Despite a Supreme Court of Canada ruling more than two decades ago that aimed to alleviate the over-representation of Indigenous people in jail, the problem has only intensified.
In the Northwest Territories, where the overwhelming majority of people in jail are Indigenous, there is now debate about how to best address the issue.
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.
In the NWT, Gladue reports are not used and the territorial government says it is 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.
Justice minister RJ Simpson said that while Gladue reports are a “very live issue” in the south, courts in the NWT are more familiar with the history of Indigenous people due to the territory’s high percentage of Indigenous residents. (Roughly half of the territory’s population identifies as Indigenous.)
Yet some lawyers query the territory’s decision not to use Gladue reports.
Kim Arial, a lawyer who practises in Alberta, Ontario, and the NWT, said the lack of Gladue reports in the territory is “disappointing” given the number of out-of-territory judges who oversee NWT cases and may not understand the context of northern communities.
“I was heartbroken and shocked when an out-of-town judge declined my request for a Gladue report and a PSR [pre-sentencing report] the first time I was on circuit in the NWT,” she told Cabin Radio.
Arial believes Gladue reports are important because, while Indigenous people account for a majority of the NWT’s population, sentencing is an individualized process that differs based on each convicted person’s circumstances.
“The Gladue concept almost gets diluted by this thought that, ‘well, there are so many accused who are Indigenous, so why do we need to consider it?’” she said of the NWT’s approach.
John Hale, a criminal lawyer who practises in Ontario and the NWT, said he has seen first-hand the impact that Gladue reports can have.
“The Gladue report puts everything in a very different light and leads to a much more humane sentence,” he said.
“Every time you see one, it’s just a kick in the gut, because you see this litany of horrors that these clients and their families have been through over generations.
“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.”
Advocates for Gladue reports say they differ from regular pre-sentencing reports and play an important role in providing judges meaningful and accurate information about Indigenous offenders.
Gladue reports are written by trained Gladue writers, who are often Indigenous and have connections to an offender’s community, while pre-sentencing reports are written by probation officers.
Gladue reports are also much lengthier than pre-sentencing reports, including more information about an offender’s individual and family history, involvement with social services and the justice system, health, substance use and treatment, education, employment, future plans and goals, and recommendations for sentencing.
Community input in sentencing
Lance McClean, a criminal defence lawyer in Alberta who practises in the NWT, said the use of separate Gladue reports alongside pre-sentencing reports is important in the province as Indigenous people account for a minority of the population and judges may not be familiar with their communities’ histories.
In the NWT, McClean said, pre-sentencing reports do a better job of identifying Gladue factors and the court travels to many communities.
“There is, I would say, overall a greater awareness of the impact of Gladue factors in the North,” McClean said, adding he has found NWT courts more open to non-custodial sentences than those in Alberta.
McClean, however, believes there is room for more community involvement in sentencing for serious crimes in the NWT, particularly regarding restorative justice.
“There does seem to be a certain whiff of colonialism to the approach of flying the judge, prosecutor, defence lawyer – none of whom are from the community, in my case not even from the territory – into a community, proclaiming justice, and leaving,” he said.
“People in those communities are very much likely better situated than we are … to understand the implications of potentially removing somebody who, yes, maybe did commit a very serious crime, but may also have value to the community.”
Longtime northern defence lawyer Peter Harte agreed that the territory has “excellent” pre-sentencing reports but said Gladue reports would be an effective way to place community input before the courts.
He believes the territory should consider using Gladue reports as they are particularly helpful when it comes to non-custodial sentences.
Harte said he and several other northern lawyers have discussed how to address those factors in the absence of Gladue reports.
“The idea is to provide judges with that information so that they’re in a position to take Gladue factors into account to a greater extent than it’s happening now,” he said.
Gladue across the North
Across Canada, there is no uniform funding model or national standard for Gladue reports. As a result, how the Gladue principle is applied varies greatly between provinces and territories.
Like the Northwest Territories, Nunavut does not use Gladue reports. Some legal experts have argued Nunavut courts are effectively Gladue courts, as more than 80 percent of the territory’s population is Inuit.
When a Gladue report was requested in Nunavut for the first time in October 2020, that request was denied by the territory’s top judge. According to the Canadian Press, that refusal came in part because there are no Gladue writers in Nunavut and Chief Justice Neil Sharkey said trained writers in the south would likely not have community connections in the North or experience working in an Inuit context.
Scott Cowan, a criminal defence lawyer who practises in Ontario and the North, said that while courts in Nunavut and the NWT have been resistant to Gladue reports, there have been grassroots efforts by defence lawyers to start developing them anyway. He said he recently received Nunavut legal aid funding to commission a Gladue report from a writer based in BC.
“The courts in the North have the benefit of spending time and living in the communities that gives them what they believe to be insight into these background factors,” he said.
“They may be right about that, but that doesn’t change the fact that having dedicated writers and researchers and correctional workers, to be able to provide up-to-date and culturally sensitive information, is a valuable tool for a court when deciding dispositions.”
Cowan pointed to a 2020 Nunavut Court of Appeal ruling that overturned a decision by Justice Paul Bychok, who deemed the four-year mandatory minimum sentence for a firearm offence unconstitutional for a young, first-time, Inuit offender.
As part of its decision, the three-judge appeal panel questioned Bychok’s finding that Inuit cultural values emphasize restorative justice, citing a lack of evidence about whether the community’s application of Inuit Qaujimajatuqangit would have resulted in a lesser sentence.
Cowan said a Gladue report could have helped bridge that gap.
In the Yukon, dozens of Gladue reports are produced every year and writers are formally trained through the Council of Yukon First Nations’ Gladue report-writing program. The Yukon government began funding the program in 2018 after research found an ad-hoc approach to producing reports was unsustainable.
Laura Hoversland, formerly a senior analyst and justice manager for the Council of Yukon First Nations, is now studying law at the University of Victoria. She has written Gladue reports and helped to create the training program in the Yukon.
“We really wanted to make it Yukon First Nations focused,” she said. “Yukon is very unique. The communities are small and also unique, very different from one another, and we wanted to keep that in mind.”
The National Inquiry on Missing and Murdered Indigenous Women and Girls has called for federal, provincial, and territorial governments to consider Gladue reports as a right, to resource them appropriately, and to create national standards for the reports.
In its fall 2020 economic statement, the Canadian government pledged $49.3 million in funding over five years to “support the implementation of Gladue principles in the mainstream justice system.” That included $3.5 million each year to support provinces and territories with costs associated with Gladue reports.
The NWT Department of Justice recently told Cabin Radio the division of that federal funding among jurisdictions has yet to be determined. Once the territory has “a better understanding of what funding might be available,” the department said, it will consult Indigenous communities about next steps.
The Truth and Reconciliation Commission of Canada, among others, has noted that even if Gladue reports were thoroughly implemented across Canada, they would not do much to address the overrepresentation of Indigenous people without adequate alternatives to imprisonment.
In its final report, the National Inquiry on Missing and Murdered Indigenous Women and Girls – while supportive of Gladue reports – found the Gladue principle had done little to reduce the number of incarcerated Indigenous women in Canada.
In January 2020, Canada’s correctional investigator – Dr Ivan Zinger – said the proportion of Indigenous people in federal prisons had surpassed the 30-percent mark, despite Indigenous people accounting for just five percent of the country’s population.
Dr Zinger said that represented a “deepening Indigenization” of Canada’s correctional system that was “nothing short of a national travesty.”
At the time, data from the NWT Department of Justice showed all women and 83 percent of men incarcerated in the territory were Indigenous.
Caroline Wawzonek, the NWT minister responsible for the status of women and a former criminal defence lawyer, said she is not convinced Gladue reports are the answer to that problem.
Wawzonek pointed to other ways the NWT government plans to address systemic racism in its draft action plan that responds to calls for justice from the National Inquiry into Missing and Murdered Indigenous Women and Girls.
“The national plan found that there was a genocide. We’re being asked to find a way to end it. I’m not sure that there’s one magic thing that will do that, until we have a paradigm shift in how we govern, why we govern, and why we do the things that we do,” Wawzonek told reporters.
“Maybe Gladue reports will be part of that. For now, we’re starting here.”
Austin Corbett, a criminal lawyer practising in Alberta and the NWT, said many sentencing options aren’t being adequately used, calling jail “the bluntest hammer” to deal with many social issues.
“We really need to try to think a little more creatively and imaginatively about how to avoid incarcerating people, considering the rate of incarceration for Aboriginal people has only gone up in the last 15, 20 years,” he said. “What we’re doing right now doesn’t work.”
The NWT government said there are non-custodial sentencing options available in the territory, including community-based initiatives, probation, and conditional sentences – more commonly known as house arrest. The territory also has wellness court and domestic violence treatment option court, which are specialized courts that focus on addressing conditions that may lead to re-offending.
According to the Department of Justice, 710 people have been referred to the domestic violence treatment option court and 181 people have successfully completed programming. Under the supervision of the wellness court, 15 people have successfully completed wellness plans and a total of 74 people have been accepted into the program.
NWT defence lawyer Harte pointed out, however, that there are limited treatment options in the territory and no local treatment centre, an issue hotly debated by politicians.
“There’s a responsibility on the part of government to try to provide alternatives to incarceration,” he said. “In reality, we need to have some sort of trauma-informed treatment available in the NWT.”