970 words; 4 minutes to read.
Audio summary by volunteer Hannah Lee.
The enormous over-representation of Indigenous people in Canada’s courts and prisons is well known.
As one way of dealing with this problem, the Supreme Court of Canada, in 1999, issued a ruling in a case called Gladue, that called for courts and judges to consider ‘The unique systemic or background factors which may have played a part in bringing the particular [A]boriginal offender before the courts; and 2) The types of sentencing procedures and sanctions which may be appropriate in the circumstances of the offender because of his or her particular [A]boriginal heritage or connection.’
As noted in the report on which this post is based, ‘The Court made it clear that sentencing judges must take judicial notice of the systemic or background factors Indigenous peoples face in general and follow the two-pronged approach to sentencing Indigenous people in all future cases. It also anticipated a need for further evidence of an Indigenous individual’s circumstances in order for sentencing judges to fulfill their obligation’.
As a result of this decision, courts began to receive, as part of the disposition of cases involving Indigenous people, reports on those circumstances, now referred to as ‘Gladue reports’. How effective has this provision been, considering that Indigenous numbers in our prisons keep rising?
Benjamin Ralston is a lawyer and law professor in Saskatchewan who has written extensively about Gladue reports in the province that has one of the highest proportions of Indigenous people in Canada, a province where the vast majority of prisoners are Indigenous. In 2020 the Indigenous Law Centre at The University of Saskatchewan released a report he authored for the ‘Gladue Awareness Project’ on the use of Gladue reports in Saskatchewan and more broadly.
The bottom line is that this process is still far from achieving the results the Supreme Court laid out more than 20 years ago. There has never been a proper implementation strategy for this new requirement, so it is not surprising that the practice is very hit and miss.
Reports not done or poor quality
First, even 20 years later many cases with Indigenous accused do not involve a Gladue report. ‘Gladue reports are rarely used and difficult to access in several areas of Canada. Remarkably, this includes many provinces and territories that are home to comparatively large overall proportions of Indigenous residents, such as Manitoba…Saskatchewan…’ and the Territories.’ In Saskatchewan from 1999 to 2014 nearly half of Aboriginal defendants did not get a Gladue report at all!
Second, there is no common standard or even basic agreement on what should be in such reports. The potential range of matters that might be relevant to an individual’s sentencing is vast. The Ralston report provides a long list, including poverty, residential school effects, experiences of racism, spiritual practices, remoteness, the child welfare system, and many more. How many of these this should be investigated in any given case, and in what depth?
For example, many Indigenous people suffer from the legacy of residential schools attended by their parents or grandparents. Is it sufficient to say that an accused’s parent was in residential school? Or does a judge need to know a lot more about the nature of that experience for the accused and family members? And with what degree of verification?
Who prepares them? Who pays for them?
Then there is the issue of capacity to prepare proper Gladue reports. Many lawyers, though aware of the provision, do not have very much knowledge about what such reports might be, or how they might function, so are not able to advise their clients or the court properly on the options.
Who will write, and who will pay for the preparation of Gladue reports is yet another issue. It takes a considerable degree of expertise to understand all the factors involved and presumably a considerable amount of time from an reasonably expert person to delve into the circumstances of any given accused person. Yet in most provinces there are very few people able to do the reports, and often very little funding for them.
‘A 2015 study of Gladue report programs across Canada found that these specialized reports cost an average of approximately $2,300 each to produce.’ Report writers in several provinces were paid significantly less than that. It is hardly conceivable that a thorough report addressing all the issues could be produced for that amount of money, especially in comparison to what other court reports by experts cost.
It is no surprise, then, that Ralston’s report concludes that ‘ The most consistently flagged issue in Saskatchewan’s Gladue jurisprudence over the last few years appears to be persistent concerns with the quality of Gladue information and submissions judges are provided with.’
May not have desired effects
Even when Gladue reports are available, they may not have the anticipated effect., ‘Saskatchewan courts have also been imposing a challenging burden of proof on Indigenous defendants to “show that [their] personal circumstances or historical factors are relevant to the gravity of the offence’. This would seem in direct contradiction to what the Supreme Court said in the decision.
Yet another problem is that the community services envisaged by the Gladue decision to provide alternatives to incarceration often do not exist, or are not available to the accused. ‘Studies have also identified barriers to the effective implementation of the Gladue decision even where Gladue reports are more readily available due to a lack of follow up mechanisms for the alternatives to incarceration they propose.’
Supreme Court intention not realized
The bottom line may be this: 20 years after a Supreme Court of Canada decision, reaffirmed in several subsequent cases, with the clear intention of addressing the huge numbers of Indigenous people in Canadian prisons, the situation is worse, not better. However good the intentions of those involved, this cannot be considered a good, or even an acceptable outcome.