The N.W.T. justice system doesn't use Gladue reports. Some say that should change

As people across the country mourn the Honourable Justice Murray Sinclair, some in the Northwest Territories justice system are reflecting on his contributions to the country — one of those being Gladue principles. 

Established in 1996, Gladue principles are a legal requirement for courts to consider the background of Indigenous offenders and alternatives to prison when sentencing.

There is no standard way of how to include these principles, although in some provinces and territories, specific stand-alone reports, referred to as Gladue reports, are used.

In the Northwest Territories, Gladue principles are written into pre-sentence reports. Lawyers and neighbouring Indigenous nations question whether those reports do justice for Indigenous offenders.

"The Northwest Territories is not certainly the only jurisdiction I'm aware of that does not have Gladue reports, but it does stand out a little bit in that it is a jurisdiction where the population is more Indigenous," Austin Corbett, a criminal defence lawyer who practises in the N.W.T. and Alberta, told CBC.

The percentage of people remanded in the Northwest Territories is the second highest in the country, according to a report from the federal government — with 89 per cent of sentenced people in the N.W.T. being Indigenous. 

The Indigenous population in the N.W.T. is 49 per cent, according to the 2021 census.

In Alberta, defence lawyers can request a Gladue report on the Court of King's Bench of Alberta website. Writers are Indigenous and generally from the communities they are writing about. 

"I think those have been very valuable, not only to myself and to Crown prosecutors, but also to judges in learning a lot more about what might have gone into why somebody is coming before the court having committed a criminal offence," he said.

He added the pre-sentence reports used in the Northwest Territories do include Gladue factors "but it's not of the same length and thoroughness as a Gladue report in Alberta would be."

Territorial judge ruled pre-sentence reports are adequate

The issue of whether to use the stand-alone reports was recently brought up in territorial court when a lawyer filed an application for a court-ordered Gladue report.

In 2023, the application was rejected by territorial court Judge Vaughn Myers, who said the pre-sentence reports in the Northwest Territories compare "very favourably to the Gladue reports produced in Alberta."

The judge rejected the presumption that pre-sentencing reports would be inadequate.

"There is not a shred of evidence adduced to support that proposition," Myers wrote in the decision. 

But Corbett said who is writing the report matters.

In the N.W.T., pre-sentence reports that include Gladue principles are written by probation officers.

With the report writers in a "quasi-judicidal" role, Corbett said an Indigenous offender could be worried about being honest with the probation officers as it could lead to a breach of probation which could lead to more charges against the offender.

"They have enforcement capabilities, if you are on probation and you're reporting to a probation officer, you are of course going to be worried that they may breach you," he said.

The intention of the reports is also different, the lawyer said — pre-sentence reports are ordered by the court under the Criminal Code to assist the courts in understanding an offender as an offender.

"That's very different from a standalone Gladue report written by a Gladue writer," Corbett said.

CYFN says writers should be Indigenous and trained

In other regions, Gladue report programs are Indigenous-led. 

The Council of Yukon First Nations (CYFN) piloted a three-year Gladue report writing program in 2018 that turned into a full-time program.

"Prior to the pilot project, numerous First Nations and different lawyers would be doing Gladue reports off the side of their desk and they were done on an ad-hoc basis," Shadelle Chambers, CYFN executive director told CBC.

"So what we wanted to do was ensure that there was a culturally appropriate formalized program in the Yukon so there would be consistent standards and practices on the report."

When the pilot started, it was funded by the Yukon government with an estimated 25 to 35 reports needed each year and about three writers. Now, 75 reports are written annually, with about seven writers on the roster — and there is federal funding secured to grow the program including exploring aftercare for Gladue clients.

"It does not need to be done by lawyers or government employees such as probation officers," Chambers said.

"I'm sad to hear that the N.W.T. does not have a program — you know, we had to fight for funding and push, push, push, and got it done."

N.W.T. courts consider Gladue factors, government says 

The territorial Department of Justice declined an interview with CBC, and instead emailed responses about how the process works.

Probation officers are provided specific training and include Gladue factors in pre-sentencing reports prepared for the court, Thomas Ethier, spokesperson for the department, wrote in an email.

"In the N.W.T., there is a specific section of the pre-sentence report that refers to factors related to the accused as an Indigenous offender, including the legacy of residential schools, and other contributing circumstances," Ethier wrote.

Ethier noted there is Gladue writer training provided by different organizations, such as Aboriginal Legal Services in Toronto, and said probation officers are provided "pre-sentence report training as part of probation officer mandatory training."

He said stand-alone Gladue reports are sometimes requested by defence counsel and Gladue writers are contracted in some circumstances.