Access to Justice: Gladue reports: We all have role to play | Michelle O’Bonsawin

By Michelle O’Bonsawin

Law360 Canada (September 23, 2020, 1:31 PM EDT) --
Michelle O’Bonsawin
Michelle O’Bonsawin
This column has allowed me to share my perspective on A2J for the past year. It is now time to widen that perspective and so I have decided to invite guest writers — dedicated and innovative A2J actors — to share the column with me from time to time. I am extremely pleased to introduce our first guest, Madam Justice Michelle O'Bonsawin. — Beverley McLachlin

When I was asked by the Right Honourable Beverley McLachlin to write this guest column, I was honoured. I am writing about a subject that is dear to me: the use of Gladue reports in our judicial system. Gladue reports are an important part of access to justice for Indigenous persons. They provide for a more meaningful participation of the Indigenous accused in the sentencing process and as such, provide them with both procedurally and substantively a more significant opportunity to impact the sentence imposed. This should then have a positive impact on the issue of overincarceration of Indigenous persons.

By way of background, Indigenous persons in Canada represent approximately four per cent of the total Canadian population. For such a small percentage, Indigenous persons are dramatically over-represented in the Canadian criminal justice system. Indigenous adults account for one in four admissions to provincial and territorial correctional services. In the federal correctional system, they represent 20 per cent of incarcerated adults. Over-representation is even more pronounced for Indigenous women, who account for 38 per cent of female admissions to provincial and territorial sentenced custody and 32 per cent of federal incarcerations.

The prevalence of crime involving Indigenous persons is attributable to widespread poverty, dislocation, addiction, mental illness and violence within Indigenous communities. The residential school system is one of many sources of intergenerational trauma. The overincarceration of Indigenous persons is likely a product of the legacy of colonialism and systemic racism.

The enactment of Bill C-41 (s. 718.2(e) of the Criminal Code) in 1996 was the culmination of many decades of commissioned reports regarding sentencing and the penitentiary system in Canada. The Gladue principles stemming from s. 718.2(e) of the Criminal Code require sentencing judges to consider (1) the unique systemic or background factors of an Indigenous offender, and (2) the types of sentencing procedures and sanctions that may be appropriate in light of the offender’s Indigenous heritage or connection. In addition, Parliament very recently amended the bail provisions in the Criminal Code by adding s. 493.2, which requires judges pay particular attention to the circumstances of “Aboriginal accused.”

After s. 718.2(e) of the Criminal Code came into force, its precise meaning was unclear. There were no changes in sentencing practices until the Supreme Court of Canada released its decision in R. v. Gladue [1999] 1 S.C.R. 688 in 1999. The Supreme Court described the over-representation of Indigenous persons in the criminal justice system as “a crisis” and “a sad and pressing social problem.” It concluded that, in expressly providing for distinct sentencing treatment of Indigenous offenders in s. 718.2(e), Parliament directed the courts to inquire into the causes of the problem of Indigenous over-representation in the justice system and endeavour to remedy it.

In its decision in R. v. Ipeelee 2012 SCC 13, the Supreme Court acknowledged that, in the decade since R. v. Gladue, the problem of over-representation of Indigenous persons in the criminal justice system continued to worsen. According to the Supreme Court, some of the failure to remedy this problem was attributable to lower courts’ fundamental misunderstanding and misapplication of the reasons in Gladue. The Supreme Court first referred to Gladue reports in this decision. This is a practice that had grown up organically because of the lower courts’ need to have this information.

When I speak about this subject at conferences, I always advise that we all have a role to play in the Gladue process. As a sentencing judge, I am responsible for ensuring that information regarding an Indigenous offender’s unique circumstances is considered. The Crown and defence counsel should adduce evidence in this regard. Counsel have a duty to bring individualized information before the court in every case, unless the offender expressly waives his or her right to have it considered. Where counsel do not provide this evidence, I must attempt to inquire about (1) the offender as an Indigenous person, and (2) any alternatives to incarceration available inside or outside the offender’s community. The Indigenous person should provide information about his or her Indigenous heritage. We must also take judicial notice of the history of colonialism, displacement and residential schools in Canada, and how that history translates into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide and higher levels of incarceration for Indigenous persons.

A Gladue report is not just a sentencing report: it is often the first step in an Indigenous person’s healing. It examines the past and considers the systemic and background factors that may have played a role in bringing the offender before the courts. More specifically, a Gladue report addresses the offender’s micro-circumstances, such as community, family and addiction, in addition to macro-circumstances like colonialism and discrimination. This allows the judge to view the individual’s circumstances in the context of the systemic discrimination that affect Indigenous peoples in Canada.

Even with the Supreme Court’s guidance, we continue to struggle in applying the Gladue principles. We must ask ourselves a series of questions. Are we all properly playing our part in the judicial system? What is the impact on the lack of the appropriate use of Gladue reports? Are there other areas such as in the family law or civil law context that Gladue type reports could be useful?

If we all work together in uniformity, I am hopeful that we can answer these questions that will lead to a better access to justice for Indigenous persons.

Justice Michelle O’Bonsawin is an Abenaki member of the Odanak band and the first Indigenous judge named to the Ontario Superior Court of Justice in Ottawa. Prior to joining the Superior Court of Justice, she was general counsel at the Royal Ottawa Health Care Group and previously counsel at the Canada Post Corporation. She is a frequent guest speaker on issues of mental health law, Gladue principles, labour and privacy law.

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