(FINAL) Understanding Gladue Report Use

This past summer I had the opportunity to work in a legal aid environment representing clients. During the course of this work, I assisted a supervising lawyer in a sentencing matter for an Indigenous offender. As part of this, I was presented with reports of many different natures. Some were quite clear in that they related to mental or physical health of the offender. Others were the standard pre-sentence reports done for all criminal offenders. One that stood out from the rest was something lawyers refer to as a Gladue report. These reports are unique for many reasons but primarily because they apply to only one group of people, Indigenous offenders.  

The report draws its name from a 1999 Supreme Court of Canada decision called R. v. Gladue.[1] In the decision, the Court was called on to address how a judge might take into account a person’s Indigenous identity when sentencing them for their crimes. Over the course of the last 20 years since this decision, the established system allows for self-identified Aboriginal People to request a report be given to the court which gives the court important background context they should have prior to rendering a sentence.[2] These contexts might include whether this person comes from a reserve, what life is like within that community, whether they were in foster care, what their family situation might be, and the ways in which their family dynamics intersect with their Indigenous identity.  

If you are a person who has never thought about these sorts of things, this all might seem very vague and non-specific, so let me pause for a moment and give you a hypothetical example of why a Gladue report would be useful. Imagine a young Indigenous teenager is charged with shoplifting and is brought before the court. Their Gladue report might shed light on the set of circumstances unique to them that placed them in that scenario. Maybe they do not have a father figure in their life because he is in prison serving time for unrelated charges. As a result, they have a single mother who struggles with substance abuse to try and cope with her residential school trauma. This substance abuse means there is no food in the house, so they turn to petty theft from the local corner store to try to get something to eat. In sentencing this young person, they are going to get a record which sets them on the same path as their father and places them at risk in the future. In this way, a judge reviewing all these separate points can see how generations of higher levels of incarceration have negatively impacted this youth. The judge can also see the lived trauma of residential schools impacting a person in a real way. In deciding whether this youth gets probation or receives a short sentence in prison, these are very important considerations. Perhaps the judge might see, in light of the context, how this is a relatively trivial matter and use this as an opportunity to break a vicious cycle of oppression.  

Now having said that, you might be thinking something similar to my friends and family when I attempt to explain Gladue reports and their uses to them. Namely, Indigenous offenders can just ask for this report and get less time? How is that fair? What kind of accountability is that? Why should they get preferential treatment just because of their heritage? For some, this is seen as unacceptable. When I had this particular discussion with a family member, a memory stuck out to me where we had once been in the car and pulled over by an officer. My family member was driving and was using the phone to ask where an urgent appointment was located. The officer pulled us over and immediately my family member began trying to explain why they did what they did and the imminent context of the appointment. I bring this up to try to illuminate to them that, when caught committing an offence, nearly everyone wants to provide the ‘why’ of the situation. This is indeed part of the purpose of Gladue reports, but it goes far beyond explaining that Indigenous People are late to an appointment. Instead, Gladue reports offer an attempt to explain how generations of mistreatment, governmental abuse, government neglect, and low socio-economic status can give rise to a situation where some Indigenous People commit crimes.  

The other important context factor I try to explain to people who have a hard time understanding the value of Gladue reports is the extent to which Indigenous People are overrepresented in prison populations in Canada. A CBC article published in December 2021 showed that, of all women incarcerated in Canada, 48% of them are Indigenous.[3] The Government of Canada even lists on its own Department of Justice website that Indigenous People make up 28% of those incarcerated despite only making up 4% of the total Canadian population. [4] This is an astounding number and what is worse is that this proportion has increased over the last ten years, meaning Indigenous People are continuing to be disproportionately represented in the prison population. This is nothing short of an epidemic within our entire justice system. So, to the naysayers I say this: if Gladue reports can help even a modicum in this regard, why would we not use them?  

As a follow up to this I often add that there are new sentencing reports for African Nova Scotians in the wake of the R v. Anderson case.[5] These reports, called Impact of Race and Culture Assessment (IRCA) reports, are used for many of the same purposes as Gladue reports but serve a different group. In the decision, specific attention was given to the history of racism against African Nova Scotians, as well as their overrepresentation in the prison system. The fact remains that there are systemic failures across the country when it comes to the law applying disproportionately to minority peoples of all backgrounds. Canada has a long way to go in amending these systems and ensuring that people from all backgrounds are treated fairly when it comes to hearing the context behind their crimes. The close links between these Gladue reports and IRCA reports is even mentioned in the Anderson decision itself. The decision identifies that, while Gladue report writers come from many backgrounds, the writers for IRCA reports will all be African Nova Scotians themselves who will therefore be able to give even more context to judges who will have to read these reports eventually.  

One further complication that I experienced in my working with a Gladue report for my client was their unwillingness to accept it themselves. This is an aspect many opponents to Gladue reports have not considered. Imagine growing up in a colonial, racist society that has discriminated against your people so strongly that it established schools nation-wide to perpetuate cultural and actual genocide against them. What does that do to your ability to identify with your culture and race? It is something that few Canadians have to contemplate, but that Indigenous Peoples carry with them every day as they move through our society. This is not the stuff of hundreds of years ago either, lest we forget the last residential schools still operated into the 1990s.[6]

So, when I took the time to review my client’s Gladue report and then met with them to discuss how I wanted to use it as part of their sentencing, it was quite shocking to me to hear them say “No, I don’t want to talk about that stuff.” As I thought on it more, it became clear to me that part of their refusal to identify with their Indigenous heritage stemmed in part from their placement in foster care and adoption into a non-Indigenous family. This severing of cultural ties is something the Gladue report discussed but, sadly, would never go before the court. My takeaway was that the racist colonial system had worked once again for this offender because it had so thoroughly stripped them of their culture and heritage that they refused to use it even when it might help them get a lighter sentence.  

In closing, I want to turn back to the idea that there are some who still think this is a ‘get out of jail free card’ of sorts. Part of the purpose of the criminal justice system in Canada is to ensure those who commit crimes are sentenced in a proportional manner. This basic idea gets much more complex when it adds factors like a person’s race and culture. This is what Gladue reports attempt to do. They do not advocate for the dropping of all charges or the proclamation of innocence. They instead explain the nuances and factors that have gone into making the criminal justice system apply unevenly for so long to one group of people. They help an oppressed people tell their story in a way which attempts to explain to judges why it is important they are sentenced appropriately. There are many miles still to trod on the path of reconciliation, but be sure, Gladue reports are most definitely one of the paving stones along the way.  

References

[1] R. v. Gladue, [1999] 1 SCR 688 [Gladue]

[2] Legal Services Society, BC, “What is Gladue”, 2011, online:  <www.nwac.ca/wp-content/uploads/2015/05/What-Is-Gladue.pdf>

[3] Darren Major, “Indigenous women make up almost half the female prison population, ombudsman says” (Dec. 18, 2021) online: CBC News <www.cbc.ca/news/politics/indigenous-women-half-inmate-population-canada 1.6289674#:~:text=Fred%20Thornhill%2FReuters),Indigenous%20women%20now%20account%20for%20almost%20half%20of%20the%20female,cent%20of%20the%20total%20population>

[4] Government of Canada, “Overrepresentation of Indigenous People in the Canadian Criminal Justice System: Causes and Responses” (April 9, 2020) online: <www.justice.gc.ca/eng/rp-pr/jr/oip-cjs/p3.html>

[5] R v Anderson, 2020 NSPC 10 [Anderson]

[6] David Gallant, Tabitha Marshall, “Residential Schools in Canada” (October 5, 2021) online: The Canadian Encyclopedia <www.thecanadianencyclopedia.ca/en/article/residential-schools>