R v GH, 2020 NUCJ 21

The Chief Justice of the Nunavut Court of Justice dismissed an application for a state-funded Gladue report. The Court cautioned that a Gladue report writer from outside the territory may not be adequately familiar with Nunavut’s unique circumstances and resources, and Inuit court workers can provide much of the necessary information, as can the predominately Inuit probation officers working in Nunavut. The Court left it to the Government of Nunavut to determine whether a program for full Gladue reports ought to be created. 

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The Applicant requests that the Court order the production of a Gladue report. He suggests that formal Gladue reports are necessary if this Court is to apply the remedial provisions of section 718.2(e) of the Criminal Code in the manner and spirit directed by the Supreme Court of Canada (R v Gladue, [1999] 2 CNLR 252 [“Gladue”]; R v Ipeelee, [2012] 2 CNLR 218).

In Canada, judges are required to consider the circumstances of Indigenous offenders who are before them to be sentenced. Indigenous offenders have the right (unless it is expressly waived) to the presentation of Gladue information and application of Gladue principles at their sentencing hearing. However, they do not have the right to the production of a publicly funded Gladue report in advance of sentencing.

In many jurisdictions across Canada there are Gladue programs in which independent and knowledgeable writers interview offenders and other community members, producing Gladue reports that educate sentencing judges. Nunavut is not one of those jurisdictions. To date, the Government of Nunavut has not implemented a program to connect Indigenous offenders with knowledgeable Gladue writers. Nothing formally prevents an offender in Nunavut from funding the production of a Gladue report privately, but this almost never occurs due to the associated cost.

Because Nunavut lacks a publicly funded Gladue writing program, Gladue information about Indigenous offenders in Nunavut usually comes before the court via Defence submissions, pre-sentence reports, and occasionally comments directly from offenders. Counsel for the Applicant argues that these sources of information are insufficient and that a Gladue writer would provide a qualitatively superior overview of the systemic factors that have played a role in bringing the offender before the court. Gladue writers are typically either members of the Indigenous communities in which they serve or they have strong social and professional connections to those communities. Because there is no Gladue writing program in Nunavut, there are no Gladue writers here with those same community connections that are so key for southern Gladue writers. Pre-sentence reports, however, are prepared by probation officers, many of them Inuit living in communities in which they serve.

Non-Inuit legal professionals in Nunavut are not without access to knowledgeable cultural and community resources. The Court will leave this discussion to more knowledgeable players within the Legal Services Board of Nunavut and the Government of Nunavut. The Court cautions against the assumption that a Gladue writer experienced in serving First Nations and Métis communities will easily translate those skills to an Inuit context. A pan-Indigenous approach to government programming is ineffective and does not meet the specific needs of Inuit. Recommendation 16.28 of the National Inquiry into Missing and Murdered Indigenous Women and Girls Final Report, notes that this failure to provide Inuit-specific services cripples Gladue principles.

When the Government of Nunavut implements a Gladue report writing program employing empathetic peers based in Nunavut communities as writers, the Court will be pleased to trust those report writers to fully enlighten the court. The colonial court system in Nunavut can only benefit from further and better cultural and historic information about the individuals who appear before it and will continue to rely on the expertise of Indigenous Court Workers, Inuit elders, resident counsel, and resident probation officers.

National Aboriginal Day Celebrations

 BY CHRISTINA GRAY

Photo Credit: Lynda Gray, Ts'msyen Author of First Nations 101.

Photo Credit: Lynda Gray, Ts’msyen author of First Nations 101.

This June 21st, 2016 is significant as it marks 20 years since National Aboriginal Day was instituted as a national holiday in Canada. This is the one day specifically for Aboriginal people (and non-Aboriginal) across Canada to come together and celebrate, share meals, stories, music, and partake in cultural activities ranging from salmon feasts, canoeing to listening to throat singing.

Aside from being National Aboriginal Day, June 21st is also the summer solstice. It’s the longest day of the year and the shortest night of the year. This year we were fortunate enough to see the Strawberry Moon where the moon shone bright pink. It’s naturally a day to spend time in the warmth of the sunshine and celebrate the earth’s rotation in bringing us a renewed wealth of life.

People from all walks of life on June 21st come together to recognize our diverse cultures. In cities it can often feel stifling or invisible to be an Aboriginal person with distinct legal traditions, culture, history, and a distinct past. One that includes a lot of cultural and legal strengths, but that is often fraught with continued difficulties.

This last year the Truth and Reconciliation Commission formally closed in Ottawa with the release of their Final Report and Calls to Action. The closing of the TRC ended their 5-year mandate as part of the “truth telling and reconciliation process” in response to the Indian Residential School legacy.

At the TRC closing there was a lot of good energy shared between people. There was a walk for reconciliation, workshops, musical performances, art exhibits, and informal drumming and dancing that happened in the streets and hotel foyers. That energy will never be forgotten and neither will the residential schools’ dark legacy. This day is part of recognizing the truth-telling that happened through the TRC.

On my way home, I had a conversation with my mom about the good energy that I felt from attending the closing ceremonies. I left Ottawa with a renewed sense of who I am as an Aboriginal person living in a big city. I had time to reflect and find strength from being with survivors and allies. Attending the TRC was truly an internal and external reconciliation with Canada’s residential school legacy.

On June 22nd, there will another opportunity to build relationships, reconcile, and celebrate who we are as Aboriginal people in Canada. Over 300 school children, Aboriginal people, and community members will be doing just that at the Walk for Reconciliation at Saskatoon’s Victoria Park at 10am. This walk is to commemorate the one year that has passed since the TRC’s closing and for people to “rock your roots”. Let’s continue that good energy that was felt at the TRC’s closing and be proud of our distinct heritage, be it Mayan from Oaxaca, Dene, or Cree!

About the Author: Christina Gray is legally trained and works in Publications at the University of Saskatchewan’s College of Law, Native Law Centre of Canada. A first people of the Ts’msyen of Lax Kw’alaams, Dene from Lutsel K’e, and Red River Metis.