In this blog
post, we’ll explore these roles in detail, examining how they contribute to the
justice process and highlighting the variations in how they are applied across
different communities and justice agencies. By understanding these roles and
their flexible implementations, we gain a clearer picture of the efforts being
made to create a more culturally sensitive and effective justice system.
What is an Indigenous Bail Supervisor?
For over
three decades, Bail Verification and Supervision Programs (BVSPs) have been
integral to the criminal justice system in Ontario, designed to assist
individuals awaiting trial by providing crucial verification, supervision, and
enforcement. Traditionally managed by non-profit organizations such as the John
Howard Society and the Salvation Army, these programs aimed to ensure that
accused individuals were monitored effectively and supported during their bail
period. However, it became clear that these programs were not adequately
addressing the needs of Indigenous people, who faced distinct challenges and
systemic barriers within the justice system.
In response
to this gap, the Indigenous Justice Division (IJD) initiated the development of
Indigenous Bail Verification and Supervision Programs (IBVSPs) in 2016, with
the first program launching in 2017. These new programs are operated by
Indigenous organizations and represent a significant shift towards providing
services that are culturally appropriate and contextually informed. The IBVSPs
are designed to address the unique needs of Indigenous individuals,
acknowledging and respecting their cultural backgrounds and the systemic issues
they face.
The key
distinction of IBVSPs lies in their culturally informed approach. Staff members
possess cultural knowledge and experience, enabling them to offer support that
aligns with Indigenous values and practices. During the verification stage,
IBVSPs provide pertinent information about the client and their community,
including Gladue factors that reflect the historical and systemic challenges
faced by Indigenous individuals. This approach helps the court make more
informed decisions regarding bail and bail supervision.
IBVSPs also
emphasize collaboration and coordination with other Gladue services, such as
Indigenous Courtworkers and Gladue Report Writers, as well as local service
providers. This network ensures that Indigenous accused persons receive
comprehensive support, including access to housing, counseling, and treatment,
all while remaining connected to their community. The flexibility of the
eligibility criteria within IBVSPs reflects an understanding of the systemic
barriers that may affect Indigenous individuals, offering a more tailored
approach compared to the rigid criteria of traditional BVSPs.
Another
significant difference is the approach to compliance and enforcement. While
traditional BVSPs might quickly resort to charges for missed appointments or
non-compliance, IBVSPs exercise discretion. They prioritize support and
understanding over punitive measures, only pursuing breaches in cases of
repeated failures to report, non-compliance that jeopardizes safety, or
interference with victims or witnesses. This approach recognizes the complex
realities faced by many Indigenous clients and aims to provide support rather
than simply enforcing compliance.
What is a Restorative Justice Coordinator
To start of this discussion, you must first understand the question: what is restorative justice? According to the Government of Canada, restorative justice is designed not just to enforce the law, but to foster healing and repair relationships.
This approach facilitates communication between victims, offenders, and the community, allowing them to discuss the causes and impacts of the crime. Instead of focusing solely on punishment, restorative justice seeks to address the needs of all parties involved through processes such as conferences and dialogues.
Guided by principles of respect and inclusivity, restorative justice integrates these practices within the Canadian legal system, providing a more compassionate and effective means of achieving justice.[1]
When exploring restorative justice, Nishnawbe-Aski Legal Services Corporation offers a perspective deeply rooted in community values and traditional practices. Their Restorative Justice Program, established in 1996 following guidance from the Chiefs of Treaty No. 9, emphasizes a community-based approach tailored to the needs of 49 First Nation communities within the Nishnawbe Aski Nation territory.
In practice, this involves facilitating healing circles where
victims, offenders, and community members come together to discuss and address
the harm caused by the crime. The circle, led by a skilled Restorative Justice
Facilitator, aims to reach a consensus on how the offender can make amends.
This might include actions such as community service, apologies, restitution,
or participation in educational and treatment programs. Successful completion
of these agreements results in the matter being resolved, while failure to
adhere to the terms can lead to the case being returned to the conventional
court system.[2]
When
explaining the role of a Restorative Justice (RJ) Coordinator, I draw from the
Métis Nation of Ontario's job posting. The RJ Coordinator oversees the Justice
Circle Program, which helps Indigenous individuals navigate the justice system
through culturally relevant practices. They manage restorative circles, recruit
and train volunteers, and work with court staff and community partners. (Métis
Nation of Ontario, 2021)[3]
In my
experience, it's important to recognize that restorative justice programs often
serve multiple courthouses and includes tasks beyond just RJ programming.
Coordinators might also perform courtwork, manage justice or community
councils, and handle program promotion. Their capacity is frequently stretched
to the limit, often for low pay, due to inadequate funding.
What is a Gladue Report Writer?
Gladue reports are
prepared by community based Gladue Report Writers, where available.
Gladue Report
Writers prepare Gladue Reports at the request of the Court. The purpose
of the Reports is to provide the sentencing judge with the information they are
required to consider when sentencing an Indigenous person, i.e. (1) the unique
systemic or background factors which may have played a part in bringing the
individual before the courts; and (2) the types of sentencing procedures and
sanctions which may be appropriate for the individual because of their
particular Indigenous heritage or connection.
Gladue Reports
provide a holistic account of an Indigenous person’s life history, strengths, barriers,
needs and risks, contextualized within the legacy of colonialism and systemic
discrimination within the criminal justice system. This assists the Court in
fulfilling their obligations under s.718.2(e) of the Criminal Code, as
interpreted by the SCC’s decisions in Gladue and Ipeelee.
MAG (along with the federal Department of
Justice and Legal Aid Ontario) funds Gladue Report Writers.
Indigenous communities and organizations
that provide Gladue Report writing services determine eligibility based
on their available resources and, as a result, these reports may not be
available for very minor offences.
What happens in areas that don’t have a Gladue Writer?
Unfortunately, Gladue Report Writers are not available in
every area. In my opinion funding is extremely stretched thin in the areas that
Gladue Reports are available.
The court does not go as far as to say that a Gladue report
is required in every case or that there is a right to a Gladue report,
but rather it is the Gladue considerations that must be applied in all
cases.[4]
Although, the provision of Gladue Reports is not mandatory,
it is clear that Gladue Reports are of immense assistance to a
sentencing judge to engaging in the mandatory Gladue analysis, and an
integral tool to address systemic discrimination and to reduce the
over-representation of Indigenous people in custody. This has been recognized
by all levels of court in the country and numerous government and academic reports.
Some examples include:
1.
LAO’s 2012 Report on Indigenous Services “Relationships First,
Business Later” concluded that the effectiveness of these Reports in
reducing the use of incarceration and shortening sentences “cannot be
overstated”.[5]
2.
A review of LAO’s Gladue Report Writing services conducted
by Dr. Jane Dickson found evidence showing the effectiveness of Gladue
Reports in obtaining non-custodial sentences, and reducing sentences when a
period of incarceration is imposed by the sentencing court.[6]
3.
The Report of the National
Inquiry into Missing and Murdered Indigenous Women and Girls (2019) – Call
to Justice #5.15 “We call upon federal, provincial, and territorial governments and all
actors in the justice system to consider Gladue reports as a right and
to resource them appropriately, and to create national standards for Gladue
reports, including strength-based reporting.”[7]
There is an
obligation on the part of all justice officials, including Counsel, to ensure
that sufficient information about an Indigenous person’s circumstances and
other systemic factors are considered to inform decisions relating to bail and
the development of appropriate sentencing plans.
In court locations
that do not have a Gladue Writer, sentencing information for Indigenous
persons before the court may be provided to the court through Counsel.
Even where a defence lawyer fails to present
these factors, it is incumbent upon the judge to make inquiries and failure to
do so is an error in law.[8]
Most recently, in R. v. Hibback (2023), the SCC held that:
The
principles relating to the consideration of Gladue reports are settled:
these considerations must be applied in all cases where they are relevant,
including where the offence charged is serious. Sentencing judges must consider
the unique systemic or background factors which may have played a part in
bringing the particular Indigenous offender before the courts and the types of
sentencing procedures and sanctions which may be appropriate in the
circumstances for that offender (Ipeelee, at paras. 59-60).[9]
In certain
locations some pre-sentence reports prepared by probation staff may include
content related to Gladue; however, these are not the same as Gladue
Reports and should not be used like a Gladue Report.
What is a Gladue aftercare worker?
Gladue Aftercare Workers assist Indigenous persons who have been
convicted of an offence in completing the terms of sentence that they received,
whether it’s custody (i.e. by advocating with corrections regarding placement
recommendations made by the judge or at parole hearings), or a non-custodial
disposition (i.e., by connecting the client with service providers,
accompanying client to appointments, applying for treatment, etc).
In my experience, the role of the Gladue Aftercare Worker
will vary depending on the jurisdiction and service provider, but they
frequently are a resource for the court to give information and context if the
client has had any accomplishments or barriers to the successful completion of
their sentence. In some jurisdictions, Gladue Aftercare Workers assist
people on bail to comply with the terms of their recognizance. Gladue
Aftercare Workers may assist clients in complying with sentence and bail
conditions by:
·
assisting clients to complete documentation to enter into a
treatment centre;
·
helping clients in accessing medical professionals;
·
aiding clients in finding appropriate counselling services;
·
acting as a liaison between clients and social support programs;
·
making referrals to other agencies as necessary (i.e. housing,
employment and training centres, ID clinics, etc.);
·
supporting the client with completing other tasks as appropriate;
·
supporting the client with reintegration into their home community
or urban area after release; and
· acting as a liaison between the client and other justice personnel.
What is a NILO Worker?
According to
the Grand Council Treaty #3 (Grand Council Treaty #3, n.d.), the NILO is
responsible for overseeing and coordinating support services to ensure the
well-being and holistic care of individuals in the Kenora Jail. This role
involves collaborating with various stakeholders, organizing resources, and
implementing initiatives to enhance the quality of life for inmates.
In practice,
a NILO performs several key functions:
·
Planning and facilitating Indigenous programs and activities
within the jail.
·
Interviewing Indigenous inmates upon admission to inform them of
available programs and services.
·
Acting as a liaison between inmates and staff, community groups,
and other service providers.
·
Assisting with the development of discharge plans and temporary
absence plans for inmates.
·
Facilitating communication between Native inmates, their families,
institutional staff, and other agencies.
·
Providing cultural and spiritual support and training correctional
staff on Anishinaabe culture.[10]
In my
experience, at its core, the NILO role is to bridge the gap between Indigenous
inmates and the broader justice system, ensuring that inmates receive culturally
relevant support and assistance throughout their incarceration.
[1] Government of Canada. (2021). Restorative justice.
[2] Nishnawbe-Aski
Legal Services Corporation. (n.d.). Restorative justice:
Maa-Mii-Nah-Chi-Ke-Win. Retrieved August 25, 2024, from
https://www.nanlegal.on.ca/restorative-justice
[3] Métis Nation of Ontario. (2021). Restorative Justice
Coordinator. Retrieved from https://www.metisnation.org
[4] R. v. Kyle Parent, 2021 ONSC 3701 “There is no doubt that a fulsome Gladue report is of immense assistance to a sentencing judge in ensuring that she or he fulfills its obligation under s. 718.2(e) of the Criminal Code but it is not the only means. A report is not an end in itself. Section 718.2(e) of the Criminal Code entitles every Indigenous offender to the method of analysis that the Supreme Court of Canada described in R. v. Gladue and R. v. Ipeelee – not to a particular format for the evidence at sentencing.”
[5] Relationships
First, Business Later Aboriginal Justice Strategy consultation report: Part 1
June 2021 Prepared by: Aboriginal Justice Strategy. Online at: https://www.legalaid.on.ca/wp-content/uploads/AJS-consultation-report-part-1-EN_2021-06.pdf
[6] Note: This report is not
published, and IJD-MAG has only received a copy of the executive report. This
quotation is from the March 13, 2023, Memorandum to Jane Mallen, Assistant
Deputy Attorney General, MAG; from David Field, President & CEO, Legal Aid
Ontario; Subject: Transfer of Oversight and Funding of Gladue Services
to Ministry of the Attorney General.
[7] Reclaiming Power and
Place: the Final Report of the National Inquiry into Missing and Murdered
Indigenous Women and Girls – Calls For Justice. Canada, 2019. Web Archive.
https://www.mmiwg-ffada.ca/wp-content/uploads/2019/06/Calls_for_Justice.pdf
[8] R. v. Hibback, 2023 SCC 3 (CanLII) “The principles relating to the consideration of Gladue reports are settled: these considerations must be applied in all cases where they are relevant, including where the offence charged is serious. Sentencing judges must consider the unique systemic or background factors which may have played a part in bringing the particular Indigenous offender before the courts and the types of sentencing procedures and sanctions which may be appropriate in the circumstances for that offender (Ipeelee, at paras. 59-60).”
[9] R. v.
Hibback, 2023 SCC 3 (CanLII)
[10] Grand Council Treaty #3. (n.d.). Native Inmate Liaison Officer (NILO) job description. Grand Council Treaty #3.
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