Legal Ease, April 27

Aboriginal people make up a large proportion of the people in prison in Canada. Nearly 20 years ago the Supreme Court of Canada ruled the large number of aboriginal prisoners “may reasonably be termed a crisis.”

So to try to limit the number of aboriginal prisoners, Parliament and the courts together developed a process whereby Aboriginal offenders are sentenced in a different fashion than other offenders.

While this process does not usually lead to shorter sentences for very serious crimes, it does mean that courts must impose a prison sentence only where there is no other viable option. Even where prison is imposed as a sentence, restraint is to be given special consideration.

This special sentencing process is usually called Gladue sentencing; it is named for a Supreme Court of Canada case from 1999.

Courts are required to consider the unique systemic factors that may have brought a particular Aboriginal offender before the court.

The consideration of such factors, of course, requires a factual basis and that is where the Gladue report comes into play.

Unfortunately in Nunavut, resources are often limited and specific detailed Gladue reports are sometimes hard to obtain. Pre-sentence reports often are used as partial replacements for full Gladue reports.

Courts need to make informed decisions and this means drawing on sources of information that might not normally be put before the court.

The Supreme Court suggested that “for each particular offence and offender, it may be that some evidence will be required in order to assist the sentencing judge in arriving at a fit sentence.” It further suggested that “special attention in pre‑sentence reports” be given where an Aboriginal offender is present.

Pre-sentence reports can be very helpful, but they need to address the special issues raised for an Aboriginal offender if they are to help in considering Gladue factors.

A Gladue report can be prepared when an Aboriginal offender is convicted of an offence either by guilty plea or following a trial.

The Gladue report serves two purposes. First, it highlights the unique systemic factors that may have brought a particular Aboriginal offender before the court.

Second, it provides information regarding community-based rehabilitation that may or may not be culturally appropriate.

In Nunavut the availability, or lack of availability, of such resources is generally known to judges, but it is helpful to outline the details of what is available.

Some of the unique systemic factors include impacts of residential school, child welfare involvement, dislocation, substance abuse, poverty and discrimination. Each report is unique as it reflects an Aboriginal offender’s life experience.

Having a Gladue report, or at least a detailed history of the Aboriginal offender, available can help the court consider all the factors leading up to the offence.

Knowing that someone has, for example, had a problem with alcohol and most of their offences stem from being intoxicated makes sentencing far more specific—perhaps looking to alcohol treatment.

If the problem arises from childhood sexual abuse a different sentence may be necessary. Either way, having information allows the court to make an appropriate decision.

James Morton is a lawyer practicing in Nunavut with offices in Iqaluit. The comments here are intended as general legal information and not as specific legal advice.