Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m M A Y 2 0 1 5 61 if it ever is going to be enough. The most we can do is work towards a wider and a broader recognition." Kelly, who is aboriginal, says Gladue is not about getting lower sentences for aboriginal defendants, but about how best to address the underlying issues they face, so defendants who identify themselves as aboriginal do not keep returning to court, often for minor offences. "Gladue reports take time and resources, and so they are not possible in every single case. . . . I wish we could get it for every single case, but that's just not realistic," she says. If there's no report, Kelly does her own background interviews to get the information she needs to present to the court. Ironically it may be easier to get a Gladue report in Ontario than in Manitoba or Saskatchewan, where the majority of defendants are often aborig- inal. Debra Parkes, associate dean of research and graduate studies at the University of Manitoba's law school, notes the gaps are particularly notice- able in a place like Manitoba, where the province funds Gladue components within pre-sentencing reports rather than paying for documents like the 15- to 35-page reports that Ontario's Aboriginal Legal Services produces. A pre-sentencing report focuses on risk assessment, while a Gladue report should look at an individual's situation "in the context of systemic discrimina- tion," she says. "The reality is that there are huge gaps and problems with the implemen- tation of Gladue and there have been from the beginning," she says. "The run-of-the-mill everyday case in Mani- toba is a Gladue case and yet we don't have meaningful submissions before the court about Gladue and the factors that have affected this individual and what it is possible to do in terms of a sentence that might actually address the issue, do something different and break the cycle of criminalization and incarceration." While a lack of resources is a prob- lem, it's up to both lawyers and judges to do a better job, says Parkes. "Even if you don't get a Gladue report, counsel could and should be properly inter- viewing their clients, contacting other people and putting that [information] before the court in the form of a sub- mission. And what I'm hearing from judges is that that's just not there. It's a very cursory sort of thing, and it's often very superficial." Rudin agrees that both funding and legal attitudes are important. "Gladue and Ipeelee are not self-executing deci- sions. They say judges need the informa- tion, but they don't say where judges are going to get the information, and I think for a long time there has been a reluc- tance on the part of government and other funding agencies to really want to make changes to the way information is gathered," he says. "There is the role of the reports, but there is also the role of counsel. . . . I think lawyers need to learn more about the realities of aboriginal people in Canada. They should learn more about the resources in their com- munity so they can make intelligent and substantive submissions." A new legal powerhouse. Highly regarded litigators Marie Henein and Scott Hutchison are Fellows of the American College of Trial Lawyers, members of the Supreme Court Advocacy Institute and authors of frequently cited texts. They have been recognized for their excellence in trial and appellate advocacy, appearing frequently at the Supreme Court of Canada and the Ontario Court of Appeal. Strategic and creative thinking. Their entire team of outstanding lawyers offers experience in criminal, quasi-criminal, regulatory and cross-border litigation. More experience. More defence. hhllp.ca P OW E R I N E X P E R I E N C E . HeneinHutchison_CL_Feb_15.indd 1 2015-01-14 1:44 PM

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