Barriers to justice
Gladue reports underused in Canada's courtrooms
By Lauren McIvor and Crystal Oag
[Photo © Crystal Oag]
Twenty years after the Supreme Court of Canada decision instructing courts to consider Indigenous “circumstances” in the justice process, there has been little headway on the information finding its way into courtrooms across the country.
The Gladue decision, as it is called, gave rise to Gladue reports, which are meant to offer an extensive historical and personal story of an Indigenous person’s experience to give context about how he or she became involved in the justice system. The reports are most often used at sentencing and bail hearings.
“Gladue reports are only worth the paper they’re written on if we don’t have the resources available to frame a good healing plan or a healing journey for the individual,” says Mark Marsolais-Nahwegahbow, founder of IndiGenius & Associates, an Indigenous consulting firm in Ottawa that provides Gladue reports and other services.
Marsolais-Nahwegahbow says the most important thing for people to understand is that these reports are self-reflective.
“For some of them, they haven’t been able to be heard in their life and these reports basically allow them an opportunity to see who they are as an individual, what people say about them and where they should be going,” he says, “more or less like a road map for the individual.”
Gladue reports are not nearly as accessible as they should be, says Carleton University law professor Jane Dickson, a former Gladue writer that now teaches others how to write reports. For the most part, she says, Canadian courts have been slow to properly include Gladue reports.
Barriers exist across all provinces and territories, which can be attributed to such factors as pushback from Crown lawyers, the views of judges, the lack of training of Gladue writers and a funding shortage to hire more of them, she says.
“The way we’ve chosen to allocate resources and the ways we have chosen to support Gladue are not leading to positive outcomes,” says Dickson.
Most funding for Gladue reports comes from provincial governments through Legal Aid. But funding varies, based on jurisdiction, which means uneven access.
“These reports have to be paid for. So, what they did is they more or less allowed Legal Aid Ontario, or Legal Aid across Canada to be the gatekeepers of making those decisions on who is eligible for reports,” says Marsolais-Nahwegahbow.
In Ontario, someone can only get a Gladue report if the charges will bring on more than 90 days in jail. After that, a person can either pay for the writer out of pocket, or if they qualify, have Legal Aid Ontario cover the costs.
Across Canada, Gladue report costs can vary depending on where one lives and whether they are done publicly or privately.
“I charge around $5,000 for a report, but that includes the cost of me travelling across the province and other expenses. We also usually pay an editor around $500,” says Christine Goodwin, who, until recently, was the only Gladue writer in Saskatchewan. “I only keep about $2500. These reports can over six weeks to write.
Goodwin adds, however, that she has heard of a report costing as much as $8,000 to be done privately “because a court refused to pay.”
Marsolais-Nahwegahbow says the federal government should be paying for Gladue reports in all cases dealing with Indigenous persons to allow for more accessibility.
“It is a federal responsibility,” says Marsolais-Nahwegahbow, “Court services ideally should be responsible for paying for all of these reports in every single province in Canada.”
Marsolais-Nahwegahbow says in Kingston, Ont., there is a local protocol for Gladue report costs to be covered by federal court services. Although this is an ideal situation, it has not been done in most jurisdictions, he says.
There is little data detailing availability in each province and territory, particularly in the jurisdictions that do not have formal Gladue programs or services.
Many of the provinces and territories, says Dickson, have made little progress in the 20 years since the Gladue decision.
“We’re going to have to manage the fact that there are jurisdictions with highly stretched resources and they are going to face pretty significant challenges,” she says.
In some provinces, however, there has been movement in recent years. British Columbia and Yukon have taken clear steps to increase funding for Gladue services. Last year, Yukon launched a pilot project to teach writers in the area how produce quality Gladue reports. This pilot project, said Dickson, is a step towards the professionalization of Gladue writers.
Mitch Walker, Gladue writer and co-founder of the Gladue Writers Society of British Columbia, says more funding has been made available in the province, which allows for greater access to Gladue reports.
Gladue reports in Alberta, similar to B.C., are administered primarily by the provincial government. According to Alberta’s Ministry of Justice and Solicitor General annual report for 2017-18, Gladue reports were first introduced to the courts in 2014. Since then, requests have steadily increased.
Alberta Justice deals with the Gladue reports by hiring contract writers, said Gladue writer Jackson Mirasty. He said when he first started writing, the program only produced a couple reports a year. He said that number has risen to more than 700 in 2018. Access, however, can depend on where a person lives.
“There’s people that don’t get it because location-wise they are just too far from a population centre to be near a Gladue report writer, and the writers that we do have in rural communities are few and far between,” says Mirasty.
While Alberta, Ontario and B.C. have established Gladue programs, some provinces and territories include Gladue content in pre-sentence reports, which offer the courts insight into the lives and criminal history of an individual, regardless of whether he or she is Indigenous. Walker says it is almost impossible to get all Gladue content into these reports.
“My view of the pre-sentence report with a Gladue component is that it’s piecemeal in the sense that what it’s trying to do is to fulfill its obligation to the Supreme Court of Canada decision, but it doesn’t actually incorporate Gladue principles,” says Walker.
In jurisdictions such as Newfoundland and Labrador, which has little funding for Gladue reports, pre-sentence reports are the only way to get Gladue content in front of judges, Dickson says.
Mirasty says there is a bigger structural problem that is plaguing the incorporation of Gladue reports. In some cases, people waive their rights to one, or just do not get offered one.
“I’m sure there’s some lawyers out there who don’t even mention it,” he says. “Or judges that will allow it to be swept under the table as much as they’re allowed to, just because the process, it takes time. It takes time to get it ordered, it takes time to get it written.”
Since the Gladue decision, Indigenous incarceration rates have been rising. Statistics Canada reported last year that Indigenous people account for 27 per cent of all inmates in federal prisons, but just five per cent of the Canadian population.
Gladue “was never supposed to be that silver bullet,” says Mirasty. It was “a step in the right direction, at least in terms of recognizing the historic trauma and that Canada’s colonial history persists into the future. It didn’t go away.” But Gladue still fails to address the underlying circumstances of criminality, including poverty, addiction, and emotional trauma, he says.
Walker agrees Gladue reports are only one tool in changing the Indigenous experience with the justice system.
“Until we are able to use the infrastructure of the criminal justice system to hand back power to the individual Indigenous communities, that the criminal justice system operates within, then no genuine change will occur,” he says.
With files from Mitchell Kedrosky
Mi’kmaw Legal Support Services in Nova Scotia is not mentioned in this report or the the trial council of MCPEI. Both agencies provide Gladue reports. MLSN has been writing Gladue reports for approximately 10 years.