill accused the province of "state misconduct" for refusing to produce Gladue reports.
Ontario has the best infrastructure for producing the reports, yet the situation is bleak.
The leader in the field, Aboriginal Legal Services of Toronto, produces about 200 Gladue reports per year. Jonathan Rudin, its program director, predicted that judges may soon refuse to sentence unless they have one.
Another problem obstacle is the disparate nature of aboriginal communities. Judges must also brave latent public hostility about a measure many see as lenient.
"Gladue is not a get-out-of-jail free card," Ms. Shields said. "Poverty is poverty, but no one has experienced poverty the way aboriginal people have. There were no Indian residential schools for other populations. Indian women couldn't even vote in the sixties unless they gave up their Indian status. There is just so much ignorance about the history of aboriginal people."