Two Vancouver provincial court judges have expressed concern about delayed reports needed for sentencing after guilty pleas — situations that have left family members on both sides of cases awaiting closure.
A Glacier Media investigation has found the system is struggling to keep up with reports for both Indigenous offenders and others before the court.
A recent example is Nov. 7, the start of sentencing proceedings for Travis Ramsey Bell.Bell pleaded guilty to firearms charges in B.C. and Ontario. That day, Bell was in the prisoner's dock ready for the sentencing.
Court documents show one of the cases is 573 days old and counting, and is related to an incident in Whistler. There are a couple of guilty pleas recorded related to firearms offences.
There's also a Burnaby charge, a case that is 587 days old. Guilty pleas are recorded there too for possession of a firearm without a license and/or registration.
Bell also pleaded guilty to a number of Toronto charges (299 days old), and is also guilty of "dangerous operation of a conveyance and mischief endangering life." Those charges are 221 days old.
The provincial court’s 2021 annual report said the court’s standard is to have 90 per cent of criminal cases concluded within 180 days.
“The court has not met this standard during the past five years,” the report said.
Some delays could include whether an accused sets a matter for trial, Crown time to provide case disclosure to defence and lawyer availability in setting court dates. Report delays are not mentioned.
Bell’s lawyer, Jas Mangat told Regional Administrative Judge John Milne, a Gladue report was ordered in July and was expected Nov. 4. Such reports are prepared for Indigenous offenders. Mangat said it had been sent for a legal review.
“I’m going to look into your matter,” Milne told Bell. “We don’t know when this legal reviewer is going to get around to reviewing it.”
Since 2021, Gladue reports have been prepared by the BC First Nations Justice Council.
Amanda Carling, a lawyer and acting council executive director, said the Bell report was requested July 8.
“The report was requested at the height of the backlog crisis,” Carling said.
It was assigned to a writer on Sept. 12 with a deadline for the report to go to legal review of Oct. 31, 2022. The deadline to complete the legal review was Nov. 4, 2022, but the final report was not uploaded the next day.
“The final report was delivered to counsel on Nov. 8,” Carling said.
The second judge
On Oct. 26, Judge David St. Pierre of the same court was told a late pre-sentencing report (PSR) had delayed the sentencing of a man who pleaded guilty to manslaughter in the punching death of a Downtown Eastside man.
Jonathan James Payne was charged in January of 2021 in connection with the death of Neil Scarisbrick. The Vancouver Police Department said the 36-year-old victim was sucker-punched during an altercation near Columbia and East Hastings streets in the early hours of Sept. 7, 2020 and died from his injuries.
However, Crown prosecutor Tara Laker told St. Pierre the PSR was only received Oct. 21 despite being due Aug. 9.
St. Pierre called the situation "ludicrous." He said he would be discussing the situation with Milne.
Defence lawyer Kevin Westell told St. Pierre he hadn’t seen the report yet. He described the delay as part of the general inaccessibility of such reports provincewide.
Indigenous reports
Pre-sentencing reports for Indigenous people are called Gladue reports. The name stems from a 1999 Supreme Court of Canada decision which noted the effects of colonialism on Indigenous people and the failures of the court system to address challenges faced by such people.
In accordance with the B.C. First Nations Justice Strategy, the responsibility of preparing the reports was given to the council in 2021.
Carling said the transition from Legal Aid BC to the council doing the reports happened quickly.
She said the demand for the reports has grown consistently since the council took on the responsibility. By the next fiscal year, Carlin said a $500,000 budget shortfall is forecast.
“After 18 months of delivering Gladue services, numerous issues surfaced that led the justice council to undertake a comprehensive service delivery review,” Carling said. “It became apparent that the structure and processes of the Gladue services division inherited from Legal Aid BC were inadequate to meet the increased demand for services, which led to a backlog of unfulfilled report requests.”
She said the highest number legal aid did was 250 a year while the council is getting one request per day.
“We know by anecdote that there are still many Indigenous people in B.C. that are being sentenced to long terms of custody without the benefit of a Gladue report,” Carling told Glacier Media.
Growing demand, she added, suggests the council will need to deliver upwards of 1,000 reports per year in the future.
Now, Carling explained, restructuring is underway “to deliver Gladue services distinct from the Legal Aid BC model in a holistic manner that reflects and respects the cultural needs of Indigenous people in B.C.”
As of Nov. 8, she said, the council has reduced the time it takes to assign a report to a writer to one to two weeks.
“This depends largely on the availability of writers,” she said. “With the migration to a staff model we anticipate decreasing this number to one or two days. Once a new report is assigned to a writer, provided the writer is able to connect and maintain contact with the client, reports are being authored, reviewed and delivered to the requesting party in six to eight weeks.”
Pre-sentencing reports
The BC Prosecution Service has approximately 500 Crown prosecutors and 410 professional staff and managers located across the province.
Spokesperson Dan McLaughlin said sentencing policy indicates that after a finding of guilt or guilty plea, the judge is responsible for crafting and imposing a proportionate and lawful sentence.
“Crown counsel have an important role to play in informing the judge of the relevant circumstances and law, and in advancing a Crown sentencing position that addresses the fundamental purpose and principles of sentencing,” McLaughlin said.
He added BC Corrections is responsible for the preparation of such reports. BC Corrections falls under the Ministry of Public Safety and Solicitor General.
In a statement to Glacier Media, the ministry said the Community Corrections Division of BC Corrections, staffed by about 375 probation officers, is responsible for producing PSRs when requested by the court.
“BC Corrections has not received any indication from the courts or BC Prosecution Service regarding concerns with the timeliness of receiving these reports,” the statement said.
And, the ministry assured, probation officers understand and respect the expectations to meet the requirements of the courts, and as a matter of practice will advise the court in advance on occasions when a delay may be unavoidable.
Such cases would involve an explanation as to why a delay exists such as an individual failing to attend a PSR interview or submit necessary information for the completion of the PSR, the ministry said.
Trial lawyers concerned
Rebecca McConchie is a criminal lawyer and the chair of the Trial Lawyers of BC’s criminal defence committee.
She said the delay in getting Gladue reports is a significant problem.
“The length of the delay varies from case to case, but anecdotally, I’ve heard of delays ranging from six weeks to six months,” McConchie said.
The reports, she said, are a valuable means of ensuring that the sentencing judge has the information they need to craft an appropriate sentence.
“As a result, a delay in getting the report usually means a delay in the sentencing hearing taking place,” she said.
“Delays in the justice system are hard on everyone involved in a case — an accused may have to stay in pre-trial detention longer as a result; a complainant may have to endure a longer wait before they can get some degree of closure.”
The end result, she said, is that the justice system as a whole gets bogged down when cases can’t move forward.
McConchie hopes additional resources will be provided so that this important work can get done on a faster timeline.
