The future of justice for Indigenous offenders in the NWT could be shaped by the outcome of a legal fight apparently brewing between a judge and the territory.
If the NWT government refuses to obey a court order to prepare a formal Gladue report for a Behchokǫ̀ man awaiting sentencing, the territory could be held in contempt of court or accused of abuse of process.
Gladue reports – named for Jamie Tanis Gladue, a Cree woman whose case was central to a landmark Supreme Court ruling – are designed to help sentencing judges consider the systemic and background factors of an offender and look at all available options beyond incarceration.
Standard pre-sentence reports, prepared by justice department staff, are not formal Gladue reports. The standard reports, which normally assess the likelihood that someone will reoffend, often carry only a small section dedicated to Gladue “factors.”
On Thursday, NWT Territorial Court Judge Donovan Molloy repeatedly challenged Crown and GNWT lawyers to deny he had the authority to order a Gladue report.
The judge said having the option to order more in-depth research into an Indigenous person’s family and community would be “a matter of some consequence,” which could end up before an appeals court before the matter is settled.
“If it is in my jurisdiction, then it’s up to me to decide whether I order a Gladue report,” Molloy said to justice department lawyer Roger Sheppard, representing Leanne Gardiner, assistant deputy minister for the Solicitor General.
“I ordered a Gladue report … but you tell me the Solicitor General is only going to give me an ordinary PSR [pre-sentence report]? You’re here on behalf of the executive of government. Are you really going to tell me you won’t do it?”
Gesturing towards Joey James Chocolate, who is to be sentenced in May, Molloy said: “How am I supposed to judge him?”
Sheppard said the GNWT did not “take issue with your honour’s authority” but needed to know how Molloy would like the report delivered.
“What I’m struggling with: is it a specific form of report your honour is requesting? Is there a specific format your honour would like to see this report in?”
Molloy said the pre-sentence reports he receives now are “not very helpful” when sentencing a convicted Indigenous person. Written by probation officers, the judge said they aren’t specifically designed to help assess a person’s moral blameworthiness given historical and familial factors in their community.
He said a 10 to 12-page pre-sentence report can include “less than a page” dedicated to Gladue factors.
“I will take that back to my client,” said Sheppard, noting a senior probation officer is working to “flesh out the [Gladue] factors” in the report being prepared for Chocolate.
“There is work being done on this right now. In terms of what actually constitutes a Gladue report, your honour is aware there is no specific program [or writers for them] in the Northwest Territories.”
Context and understanding
As Cabin Radio reported in January, Gladue reports are much lengthier than ordinary pre-sentence reports as they include 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.
“Understanding an Indigenous person’s antecedents – in terms of the family history and the impact of residential schooling – is also understanding traumatic responses and … maybe what I would describe as a lack of faith or a lack of trust in our institutions,” said defence lawyer Peter Adourian.
That comes into play, Adourian said, “when assessing and understanding a person’s reactions to court orders, to persons in authority and contextualizing their responses that maybe are unexpected to caucasian audiences.”
While the full details of his latest offences were not stated, the court heard Chocolate has a “serious and lengthy” criminal record and the Crown plans to seek a sentence of 18 to 20 months for assaulting a peace officer with a weapon or causing bodily harm.
The NWT government has not shown great interest in providing the option of Gladue reports to the courts, although other jurisdictions in Canada – including Ontario, Québec, BC and Yukon – have offered them for some time. The National Inquiry into Missing and Murdered Indigenous Women and Girls called on governments to consider Gladue reports a right and fund them appropriately.
“It’s not about the money,” said Crown prosecutor Billi Wun.
Wun said the process could involve ordering a regular pre-sentence report first and, if that is found lacking, witnesses could be called or a supplementary report demanded.
“I don’t believe I should have to wait to be provided with an insufficient PSR before ordering a Gladue report,” said Judge Molloy.