Gladue reports can reduce sentences for the most marginalized, but many don’t know it’s their right | CBC News

Gladue reports present circumstances of a self-identified Indigenous accused’s life for a judge to consider while deciding on a sentence. These can include personal and community histories, and traumas such as colonialism and its ongoing impacts.

Even though Gladue reports are a right for every Indigenous person who appears in court — thanks to two court decisions from 1999 and 2012 — not everyone is aware of their right to them, or has access to Gladue report writers. Saskatchewan in particular ranks near the bottom of the country for the use of Gladue reports, according to data from the Aboriginal Legal Society, which intervened in the landmark 1999 court case.

Gladue reports are time-consuming and resource-intensive, but in late 2020 the Integrated Justice Program (IJP), which is funded by Public Safety Canada, created a team of legal experts and people who study and work with people with fetal alcohol spectrum disorder (FASD), entirely focused on writing the reports for Saskatchewan trials.

WATCH| What are Gladue reports?

Gladue reports explain an Indigenous person’s history, their families history and their community’s history to the courts to take the individual’s unique circumstances and challenges into consideration. 2:51

Advocates say the writing team is allowing more people to get the Gladue reports they are entitled to.

Hotomanie, 57, from Carry the Kettle Nakoda Nation — roughly 80 kilometres east of Regina —  had at one point been facing 18 months for impaired driving last spring. After his Gladue report, which presented factors including his FASD, Hotomanie’s sentence was reduced to six months.

Over the course of three days of three-hour interviews for his Gladue report, Hotomanie shared the pains he faced growing up. He experienced a lot of violence as a child in a home where both his parents drank. He lost loved ones — particularly his parents — and was in the residential school system.

It wasn’t until his interviews with the IJP that Hotomanie learned how these traumas impacted him.

Now, with a large support network consisting of his wife, his six children, 25 grandchildren, friends and leaders in Carry the Kettle, he’s more worried about his future than his sentence.

“I’ve got all that stuff out and I’m doing better. I’ve got a job. I’ve never had a job for a long time,” he said.

“I’m kinda hoping that I can save my job, but time will tell.”

Representing the most marginalized

The IJP was launched in 2019. It is a joint initiative run by the Fetal Alcohol Spectrum Disorder Network and File Hills Tribal Council. The program focuses on comprehensive support for Indigenous people with FASD in Saskatchewan. 

IJP launched the team focused on writing in-depth Gladue reports in fall 2020.

Hotomanie said he didn’t know what a Gladue report was until he met Michelle Stewart and Robyn Pitawanakwat from the IJP.

Stewart, an expert on FASD, is the IJP’s project lead and Gladue project coordinator, while Pitawanakwat is the program’s coordinator, runs the organization’s frontline services and conducts Gladue interviews.

“These are often the most marginalized people within the justice system,” Pitawanakwat said.

“We work with them because their disability [FASD] isn’t understood, and their disability often makes them more vulnerable to charges, where someone else who presents differently would probably not be charged.”

Stewart, an associate professor at the University of Regina, said the initial goal was to work directly with people with FASD to ensure their complex needs were being met.

“Our goal is to expand that circle of support for them, because we’re talking about individuals that experience compounding forms of marginalization and alienation,” Stewart said. 

Stewart and Pitawanakwat said their work — building relationships to learn about someone’s traumas, personal and familial history, taking the time to understand those subjects, then preparing the reports — is an effort toward reconciliation within Saskatchewan’s justice system.

The Truth and Reconciliation Commission’s 34th call to action calls on governments, “to make changes to the criminal justice system to improve outcomes for offenders with Fetal Alcohol Spectrum Disorder (FASD).”

Pitawanakwat said IJP writers provide courts with important context. Many of the interviewees have been separated from their families and peers, Pitawanakwat said.

“One of the strongest ways that we can push back against colonialism is to bring families back together; to bring people home and keep them home whenever possible,” Pitawanakwat said.

Hotomanie’s report did just that, allowing him to stay in Carry the Kettle a bit longer before he was incarcerated. He will also be able to reconnect with his family sooner, due to the reduction in his sentence the judge granted after reading the report.

Program’s work greatly needed

The IJP team has completed more than 30 Gladue or pre-sentencing reports in Saskatchewan as of January 2022, Stewart and Pitawanakwat said.

Gladue reports can take weeks to months to complete, due to resource constraints within the justice system. The IJP’s team-based approach has dramatically reduced turnaround times in Saskatchewan, where the need for the program is great. 

The province ranks near the bottom when it comes to using Gladue reports in court, said Jonathan Rudin, the program director for Aboriginal Legal Services.

“In most parts of Canada where there are Gladue reports, the provincial government in particular, or the provincial legal aid plan, steps up with funding,” Rudin said. 

“In Saskatchewan the provincial government does not seem inclined to provide that funding at all.”

Data provided by the Ministry of Justice showed that the provincial government paid a combined $78,080 for 24 Gladue reports over the past five years. That data doesn’t include reports by independent agencies like the IJP.

In the 2019-2020 reporting year — the last time the province covered the costs for Gladue reports — the government paid for two reports. In the 2018-2019 reporting year it paid for 10, the most in the five years of data provided.

In the 2020-2021 reporting year, it paid for none.

Rudin said that, aside from IJP reports, the few cases where Gladue reports were completed in the province were primarily privately funded. In just a few instances, courts were asked to provide the money or ordered the government to provide the money.

Government support needed, expert says

Jane Dickson, who trained Stewart in Gladue writing and is currently a professor of law at Carleton University, said there shouldn’t need to be independent agencies doing Gladue reports, as the Supreme Court of Canada has ruled every Indigenous person should be granted one.

“If government stepped up and adequately funded Gladue we wouldn’t need to find these creative solutions to secure funding,” Dickson said. 

She said in Saskatchewan and many other parts of Canada, courts take it upon themselves to decide whether or not they have the right amount of information to determine someone’s fate. 

In Saskatchewan, the Ministry of Justice said courts were committed to using “relevant Gladue information” in pre-sentencing reports completed by community corrections staff like parole officers.

“Community corrections has made a concerted effort to heighten awareness of Gladue factors and provide Gladue information in pre-sentence reports,” the ministry’s statement said.

Dickson said legal professionals would rather see full Gladue reports like those being done by the IJP, but there is too much demand. She’s working with organizations across Canada on a team-based approach like what the IJP is doing in Regina.

“The model is absolutely generalizable across the country,” Dickson said.

A success, so far

Pitawanakwat said while some of the reports the IJP did were more beneficial than others, the program was successful so far because the people involved feel supported in their work.

Most importantly, Pitawanakwat said the clients involved in the program seemed to feel the process was good for them and judges seem to be recognizing the reports are well researched and well written.

Hotomanie said he felt comfortable during the interview process. When things got tough and he became emotional, the group pressed pause and agreed to continue the next day when he felt better. 

He also felt as though he got to know Pitawanakwat and Stewart through the process as much as they got to know him.

The final report made him feel understood by the courts in a way the justice system never had.

“I wasn’t just a person who was getting caught for impaired [driving], I felt good about myself,” Hotomanie said.

“It made a difference in me and my life.”