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This study involved an environmental scan and a case law review, which expands on an initial review of case law undertaken by Justice Canada in 2019. The environmental scan was conducted between June and July 2023 to identify individuals, organizations and institutions that provide Gladue report writing services or report writing training. Publicly available Canadian websites were searched, including those for provincial and territorial governments, post-secondary institutions, legal aid programs, Indigenous courtwork programs, and friendship centres. The term “Gladue” was used to search these websites followed by a general search using Google for “Gladue report [province/territory name].” Throughout the scan, when additional sources were identified (e.g., LinkedIn), they were also reviewed. Organizations that provide Gladue report writing and training programs were identified and key information about the programs was collected. This included contact information, program description, program costs, and whether the organization, company or trainers identify as Indigenous. Additionally, for the training programs, information was collected on whether the trainees can obtain a “certification,” and if so, by whom and with what credentials. The initial 2019 case law review (cases from 2000, 2010 and 2018) was expanded to include all English language cases in CanLII between January 1, 2019, and September 30, 2021 that used the term “Gladue” (excluding administrative tribunals). Only English language cases were included in the review and only cases from Gladue or Indigenous courts were included if the court is linked to a provincial court and was registered in the CanLII system.
Figure 1: Number of cases reviewed and Gladue reports referenced by jurisdiction between 2000 and 2021.
A vertical bar graph of Canadian jurisdictions representing a comparison of the total number of cases reviewed and the total number of Gladue reports referenced in cases within the study period between 2000 and 2021. There are two bars for each jurisdiction. The green is for the total number cases reviewed and the blue is for the total number of Gladue reports referenced. The first jurisdiction is British Columbia. The first bar is green and indicates 128 cases and the second bar is blue and indicates 58 Gladue reports. The second jurisdiction is Alberta. The first bar is green and indicates 53 cases and the second bar is blue and indicates 31 Gladue reports. The third jurisdiction is Saskatchewan. The first bar is green and indicates 82 cases and the second bar is blue and indicates 16 Gladue reports. The fourth jurisdiction is Manitoba. The first bar is green and indicates 44 cases and the second bar is blue and indicates 7 Gladue reports. The fifth jurisdiction is Ontario. The first bar is green and indicates 81 cases and the second bar is blue and indicates 39 Gladue reports. The sixth jurisdiction is Quebec. The first bar is green and indicates 36 cases and the second bar is blue and indicates 24 Gladue reports. The seventh jurisdiction is Newfoundland and Labrador. The first bar is green and indicates 16 cases and the second bar is blue and indicates 1 Gladue report. The eighth jurisdiction is New Brunswick. The first bar is green and indicates 5 cases and the second bar is blue and indicates 1 Gladue report. The ninth jurisdiction is Nova Scotia. The first bar is green and indicates 9 cases and the second bar is blue and indicates 7 Gladue reports. The tenth jurisdiction is Prince Edward Island. The first bar is green and indicates 3 cases and the second bar is blue and indicates 3 Gladue reports. The eleventh jurisdiction is the Yukon. The first bar is green and indicates 18 cases and the second bar is blue and indicates 7 Gladue reports. The twelfth jurisdiction is the Northwest Territories. The first bar is green and indicates 23 cases and the second bar is blue and indicates 5 Gladue reports. The thirteenth jurisdiction is Nunavut. The first bar is green and indicates 32 cases and the second bar is blue and indicates 2 Gladue reports. In total 2,688 cases were listed in the CanLII referenced the term Gladue or the Gladue decision during the six years reviewed for this study. Of these, only 802 cases involved an Indigenous offender and only 530 cases of the 802 cases included a decision where the court explicitly applied or considered Gladue principles and section 718.2(e). These 530 cases formed the sample for this study, with most cases (77%) being heard between 2019 and 2021. Each province and territory is represented in the sample of cases reviewed. Over half (55%) of the 530 cases that considered Gladue principles were heard in British Columbia, Saskatchewan, and Ontario (see Figure 1). Of the 530 cases, 38% included a Gladue report, with British Columbia, Ontario, Alberta, and Quebec the largest contributors. The lower use of Gladue reports in Nunavut may be a result of not having a publicly funded Gladue report writing program as well as the court’s perception that they are unnecessary since the courts are already knowledgeable about the historical and systemic factors impacting Indigenous peoples and that they consider them in their decision-making on a regular basis. Footnotes Footnote 34The initial review of Gladue case law (2000, 2010, and 2018) was undertaken by Benjamin Markusoff who was a law student interning with the Justice Canada Research and Statistics Division at the time. The review included three years of cases: 2000 (year after the Gladue decision), 2010 (10 years after the first year), and 2018 (the year before the initial review and six years after the Ipeelee decision). Footnote 35See Barkaskas et al., 2019, p. 41, para 3, which addresses the considerations of who the Gladue writers are and the importance of their connections to Indigenous communities. Footnote 36Although there are formal Gladue report writing training programs and courses, there is no recognized standard for the certification of Gladue report writers. Footnote 37CanLII: The Canadian Legal Information Institute offers through the CanLII website public access to court judgements and legislation from all courts in Canada. This includes the Supreme Court of Canada, federal courts, and all of Canada’s provincial and territorial courts. (Available at: https://www.canlii.org/en/info/about.html). Footnote 38Due to the timing of analysis of the case law for this study, cases in the courts between October 1 and December 31, 2021, were not included in the review. Footnote 39There were five cases in French in Quebec during the study period: R v Labrosse, 2016 QCCQ 6528; R v Kanatsiak, 2020 BCCS 1523; R v Weizineau, 2012 QCCQ 5670; Isaac vCommissaire à la déontologie policière, 2005 CanLII 26460 (QCCQ); R v Petiquay, 2005 QCCQ 506, however, they were not included in this case law review. Footnote 40For additional information on First Nation Indigenous Courts see: https://www.cerp.gouv.qc.ca/fileadmin/Fichiers_clients/Documents_deposes_a_la_Commission/P-379.pdf; https://pubsdb.lss.bc.ca/pdfs/pubs/What-Are-First-NationsIndigenous-Courts-eng.pdf. Footnote 41R v G.H., 2020 NUCJ 21; R v Cooper-Flaherty, 2020 NUCJ 43; R v Arnaquq, 2020 NUCJ 14; R v Iqalukjuaq, 2020 NUCJ 15; R v Apak, 2018 NUCJ 1; R v Kippomee, 2018 NUCJ 8; R v Itturiligaq, 2018 NUCJ 31. Footnote 42However, as noted by one defence counsel “time in the territory and exposure to those who use its courts does not translate into deep historical or sociological understanding of the people or the place… that while Nunavut judges are willing to consider and are capable of applying the context of an Inuit offender’s background, that is not a substitute for the information itself.” See: https://www.theglobeandmail.com/canada/article-top-nunavut-judge-denies-request-for-territorys-first-written-gladue-2/. (责任编辑：) |
