Since the 1970’s, the overrepresentation of Indigenous people in Canada’s correctional system has been a critical concern and has been documented through numerous government and academic studies. Despite legislative, policy and programmatic efforts to address the issue of overrepresentation, Indigenous adults and youth continue to receive custodial sentences more frequently than non-Indigenous people. In 2021/2022, although Indigenous adults represented 5% of the adult Canadian population, they accounted for 31% of all adult provincial and territorial custodial admissions and 33% of all federal custodial admissions. The situation was worse for Indigenous women, who accounted for 43% of all women admitted to provincial and territorial custody, and 51% of all women admitted to federal custody. In the same year, Indigenous youth accounted for 48% of provincial and territorial custodial admissions, while representing only 8% of the youth population in Canada (Statistics Canada 2023a; Statistics Canada 2023b).

In 1996, section 718.2(e) was added to the Criminal Code, as part of significant reforms to sentencing provisions. It requiredjudges to consider “all available sanctions other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders” when sentencing. This provisionintroduced the principle of restraint in the use of imprisonment during sentencing with particular attention to the circumstances of Indigenous offenders (Department of Justice Canada 2017a).

The Supreme Court of Canada (SCC), in 1999, first interpreted section 718.2(e) in R v Gladue.⁠ Through this case, the SCC aimed to establish “a framework” for judges to use when sentencing Indigenous offenders and clarified that judges need to consider the unique systemic factors which may have played a part in bringing an Indigenous offender before the courts. The decision also clarified that section 718.2(e) “applies to all aboriginal persons wherever they reside, whether on- or off-reserve, in a large city or a rural area. In defining the relevant aboriginal community for the purpose of achieving an effective sentence, the term “community” must be defined broadly.” This expanded the definition of communities and networks of support, so that the section is applicable to all Indigenous offenders regardless of where they reside.

To support courts in applying what are now considered Gladue sentencing principles in their decision-making, judges require relevant information about the Indigenous offender before the court. This information can be provided through comprehensive Gladue reports, which include information about an Indigenous person’s background and experiences with colonization, intergenerational trauma, racism, and discrimination (Aboriginal Legal Services 2022). Gladue reports take considerable time and cost to prepare due to the extensive research required to gather the information and write the report.

In 2017, the Department of Justice Canada undertook a study, “Spotlight on Gladue: Challenges, Experiences, and Possibilities in Canada’s Criminal Justice System”(Department of Justice Canada 2017a), to examine the implications of the1999 Gladue decision and subsequent court decisions on the Canadian criminal justice system. This involved a statistical overview of the overrepresentation of Indigenous people in the correctional system, a literature review, a description of justice system initiatives and programs put in place to support the application of section 718.2(e), along with a summary of research on the experiences of the courts and Indigenous offenders with these initiatives.

Since this 2017 study, there have been further investments to support the preparation of Gladue reports and a growing body of case law that has interpreted section 718.2(e). This current study was undertaken by the Department of Justice to better understand how Gladue reports are being prepared across the country and how they and Gladue principles are being considered by the courts.