This summer, I am doing an internship at the Cree Nation Government, Department of Justice and Correctional Services. I completed training to be certified as a Gladue writer, and as of last week, I submitted my first Gladue report to the courts. Gladue reports were created in response to the Supreme Court of Canada’s 1999 decision R v Gladue, in which the Court recognized the over-incarceration of Indigenous peoples in the Canadian criminal legal system and called on judges to consider the unique circumstances of Indigenous peoples during sentencing.1 Gladue reports are a form of pre-sentence report prepared for an Indigenous person to provide the court with information about their life and background, the way in which colonialism has affected them, and what community-based and non-custodial sentences are available. The process of writing a Gladue report takes between 40 to 60 hours, and requires extensive interviews with the person being sentenced, as well as their family, friends and community-members.2 For more information on Gladue reports, see Tim Parr’s Blog post from 2021: Some Thoughts On Gladue.
Being a Gladue writer is challenging. On an emotional level, it is difficult to speak with people at length about the trauma they have experienced throughout their life, and to hear them reflect on the harm they may have caused others. Beyond this, it is also difficult to grapple with what it means to be a Gladue writer, working within a criminal legal system that itself creates and perpetuates so much harm and trauma, particularly for Indigenous peoples. Gladue writers must reckon with the fact that Gladue reports have been largely unsuccessful in their purported goal, which was to respond to the mass-incarceration of Indigenous peoples. Since the inception of Gladue reports in 1999, incarceration rates of Indigenous peoples have continued to steadily rise: today, Indigenous peoples make up 28 percent of all those federally incarcerated in Canada, despite making up only 5 percent of the general population.3 This disparity is gendered, with Indigenous women making up 50 percent of all federally incarcerated women in Canada.4
Gladue reports are limited in their ability to meaningfully address the incarceration rates of Indigenous peoples due to many inter-related factors, including a lack of Gladue writers, resistance from sentencing judges, the existence of mandatory minimum sentences, and a lack of funding given to community-based sentences. In analyzing 635 sentencing decisions of Indigenous peoples between 2012 and 2015, Denis-Boileau and Sylvestre found that only 35.6 percent of cases referenced a Gladue report, with large geographical variations.5 The authors found that sentencing judges are resistant towards considering Gladue principles, and at times have a “certain level of ignorance”6 with regards to Gladue. Even when judges do consider Gladue factors, mandatory minimum sentences and restrictions on the use of conditional sentences makes it at times impossible for judges to consider non-custodial options.7 In a more recent study, Oudshoorn interviewed 12 sentencing judges and 9 Gladue writers in Canada and found that while Gladue reports are a tool to humanize individuals who are being sentenced, the Canadian legal system continues to prioritize custodial sentences and under-funds community-based alternatives.8 Many Indigenous peoples awaiting sentencing do not have access to a Gladue writer, and even if they do, there is often a lack of community-based programs available for Gladue writers to recommend.
Through my work this summer, I have observed the ways in which Gladue reports are systemically constrained. The first report I was assigned to write was for a sentencing hearing regarding offences that took place almost three years ago. By the time the client was assigned to me, he had been waiting for a Gladue report for over six months. During this time, he was charged with a new offence, for which he is currently incarcerated. My role was to write the Gladue report for the older offences, without considering the new and unrelated offence he has most recently been charged with. This presented difficulties, however. While the report I was writing was for offences that do not carry mandatory minimum sentences, the new offence he is charged with does. I thus found myself writing a report that could potentially become moot, if the client is found guilty of the new offence. How can I meaningfully recommend that this person receive a community-based sentence for old offences to the same court that is now holding him incarcerated for a new offence, which may lead to a mandatory minimum sentence? What’s more, some community-based programs do not accept people with outstanding charges, likely due to a lack of funding that limits the spots available. There is thus more than one systemic barrier that prevents this client from benefitting as much as possible from a Gladue report.
Despite these challenges, the most meaningful impacts of Gladue reports are observed, in my opinion, on an individual level. At their best, Gladue reports can divert someone away from incarceration, allowing them to participate in community-based alternatives tailored to their needs, such as land-based healing programs. They are also one of the few tools that exist within the Canadian criminal legal system today that centre on the Indigenous person’s voice and story. While a Gladue writer’s job is, technically speaking, to write Gladue reports, it is really the client and their community members who write the report, collectively. The majority of the text in a Gladue report is made up with long, block-quotations taken verbatim from interviews. The Gladue writer’s job is to piece together these quotations into a cohesive story in an attempt to show the court how the individual ended up before them. In this way, Gladue reports can provide a voice to people within a criminal legal system that is so often oppressive and silencing.
While Gladue reports can be a meaningful and humanizing tool, I am trying to be cognizant of the ways in which Gladue reports are not a long-term solution to the over-incarceration of Indigenous peoples in the Canadian criminal legal system. By treating the mass incarceration of Indigenous peoples as an individual problem to be addressed at sentencing, Gladue reports de-responsibilize the Canadian state from addressing systemic problems, such as higher rates of poverty, substance use and victimization within Indigenous communities, which are a direct result of settler colonial policies such as the Residential School System.9 In this way, some argue that Gladue reports are a “reformist reform,” working within the criminal legal system to “entrench the status quo,”10 as opposed to an “abolitionist reform,” which would strive “for a new horizon, not constrained by oppressive ideologies and systems.”11 As a Gladue writer, I think it’s important to keep this distinction in mind and be aware of how Gladue reports may function to lend legitimacy to the Canadian criminal legal system as it currently exists, which continues to disproportionately criminalize and incarcerate Indigenous peoples.
Despite grappling with the systemic limitations of Gladue, I am deeply appreciative of the opportunity that this internship has given me to become a Gladue writer and to learn from people at the Cree Nation Government. I am very grateful to be able to speak with and learn from people who are directly involved in the criminal legal system, working towards their best interests even if in a limited capacity.
- R v Gladue, [1999] 1 SCR 688 [Gladue]. ↩︎
- Department of Justice and Correctional Services, “Gladue Reports” (2024), online: Cree Nation Government, <https://www.creejustice.ca/index.php/ca/community-justice/gladue-reports>. ↩︎
- Public Safety Canada, “Parliamentary Committee Notes: Overrepresentation (Indigenous Offenders)” (2023), online: Government of Canada, <https://www.publicsafety.gc.ca/cnt/trnsprnc/brfng-mtrls/prlmntry-bndrs/20230720/12-en.aspx>. ↩︎
- Ibid. ↩︎
- Marie-Andree Denis-Boileau & Marie-Eve Sylvestre, “IPEELEE and the Duty to Resist” (2018) 51:2 UBC L Rev 548 at 587. ↩︎
- Ibid at 562. ↩︎
- Ibid at 586. ↩︎
- Judah Oudshoorn, “Theorizing a way out of reformist reforms: Gladue reports and penal abolition” (2024) 26:2 Punishment & Society 243 at 248 ↩︎
- Summary of the Final Report of the Truth and Reconciliation Commission of Canada (2015), online: <https://ehprnh2mwo3.exactdn.com/wp-content/uploads/2021/01/Executive_Summary_English_Web.pdf>. ↩︎
- Oudshoorn, supra note 8 at 244. ↩︎
- Ibid. ↩︎