Gladue Community Resource Guide for Nova Scotia

What is a Gladue report?

            A Gladue report is a legal document that is made up of information about your life circumstances, family history (inter-generational), community information, and other factors that fall under Gladue considerations. It recognizes special cultural considerations exclusively for Indigenous Peoples.

            This report contains recommendations to the court (the judge, your lawyer, and the Crown attorney) about options that you could benefit from to recognize and help address some of the underlying issues, cultural needs, and historical traumas Indigenous Peoples face. It recognizes the unique history that Indigenous people in Canada have and attempts to highlight the systemic inequality, racism, discrimination they face and address the over-representation of Indigenous Peoples in the Canadian Criminal Justice System. Gladue can be applied at sentencing or a bail hearing, or both.

History of Gladue

            Jamie Gladue was an Indigenous woman of Cree heritage. She was engaged to her fiancé, Reuben Beaver, and was pregnant with their second child. The couple had a history of domestic violence. Beaver had a history of cheating and, on the night in question, Gladue confronted him about it. In a fit of passion, she stabbed him, and he later died from his injuries. At the time of the incident, Gladue was intoxicated and had little recollection of what happened after the fact. She also had an undiagnosed medical condition that impacted her frame of mind during the time of the incident.

            She plead guilty to manslaughter and did not have a criminal record. At the time of sentencing, she was remorseful to Beaver’s family and asked the judge to factor her Indigenous heritage when determining her sentence. The judge determined that, because she lived off-reserve and was disconnected from her community, this was not a relevant factor for consideration. As a result, Gladue appealed her sentence on the grounds that the judge did not take her Indigenous heritage into consideration. Her appeal was dismissed, and it was then brought to be heard in the Supreme Court of Canada. 

The Legal Decision

            Gladue was the first case to challenge section 718.2(e) before the courts. In 1999, the Supreme Court of Canada determined that the lower courts erred (i.e., made a mistake) in not considering Gladue’s Indigenous heritage prior to sentencing. Gladue won her case, and the impacts will continue to influence how courts support Indigenous people. The Supreme Court also recognized the ongoing crisis in Canada with the overincarceration and overrepresentation of Indigenous people in prison and the criminal justice system as a whole. 

Section 718.2 (e)

            In the mid-1990s Parliament recognized the need for change in supporting Indigenous people in the criminal justice system. They wanted to decrease the rates of incarceration. Gladue was the first case to give more detail about how the courts should apply section 718.2(e). Other cases like R v Ipeelee (2012) and R v Wells (2000) have reaffirmed Gladue.

Who does it apply to?

            If you self-identify as Indigenous (First Nations, Métis, Inuit) then you are eligible to have a Gladue report. It does not matter if you live on or off reserve or are full status or non-status. In Nova Scotia, regardless of which Nation you are from, you are entitled to a Gladue report as long as the criminal offence was either committed in Nova Scotia or if the Crown transferred your case to Nova Scotia from another Canadian province or territory (this can only happen after you plead or have been found guilty, so please talk with a lawyer before making any decisions).

Are you in Conflict with the Law?

            Gladue reports are ordered by the court prior to you being sentenced in a criminal court in Nova Scotia. As an Indigenous person, you have a right to a Gladue report and for Gladue factors to be considered during sentencing. For bail, Gladue factors will be considered at the time of your bail hearing. The court may or may not adjourn to gather more Gladue information. You have the choice to waive this right at either stage if you choose.

When Do I Need a Gladue report?

            If you have been found or plead guilty to ANY Criminal Code of Canada offences, you can benefit from having a report. You can also benefit from Gladue factors if you are in custody and awaiting a bail hearing. As an Indigenous person you have a right to access Gladue. You also have the right to waive this right. Please consult with a lawyer before making a decision.

How Can I Get a Gladue report?

STEP 1

            You should self-identify as early as possible in the criminal justice system. Advise your lawyer of this. If you do not have one, make sure the judge is made aware that you are Indigenous. Even before sentencing, there may be other options for you such as the Mi’kmaw Customary Law Program (a traditional form of restorative justice) and other services and programs. If you are in custody, Gladue factors can be used during bail hearing. This is not a full Gladue report, but it does cover the factors listed below to help the bail judge make a determination regarding release.

STEP 2

            If you are in custody, speak with your lawyer or court staff about having Gladue factors considered during your bail hearing.

            If you are at the sentencing stage, ask your lawyer to request a Gladue report to the court. This will be brought before the courts and the judge will have one ordered on your behalf. Gladue reports take time to prepare and will involve you and other people in your life. It can take up to a few months to have a report prepared.

STEP 3

            In order to benefit from either or both sources of Gladue it is key that you share accurate and relevant information to the Gladue writer. Aside from you providing information, the Gladue writer will interview your family, friends, or professionals who have worked with you to gather additional information. 

How Can it Help Me?

           Gladue can help you in a few different ways. It can:

• Help the judge engage with your situation in a holistic and culturally meaningful way

• Help the judge understand the systemic racism and discrimination that affects you

• Help you find/access the supports/services you may need to help you in your healing process

• Help you (and your family) discover history and stories that you didn’t know before

• Help Indigenous Peoples as a nation to break-down stereotypes, forms of racism and discrimination

What are the Risks and Challenges?

            Gladue reports require you to be able to open up about many thing, some of which could be extremely painful or traumatic to talk about again.

            It is important to have supports in place to help you through those feelings. Indigenous Peoples generally have a mistrust of the criminal justice system and may not feel comfortable having others read through their story. Gladue is also not a solution, it is merely a tool to provide information and context. Much of the work to heal or move forward will come from you, your supports, and players in the court. Please talk with your existing supports or, if you do not have any, let the court know and they may be able to find professional supports for you. 

What kind of Information Goes into a Gladue Report?

            Information known as Gladue factors go into a report. The table below gives more detail about the main areas Gladue factors cover. It is important to note, there may be information unique to your situation that can be included in a report. A Gladue report is like a snapshot of your life and life in your family three generations ago. It will have stories of important events in your life.

            The report is laid out in sections. There will be a recommendations page at the end with information the Gladue writer has gathered in terms of resources, recommendations, services, or other contacts that could support you. This will also aid the judge in determining what should and should not be in a sentence. An example of this could be: a recommendation to have access to Elder mentorship with a particular Elder in your area, and/or a recommendation to enter into a culturally appropriate treatment center.

Gladue Factors

Personal information	Name, date of birth, address, contact information, etc.
My community	Community that your family is from, even if you do not live there. Community information such as location, details of major community events, resources, etc.
My family history (three generations)	Family dynamic, stories of growing up, family disconnection, major events, etc.
Socio-economic	Income, poverty, access to financial supports
Addictions	Any addictions you or a family member has or has had, such as a alcoholism, drug use, gambling, shoplifting, or any other addictions. Any past treatment.
Abuse: emotional, sexual, physical, spiritual and verbal	Any abuse you experienced, witnessed, or heard stories about from family. Also applicable to members of your family within three generations.
Family/intimate partner violence	Any violence you experienced, witnessed, or heard stories about in the family. Also applicable to members of your family within three generations.
Health	Any medical conditions you have or that run in your family (e.g., diabetes, depression, etc.)
Any foster care, group home, adoption	Any experience you or a family member had with foster care, adoption, group homes, etc. Also applicable to members of your family within three generations.
Education	Your educational experiences, including your highest level of formal education attained. Education in your family and community.
Employment	Your employment history, experience, potential job opportunities in your community, etc. Also applicable to members of your family within three generations.
Residential school, Indian day school, MMIWG, any other historical traumas from colonization	Any experience you, your family, and/or your community has with residential schools, Indian day schools, missing or murdered Indigenous women, etc.
Past history with the law, if any	Your history in the criminal justice system, criminal record, history as a victim, witness, or accused, experience with racial profiling, etc. Also applicable to members of your family within three generations.
Reflection on incident that you are being sentenced for	Your thoughts on the incident(s) that brought you to be sentenced, such as regret, hurt, numbness, sadness, etc.
Any forms of racism or discrimination, including relocation and loss of status	Any experience you, your family, and/or community have with racism and discrimination, including systemic forms. Relocation, loss of traditional lands, loss of status in the past or present may be considered.

What is the difference between a Gladue report and a pre-sentence report?

            A pre-sentence report is a report applied to all Canadians prior to sentencing in criminal court. It covers some of Gladue factors and can have a small Gladue section. It is typically prepared by a probation officer and interviews take place in their office. It is a document meant to assess the likelihood to reoffend.

            A Gladue report is exclusively for Indigenous people. It is a much more detailed, contextual, and comprehensive legal document than a pre-sentence report. They are approximately 25 to 40 pages in length.

            The Gladue writer is an Indigenous person or someone well-integrated into the community and culture. Gladue writers will travel to the person’s home, visit family members, or involve professionals. They have a more culturally appropriate lens and understand the relevant culture, community, and history. They are trauma-informed and work with you to ensure that talking about such stories is not done in such a way as to cause greater harm. They will work collaboratively with you to tailor your report and find the best possible recommendations to the court. They may even be able to help connect you directly with resources in the community. If you are Indigenous, a Gladue is much more appropriate and helpful in comparison to a pre-sentence report.

Who writes the report and who can help me?

            Gladue reports are written by Gladue writers. They are typically Indigenous or someone who is well integrated into the community and culture. They are trained and prepared to support you during the interview and information gathering process. It is a non-judgmental process and is meant to support you through finding positive and meaningful ways forward.

            In Nova Scotia, the Mi’kmaw Legal Support Network is contracted to produce these reports. See additional information below for contacting them directly.

What can my lawyer do?

            If possible, it is always best if you have legal representation and advice. Your lawyer can give you information about options available to you and should advocate for you and your best interests. 

Short Q&A

Q: Do I have to pay for a Gladue report?

            No, you do not have to pay for a Gladue report in Nova Scotia. The provincial or federal government will pay to produce the report.

Q: How long does it take to get one?

            Typically, a Gladue report can take 6 to 12 weeks to produce. Depending on the individual circumstances of your case, it is possible that it may take shorter or longer to prepare (e.g., the report writer may have a hard time finding you or your support people, or there could be other forms of delays).

Q: Who else will the Gladue writer speak to?

            The report writer will usually speak to an additional three people in your life that can speak to knowledge of you and/or someone who is known in the community and can give unique community context (if there has been some significant events happening in the community, lack of resources, and/or potential services).

Q: Is the information I give confidential?

            In short, yes, the information you provide is confidential. The report writer is bound by confidentiality. The final report is solely for the purposes of sentencing, although, if you will be serving a custodial sentence (i.e., spending time in prison), Corrections may have access to it. It is best to consult with your lawyer to address any concerns you may have regarding this.

Additional Information

Nova Scotia Legal Aid: Tel. 902-420-6578.

The Mi’kmaw Legal Support Network: Tel. 902-379-2042.

Legal Information Society: Tel. 902-455-3135.

Alsusuti Aboriginal Crisis & Counselling Services: Tel. 844-694-1382.

Mi’kmaq Native Friendship Center Halifax: Tel: 902-420-1576.

Native Council of Nova Scotia: Tel: 800-565-4372.

Sources

Legislation and Caselaw:

Criminal Code, RSC 1985, c. C-46, s 718 (e).

R. v. Gladue, [1999] 1 SCR 688.
R v Ipeelee, [2012] SCC 13.R v Wells, [2000] SCC 10.

Other resources:

Customary Law Resource Guide, Mi’kmaw Legal Support Network. 2019.

Gladue Primer, Legal Services Society, 2011. www.legalaid.bc.ca

Gladue Report Guide, Legal Services: https://pubsdb.lss.bc.ca/resources/pdfs/pubs/Gladue-Report- Guide-eng.pdf

Spotlight on Gladue: Challenges, Experiences, and Possibilities in Canada’s Criminal Justice System at: https://www.justice.gc.ca/eng/rp-pr/jr/gladue/p3.html

The Gladue Decision – How can it help me? Resource booklet.