As part of my efforts to respond to the Calls to Action listed in the Truth & Reconciliation Commission, I began working with BC First Nations Justice Council in 2021 and am now also writing Gladue Reports. Gladue Reports provide the court with comprehensive information about the unique background factors of the accused, including their community, family life and offering healing and restorative justice plans as an alternative to incarceration. The reports derive their name from the 1999 Supreme Court of Canada case, R v Gladue, [1999] 1 SCR 688.
R v Gladue dealt with the sentence appeal of Jamie Gladue. Ms. Gladue was an Indigenous woman who pled guilty to manslaughter. However, at sentencing, despite advising the court that she was, in fact, Cree, the court found that because she did not reside on a reserve that she did not qualify for the s.718.2(e) sentencing considerations.
The Supreme Court of Canada took the opportunity to discuss the proper interpretation and application of s.718.2(e). The SCC found that this section was meant to be remedial as it was intended to remedy the problem of overincarceration of Indigenous peoples and that it required “judges to undertake the process of sentencing aboriginal offenders differently, in order to endeavor to achieve a truly fit and proper sentence in the particular case” ([1999] 1 S.C.R. 688, para.22)
The Court directed that judges must consider:
a) The unique background and circumstances which may have played a part in bringing the particular aboriginal offender before the courts; and
b) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage and connection ([1999] 1 S.C.R. 688, para.66).
In R. v. Ipeelee, 2012 SCC 13, an Inuit offender was charged with breaching a Long Term Supervision Order under s. 752(1) of the Criminal Code. The SCC took the opportunity to clarify and confirm their directions in Gladue, highlighting that there had been a failure in the application of Gladue factors:
“Over a decade has passed since this Court issued its judgment in Gladue. As the statistics indicate, s. 718.2(e) of the Criminal Code has not had a discernible impact on the overrepresentation of Aboriginal people in the criminal justice system. Granted, the Gladue principles were never expected to provide a panacea. There is some indication, however, from both the academic commentary and the jurisprudence, that the failure can be attributed to some extent to a fundamental misunderstanding and misapplication of both s. 718.2(e) and this Court’s decision in Gladue.” (para.63)
The Court in Ipeelee also stated that the best way for a court to meet the Gladue requirements is through a written Gladue report:
“A Gladue report is an indispensable sentencing tool to be provided at a sentencing hearing for an Aboriginal offender and it is also indispensable to a judge in fulfilling his duties under s.718.2(e) of the Criminal Code.”
In Canada, anyone who self-identifies as First Nations, Metis or Inuit can request a Gladue Report. Lawyers have a duty to bring individual-specific Gladue information before the court, unless the offender expressly waives his right to have it considered. Judges have a duty to apply Gladue factors, irrespective of the age of the accused, the charges they face, or which court they appear in – in any case in which an Indigenous person is facing a possible loss of liberty.
Despite R v Gladue, [1999] 1 SCR 688 being released in 1999, the application of Gladue factors, whose purpose is to correct inequalities, is not applied equally across the country. The courts have been clear that Gladue factors must be considered and if they are not put forward by counsel, this is an automatic right to appeal a sentence. In Canada, it is still appropriate to submit Gladue factors for consideration through oral submissions of counsel. Many jurisdictions also address Gladue factors through having a Gladue component in Pre-Sentence Reports (PSR), however, this content is limited.
There is inconsistent funding and inconsistent infrastructure in place for Gladue reports to be available in every province and territory in Canada. As such, while provinces such as B.C. previously had Gladue report writing funded by Legal Aid and now through the BC First Nations Justice Council, places like Nunavut did not receive their first report until 2021.
I believe that the criminal justice system will be better served and improved if there are more writers available across the country to provide competent and insightful Gladue Reports at sentencing and at other stages of the criminal justice process.
Sehmbi Law 