Judge rejects request for stand-alone Gladue report

A judge has rejected a request for a stand-alone Gladue report in a Northwest Territories criminal case.

Deputy Judge Vaughn Myers, in a July 2023 decision, denied that a specialized report was needed to provide evidence about Mitchell Wedzin’s unique experiences as an Indigenous offender during sentencing. Myers said a regular pre-sentencing report adequately included that information.

Written reasons for that decision were made public last week.

Wedzin was convicted in June 2023 of assault, forcible confinement, assault while threatening to use a knife, and uttering a threat to cause death in Yellowknife in December 2022. An additional charge of uttering a threat to burn down the victim’s home was stayed.

The defence had requested that the court order a Gladue report – a specialized type of pre-sentencing or bail hearing report that details an Indigenous person’s background. That includes information about the impacts of colonization, intergenerational trauma and racism on the person, their family and community.

Defence counsel Valerie Chiatoh had argued that Gladue report writers receive different training than probation officers, who write regular pre-sentencing reports, and that most pre-sentencing reports in the territory are inadequate.

NWT reports are ‘well written’

Myers, however, said that argument was made before Wedzin’s pre-sentencing report was complete. In his experience, he said, pre-sentencing reports in the NWT “compared favourably” to Gladue reports in Alberta.

“The Northwest Territories reports are well written, well considered and cover the ground covered in those Gladue reports,” he wrote.

Myers said he was “not convinced” the NWT territorial court had the power to order a Gladue report. He noted the Yukon territorial court requests rather than orders such reports.

Myers said even if the NWT court did have that power, a Gladue report was unnecessary in this case. He said one-third of Wedzin’s pre-sentencing report discussed his family circumstances and the report addressed multiple “Gladue factors.”

“I wish to state that this judge’s review is tempered by over 45 years of dealing with Aboriginal people in an almost exclusive criminal practice,” Myers wrote.

“This judge has read scores of Gladue reports along with attending numerous courses and conferences dedicated to Aboriginal offenders, Aboriginal sentences and Aboriginal issues.”

Origins of Gladue reports

Gladue reports are named after a landmark 1999 Supreme Court of Canada decision that requires sentencing judges to consider the systemic and background factors that may have played a role in bringing an Indigenous offender before the court.

Judges must also consider sanctions other than jail, with the aim of addressing the over-representation of Indigenous people in the corrections system.

Another supreme court decision in 2012, R v Ipeelee, reaffirmed that sentencing approach and defence lawyers’ duty to provide that evidence.

That decision stated courts have to consider “the history of colonialism, displacement and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration.”

Myers, in his July 2023 ruling, said that requirement does not automatically reduce an Indigenous offender’s sentence.

“It is also unreasonable to assume that Aboriginal peoples do not believe in the importance of traditional sentencing goals such as deterrence, denunciation and separation,” he wrote.

“Generally, the more violent and serious the crime, the more likely it will be – as a practical matter – that the terms of imprisonment will be close to each other or the same for similar offences and offenders, whether the offender is Aboriginal or non-Aboriginal.”

For all offenders, the criminal code requires judges to consider “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community.”

The criminal code also says “an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances.”

Gladue in the NWT

How the Gladue requirement has been applied in the Canadian court system varies across provinces and territories.

Many jurisdictions use Gladue reports, including the Yukon, which has trained Gladue report writers. Ontario, BC and Alberta have specialized Gladue courts that handle sentencing hearings for some Indigenous people charged with crimes.

Generally, stand-alone Gladue reports are not used in the NWT or Nunavut. Instead, “Gladue factors” are incorporated into regular pre-sentencing reports or otherwise presented as evidence during sentencing and bail hearings.

There has been debate in recent years over whether Gladue reports are needed in the territories.

The NWT government has argued they are unnecessary as a high percentage of the territory’s residents are Indigenous and territorial courts are familiar with the history of Indigenous people.

Last month, Justice David Gates praised a pre-sentencing report prepared for Devon Larabie – whom he sentenced to life imprisonment with no chance of parole for 10 years for second-degree murder – as the “most comprehensive” he had seen in some 40 years. The report had been prepared by a senior probation officer at the territory’s corrections service.

Some lawyers, advocates and even one judge, however, have said Gladue reports are unique and could better assist the NWT court.

Wedzin was ultimately given time served for the charges – he had spent 229 days in jail – with two years’ probation.