By Christopher Little
In 1998, Parliament added section 718.2(e) to the Criminal Code. This provision stated, quite simply, that at sentencing, judges 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 should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.[1]
In requiring that judges consider alternatives to incarceration, Parliament was taking aim at the disproportionately high incarceration rate of aboriginal offenders. As then Minister of Justice Allan Rock noted before the Standing Committee on Justice and Legal Affairs:
The reason we referred specifically there to aboriginal persons is that they are sadly overrepresented in the prison populations of Canada… Nationally aboriginal persons represent about 2% of Canada’s population, but they represent 10.6% of persons in prison. Obviously there’s a problem here… What we’re trying to do, particularly having regard to the initiatives in the aboriginal communities to achieve community justice, is to encourage the courts to look at alternatives where it’s consistent with the protection of the public—alternatives to jail—and not simply resort to the easy answer in every case.[2]
While the legislative objectives seemed simple enough, their implementation would be more complex. Indeed, Parliament did not articulate what alternatives ought to be considered and how this information was to be made available to judges. Instead, interpretation fell partially to the Supreme Court of Canada in R v Gladue (1999), in which the court considered the case of Jamie Gladue, a young aboriginal woman living off reserve who appealed her sentence for manslaughter because the judge did not consider s. 718.2(e). In their decision, the Court held that 718.2(e) was both remedial in nature, designed to rectify the overrepresentation of aboriginals in prison, and that it therefore applied broadly to all aboriginal persons.
Following the case, the information that was to be brought to the Court came to be referred to as “Gladue factors” and the vehicle that presented this information came to be known as a “Gladue report.” Gladue reports are thus a form of pre-sentencing report discussing an offender’s life and community history, as well as alternative sentencing options other than imprisonment that a judge may consider.
Conflicts and Confusion over Gladue
Before and during my placement as a Gladue Writer with the Department of Justice and Correctional Services of the Cree Nation Government, I had the opportunity to complete Gladue training and speak with many people who write Gladue reports. What became clear to me was that there is still little consensus surrounding Gladue reports.
For example, Gladue information may be presented to a court in various forms. In Quebec, Gladue reports are standalone documents that may exceed 10,000 words and are prepared by specialist “Gladue writers” who spent many hours conducting interviews and historical research. In contrast, in the Northwest Territories, as an example, Gladue reports are not even written. Instead, regular pre-sentencing reports that are written by probation officers—whose primary concern is risk assessment—contain a brief “Gladue paragraph” that is supposed to discuss an offender’s life history and community information.
Likewise, while there is a consensus that Gladue factors are to be considered at sentencing, uncertainty surrounds whether these principals apply at other occasions when aboriginal offenders are faced with the deprivation of their liberty. For instance, in Ontario, courts have held that Gladue principals apply at bail hearings, while a more recent decision from Nunavut has held that Gladue does not apply at such hearings.[3]
Finally, there is much divergence between writers themselves. For example, while some Gladue writers see themselves as “neutral” or at least impartial and disinterested parties who merely compile information for the courts, others understand themselves as working on behalf of the offender to “help” them. Likewise, among writers there are many disputes concerning how Gladue reports should be compiled and by whom. Some writers, for instance, insist upon the use of recording devices to better convey the offender’s story to a court, while others believe that the use of recorders creates a barrier that will prevent the offender from speaking openly. Likewise, while some give offenders the chance to review their reports before they are sent off, others insist that this is counter-productive and may not feasible given tight deadlines. Finally, some suggest that the perspective of victims should, when possible, be included in the report while others suggest that sentencing is entirely about the offender and victims can bring their own information to the Court through a victim impact statement.
The confusion surrounding Gladue is also evident in the final report of the National Inquiry into Missing and Murdered Indigenous Women and Girls. The report makes many recommendations, some of which pertain to Gladue. For instance, the commissioners appear to recognize the importance of Gladue reports when they call for governments to adequately fund Gladue and to create national standards for what is to be included in the reports. However, commissioners also call for the government to evaluate sentencing equity as it relates to violence against Indigenous women and girls, reflecting the view that, in the words of commissioner Qajaq Robinson, that Gladue reports offer a “get out of jail free card” and release potentially dangerous offenders back into the community.[4]
Toward Standarization?
These differences reflect the fact that despite having been in existence for some 20-years, there are no guidelines for writing Gladue reports. Instead, over the years, various practitioners began writing Gladue reports, learning largely through trial and error, and have now created Gladue courses to train other writers, who take their version of what a Gladue report should be, across the country. Such an approach has, in effect, institutionalized discrepancies in reports across the country. In turn, this has led to disputes about “best practices” and battles over standardization, between practitioners who have honed their practice in different contexts: some in aboriginal communities, others in urban environments, some coming from academic backgrounds, other from practice-oriented fields such as mediation.
The ambiguity surrounding Gladue, however, is likely to be the subject of increasing attention over the next several years. Aboriginal overrepresentation in prisons has continued to increase, the various inconsistencies in Gladue are receiving attention across, and the MMIWG report has brought Gladue into the mainstream.
[1] R.S.C. 1985, c. C-46.
[2] House of Commons, Standing Committee on Justice and Legal Affairs, Minutes of
Proceedings and Evidence, no. 62 (November 17, 1994), at page 62.
[3] R v Robinson, 2009 ONCA 205; R v Jaypoody, 2018 NUCJ 36.
[4] Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls at page 185; Kim Beaudoin. Fair Access to Justice Must be for all Indigenous People. The Globe and Mail, 3 July, 2019.