By Tom Bissett
In my previous post, I discussed some of the lessons I learned while working with clients. But human rights work isn’t just about providing a service for the protection of one’s clients or, more generally, for the direct beneficiaries of one’s work. As human rights workers, we are often asked to work within a rigid framework, to uphold the rules, norms, and procedures of one particular office or institution. This reality can be challenging. After all, one’s institutional duties can sometimes chafe against one’s sense of responsibility to one’s client.
This summer I worked as a Gladue writer. Both throughout my training and as I started to write reports, I was struck by the duality of the role. In principle, Gladue writers work for the courts, ensuring that judges receive the information necessary for them to properly apply the rules on sentencing outlined in the Criminal Code. But Gladue writers also work for their clients, at least in two respects. Firstly, writers have a legal duty to ensure that their client’s rights as ‘Aboriginal offenders’ are protected. Secondly, writers have a duty to work in their clients’ best interests. In contrast to the first, this latter duty is not clearly articulated in the jurisprudence. Such a duty might therefore be better characterized as a moral or professional duty, rather than a legal duty.
As both a servant of the courts and a client, Gladue writers must fulfil two roles that may sometimes pull in different directions. It can be easy, for example, for Gladue writers to place too great an emphasis on defending their client’s interests and to therefore veer away from the standards of impartiality. Indeed, in a recent study, 8% of judges indicated they had received Gladue reports that lacked balance, and 9% noted that they had received reports that engaged in advocacy. As one judge noted, “Often the Gladue reports read more as an advocacy tool than an unbiased assessment.”
On one hand, I understand the cause of their concern. For the criminal justice system to function even minimally, it is vital that the courts be impartial and seen to be so. On the other, I appreciate the pressure that Gladue writers feel to defend their client’s interests, even to the point of advocating on their behalf. After all, writers are confronted with clients who have been systematically denied access to basic social services including healthcare, schooling, housing, and so on. Relatedly, writers are often confronted with clients who do not enjoy any effective right to adequate representation. From this perspective, the tendency for Gladue writers to try and compensate for these shortcomings and to advocate on their client’s behalf is understandable.
My sense is that the challenge of divided loyalties, if it can be so called, is not unique to Gladue writing but is prevalent (perhaps ubiquitous) in the field of human rights. And, for my part, I can’t offer a tidy solution to such a problem. Working in the field of human rights, I think, probably requires that we learn for ourselves how best to navigate such challenges.