Ruling highlights geographic discrepancies in aboriginal justice services

With aboriginal justice issues under the microscope this week, a new ruling from the Ontario Court of Justice highlights the problem of unequal access to Gladue programming across the province.

In R. v. Doxtator, Justice Lloyd Dean was clearly annoyed with the absence of agencies able to produce a Gladue report in the Windsor, Ont., area.

“There are no agencies, government or otherwise, within Essex County that are able to provide the court with a full Gladue report,” he wrote. “Such agencies only exist in a few communities across the province.”

The ruling last month involved sentencing for Andrew Edward Doxtator on a charge of distributing child pornography. While he had a pre-sentence report that included Gladue content, Dean considered whether that was enough given the courts duty, as per the Supreme Court of Canada’s ruling in R. v. Gladue, to “take judicial notice of the systemic and background factors affecting aboriginal people in Canadian society.”

Aboriginal Legal Services of Toronto, he heard, offers services in Toronto, Brantford-Hamilton, Waterloo-Wellington, and Sarnia, Ont., while various other organizations do so in the north. While Dean noted a case of an offender’s transfer to Sarnia for Gladue services, the court received a letter from Aboriginal Legal Services of Toronto program director Jonathan Rudin that noted the organization couldn’t prepare a report for Doxtator given its existing workload.

In the end, Dean found he could accept the pre-sentence report with Gladue content.

“I conclude Mr. Doxtator is not entitled as of right to a full Gladue report,” he wrote. “A full report is not necessary as long as the pre-sentence report with Gladue content is sufficient to meet the requirement of special attention to the circumstances of aboriginal offenders, or in other words, satisfies me that I am fully apprised of Mr. Doxtator’s background as a result of the report, as a result of counsel submissions and as a result of any other materials filed or evidence called by counsel.”

But the judge wasn’t happy about the situation.

“However, I must say I am troubled that other areas of the province have access to the services of ALST or like agencies, but Windsor does not. On the surface it smacks of unequal treatment. Although I have sufficient information, it seems clear to me had I had a full Gladue report I would have more. Is sufficiency the bar to pass, or is it the best and most complete information? Based on the authorities I have discussed above, it appears to be the former. Does it matter that I could have had more? Does it matter that other courts, other aboriginal offenders in the province are able to get more? Should it matter?”

The ruling comes, of course, as former Supreme Court justice Frank Iacobucci highlighted serious concerns about the treatment of aboriginals in the justice system, particularly as they relate to their absence on jury panels. As Law Times reports this week, Iacobucci’s report on the issue noted aboriginals’ discomfort with the justice system’s overall approach.

“The traditional aboriginal justice process was aimed at restoring the offender and the victim to a place of harmony, peace, healing, and reconciliation,” states the report.

“Because criminal trials require the jury to make a finding of guilt or innocence, which potentially affects a person’s future in a negative way, many First Nations people feel unwilling to participate in that process.”

Reacting to the report, Dianne Corbiere, a partner with Nahwegahbow Corbiere, said it’s “high time” Ontario implemented the recommendations in the report, including finding a way of incorporating traditional aboriginal laws into the justice system.

“We’re not about just including us,” she said. “We’re about recognizing that we have our own tradition and laws.”

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