A B.C. judge says our courts need to deal with non-Indigenous offenders trying to game the system, warning that a ‘tsunami’ of Indigenous identity fraud is coming, driven by convicted criminals seeking smaller sentences.
“A tsunami is coming; driven by the desire of non-Indigenous people to get what they perceive to be the benefits of identifying as Indigenous,” wrote Judge David Patterson in a recent Prince Rupert ruling.
Patterson says Crown and defence came up with an ‘unduly lenient’ joint submission for the former Baptist Associate Pastor Nathan Legault, who was convicted of making and possessing child pornography, based on Legault’s newfound Indigeneity.
Patterson found Legault’s claims of Indigeneity baseless but reluctantly agreed to the joint submission that allowed the 30-year-old man to avoid hard jail time. But not before calling on the courts to deal with non-Indigenous offenders falsely claiming Indigenous identity.
“I am of the view that the only way to give meaning to the Supreme Court of Canada’s teaching…is for judges to be alive to the issue of Indigenous identity fraud and require some proof that satisfies the court that the person being sentenced is entitled to be sentenced as an Indigenous person,” Patterson said as he handed Legault a conditional sentence of two years less a day.
Patterson’s concerns around Indigenous identity fraud arise from a Supreme Court of Canada decision known as Gladue — which requires judges to pay “particular attention” to the circumstances of Indigenous offenders to achieve a “truly fit and proper sentence.”
What is Gladue?
The Gladue principles come from a 1999 Supreme Court of Canada judgement that resulted in a fundamental shift in sentencing that takes into consideration whether or not an offender has been impacted by systemic discrimination.
The purpose of Gladue is to reduce the over-incarceration of Indigenous offenders in Canadian jails. Twenty-five years later, Indigenous over-representation in corrections in the five Canadian provinces in 2020/2021 is still nearly nine times higher than non-Indigenous people.
No fact-checking in B.C. Gladue reports, for now
Despite producing hundreds of Gladue reports for criminal sentencing a month, the BC First Nations Justice Council (BCFNJA) says it has a policy of not fact-checking.
“It’s not really a writer’s job to establish that identity and verify without a doubt that they are Indigenous. Their job is to try to figure out how being Indigenous has affected their life, and that’s how its’ written in Gladue,” said Sayers.
“For most First Nations people, it’s easy. You just have to produce a status card as long as you have one. And so where we get difficult, of course, is with Métis and the definition of Métis,” said Judith Sayers, one of the directors of the BCFNJA, which is in charge of administering and managing Gladue reports in the province.
Sayers does say, however, that they’ve seen “a lot of abuses” and are trying to make changes.
“We’ve just been allowing self-identification, and clearly that hasn’t worked, so we have to come up with guidelines for our writers,” said Sayers.
The tsunami of Indigenous identity fraud is here
Jean Teillet, Métis and a retired lawyer, wrote about Indigenous identity fraud in her report Indigenous Identity Fraud – A Report For The University Of Saskatchewan.
“[Patterson] said that tsunami is coming, I say, ‘Hey, man, it’s already here,'” said Teillet.
Teillet says the Gladue instructions not to question an identity claim are not working and is calling on the justice system to abandon the honour system.
“The courts is where this is strange. The court doesn’t accept anything at face value! You have to have evidence to back everything up except your Indigenous identity claim!” said Teillet.
“It’s the whole thing of who am I to decide whose Indigenous. And I say to you, that’s the wrong question. The question isn’t deciding whether they’re Indigenous, the question is if they’re being honest. And that is the court’s job.”
“Are they telling the truth? And the only other way to know if they’re telling the truth is to see if there is sufficient evidence to support their claim.”
Teillet is calling on judges, lawyers, and the BCFNJA, which is putting together the Gladue reports, to begin fact-checking Indigenous identity claims, such as taking family testimony, looking into birthplaces, and asking the important question of who your people and community are today, to deter fraudsters.
Who is responsible to ensure the truth?
The BCFNJA, which produces Gladue reports, says it doesn’t verify Indigeneity claims. Sayers said, “It’s not our job to.”
BC Prosecution Services, which represents crown prosecutors, says it’s not up to them to fact-check Gladue reports.
“The majority of Gladue reports prepared for BC courts are overseen by the BC First Nations Justice Council’s Gladue Services Department and are intended to provide the Court with information on the offender, their community, and their family,” said Damienne Darby, a spokesperson for the BC Prosecution Service in a statement to CHEK News.
“Questions about this process, including the assessment of someone’s claim to indigeneity, should be directed to the BC First Nations Justice Council.”
The Trial Lawyers Association of BC declined to speak on the matter. The Canadian Judicial Institute didn’t respond before deadline. The Canadian Bar Association said it does not take a position on this but has one professional development session on this topic.
The serious harm of Indigenous identity fraud
If the flow of Indigenous identity fraud within the criminal system is not dammed, Sayers and Teillet say the potential for harm is high.
“It’s probably pretty clear in the criminal world you can get away with this,” said Teillet. “But if you’ve had nothing to do with it except for a grandmama over 100 years ago, why should that entitle you to a sentence reduction?”
The consequences will likely be increased security that will force actual Indigenous people to jump through more hoops to prove their identity. Teillet says Indigenous identity fraud undermines Truth and Reconciliation and the Gladue principles as a whole.
“People in Canada start to go, ‘Oh, they’re playing the Indigenous card,'” said Teillet. “It calls into question the whole idea if we should be doing something to ameliorate Indigenous people, and getting rid of that would be a tragedy.”
Kori Sidaway
