The NWT Supreme Court’s chief justice says she hopes her court can soon adopt Gladue reports, a type of pre-sentencing report that provides background information about an Indigenous offender.
The 1999 ruling in R v Gladue says judges must take into account the unique circumstances of Indigenous offenders during sentencing – like the impacts of colonization and the residential school system – and consider options other than jail.
Many jurisdictions in Canada now use Gladue reports, a type of pre-sentencing report that provides background information about an Indigenous offender.
Ontario, British Columbia, and Alberta have established Gladue courts that handle sentencing and bail hearings for some Indigenous people charged with crimes. Yukon has trained Gladue report writers.
In the NWT, Gladue reports are not used and the territorial government had previously said it was not considering using them any time soon. Instead, “Gladue factors” are often incorporated into other forms of pre-sentencing report or presented as evidence by defence lawyers during sentencing and bail hearings.
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In the past, at least one judge has stated the NWT’s pre-sentencing reports “compare favourably” to Gladue reports produced elsewhere. But some lawyers maintain that dedicated Gladue reports would do a better job.
John Hale, a criminal lawyer who has practised in Ontario and the NWT, told Cabin Radio in 2022 he had seen first-hand the impact of Gladue reports.
“The Gladue report puts everything in a very different light and leads to a much more humane sentence,” he said at the time.
“They’re really tangible reminders to the rest of us in the justice system, who are predominantly white, coming from middle-class backgrounds or living above or living below, but who can’t really honestly relate to the Indigenous person in court. It fills in a lot of blanks.”
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‘It would be very helpful’
At a press conference on Sunday featuring top judges from several levels of Canada’s justice system, NWT Supreme Court Chief Justice Shannon Smallwood said she hoped Gladue reports will eventually be introduced in the territory.
“We do have pre-sentence reports – which are very detailed, and they do address the Gladue factors – but they don’t replace what I’ve seen from other jurisdictions,” said Smallwood, originally from Fort Good Hope, who became the territory’s first Dene superior court judge when she was appointed to the NWT Supreme Court in 2011. She has been its chief justice since 2022.
“I think that’s something the Supreme Court – I can only speak on behalf of my court – is very interested in pursuing,” she said.
“I know that’s something the Department of Justice has looked into. It hasn’t materialized, but I’m hopeful that that will come to be, because it would be very helpful to the court in sentencing.”
The NWT’s judges are rarely made available for interview.
Smallwood spoke at a briefing for journalists associated with the Supreme Court of Canada’s trip to Yellowknife as part of its 150th anniversary celebrations.
Three Supreme Court of Canada justices, including Chief Justice Richard Wagner, are visiting the city this week. They staged a public forum on Sunday morning and held an event with many of the territory’s lawyers later that day.
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“Part of our presence here in the Northwest Territories is to appreciate and to know more about the reality,” Wagner told reporters.
“We will be visiting Indigenous Elders and we understand that the justice system in Canada – or having access to the traditional justice system – is not very often satisfactory to deal with some situations.
“We have our challenges in Canada. We have our challenges in the Northwest Territories. But we have generally a good system – we have independent judges everywhere, provincial, federal, well trained, governed by ethical principles, which is not the case in many other countries.”
