Indigenous adults and youth continue to receive custodial sentences more frequently than non-Indigenous people in Canada (Statistics Canada 2023a). In 1996, section 718.2(e) was added to the Criminal Code, which introduced 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 clarified that judges need to consider the unique systemic factors which may have played a part in bringing an Indigenous offender before the courts. 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).

This study was undertaken by the Department of Justice Canada to better understand how Gladue reports are being prepared across the country and how they and Gladue principles are being considered by the courts. The study involved an environmental scan of public websites and a review of 530 cases listed in CanLII between 2000 and 2021.

Since the 1999 SCC Gladue decision, a number of court decisions have helped to clarify that Indigenous offenders have the right to have Gladue factors considered in their case, however, they do not have an absolute right to have a Gladue report in all jurisdictions. Courts can use substitutions such as pre-sentence reports (PSRs), oral or written submissions to obtain the required information to make decisions.

Each jurisdiction has its own approach, process, or programs for Gladue reports. In some jurisdictions Indigenous organizations provide the Gladue services, while other jurisdictions have a centralized Gladue report service with a roster of contracted writers. Some of the jurisdictions that do not have a publicly funded Gladue report program, train probation officers to include Gladue factors in PSRs.

Whether a Gladue report is requested by the courts depends on a number of factors including: the availability of resources to prepare Gladue reports; judges deeming them only necessary in exceptional circumstances; perceptions that PSRs, oral or written submissions were sufficient substitutions; concerns over the inconsistency and lack of national standards for Gladue reports and training; or the offender waiving or declining a Gladue report or submission due to either delays in sentencing or reluctance to re-live traumatic events in court.

The review of 530 cases found that there has been a significant increase in the application of Gladue principles in cases involving Indigenous people since 2000. There were 9 cases that referenced Gladue in 2000 compared to 154 cases in 2020. There was also an increase in the use of Gladue reports with 40% of the cases reviewed referencing the reports between 2018 and 2021 compared to only one case in 2010. Although most cases reviewed involved sentencing decisions (for mostly violent offences), there was increased use of Gladue reports in other areas, including bail hearings, long-term and dangerous offender applications, as well as Charter challenges.

Cases where Gladue principles were applied, either by taking judicial notice or considering specific Gladue factors, had an impact on the outcome of the case. In 23% of these cases, the sentences were reduced or varied (e.g., conditional sentences, intermittent sentences, and suspended sentences); there was a stay in the execution of the remaining incarceration period; a reduced length of time for parole eligibility or probation; or bail conditions were varied. In some cases, courts also permitted bail to be granted based on an offender’s Gladue factors. However, in cases where a comprehensive Gladue analysis was undertaken by the court, the availability of programming, proximity of custodial facilities to the offender’s community and the likelihood of rehabilitation and rehabilitative resources were all considered as part of the decision-making process and may have impacted the outcome of the case. If these factors were mitigated, the application of Gladue principles could further help reduce custodial sentences for Indigenous offenders.

Future research could examine what impacts the increase in ongoing support for the implementation of Gladue principles and preparation of Gladue reports, as well as a growing body of case law may have on future court decisions. In addition, it would be beneficial to examine whether there are any differences in how section 718.2(e) and the associated Gladue principles are applied based on the official language used in the case or between Indigenous and non-Indigenous courts in Canada.