The majority of provinces and territories in Canada don’t have an established Gladue report-writing unit, something the Supreme Court of Canada has called an “indispensable” service for Indigenous offenders.
In fact, just three provinces and territories – British Columbia, the Yukon and Ontario – offer full programs that provide the essential service that gives Indigenous offenders the chance to have their backgrounds taken into consideration in sentencing decisions.
Offenders like Clint Sinclair in Manitoba did not have the benefit of a Gladue report at his sentencing for a previous drug-trafficking conviction in 2016.
His probation officer did a pre-sentence report that is not as detailed as a full Gladue report.
“When it came time for court, the pre-sentence report didn’t really help me a whole lot,” he said. “I still ended up getting sentenced to two-years-less-a-day, which wasn’t a good deal or anything like that.”
Clint Sinclair says he had to arrange his own pre-sentence report. Photo: APTN/Damian Joseph
He said he had to seek out the report on his own.
And the courts seem to agree that pre-sentence reports are not sufficient and can even be culturally biased.
Earlier this year, in R v. Ewert, the Supreme Court of Canada upheld a Federal Court ruling that the risk assessment tests in pre-sentence reports are culturally biased, and subsequently violates s. 24(1) of the Corrections and Conditional Release Act (CCRA).
That section of the CCRA says that “correctional policies, programs and practices must respect cultural differences and be responsive to the special needs of Indigenous peoples.”
“You need somebody with some substantial training in Indigenous histories, in Indigenous communities. The same way that we don’t expect a lawyer who’s trained in criminal law to do family law. There’s specialized training that you need,” said Paula Maurutto, a University of Toronto professor.
She added that probation officers are tasked to simply add a section with Gladue factors like addictions, low education and family violence to a pre-sentence report. She called that a “critical error.”
Paula Maurutto is a sociology professor at the University of Toronto. Photo: APTN/Beverly Andrews
Gladue reports are written summaries that give judges a fuller understanding of an Indigenous offender’s background. They include factors that may play into how an offender arrived before the courts.
The Supreme Court of Canada handed down the landmark R v. Gladue ruling in 1999.
It was established that judges must consider the unique circumstances of Indigenous offenders by opting for alternatives to incarceration. However, the sentence must be reasonable and proportionate to the severity of the offence.
Gladue reports are intended to offer insight that may lead to more rehabilitative sentences and acknowledge the effects of Canada’s colonial legacy on Indigenous offenders.
But even though the Supreme Court ruling has been the law of the land for almost 20 years, Canada has still not developed national standards for preparing Gladue reports, despite the over-representation of Indigenous peoples in the justice system.
Sharon Perrault, programs manager at the John Howard Society of Manitoba, said the organization is looking a developing a Gladue report-writing program.
Sharon Perrault is programs manager at the John Howard Society of Manitoba. Photo: APTN/Jared Delorme
“Particularly in the Prairie region, we have an overrepresentation of Indigenous people and so my hope is that we’re going to gain a better understanding of the population in general,” she said.
“The individual also has an opportunity to gain a better understanding of why they landed up where they landed up.”
It may be too late for Clint Sinclair to benefit but for now, he says he just wants to focus on being a good role model for his son.
“I want to show him that we don’t have to use drugs and we don’t have to use alcohol to be happy,” he said. “We can be good people, we can walk a better path.”