Nunavut’s chief justice has passed judgment on the ability of territorial justice staff and court workers to address Gladue factors and he feels they’d do a better job than southern-based specialists.
NNSL file photo
Gladue factors are those used in weighing appropriate sentences for Indigenous offenders. They take into consideration socio-economic and historical obstacles and traumas that Indigenous convicts have endured – this may include sexual abuse, alcoholism, drug abuse, family members committing suicide, having been in the adoption system and the legacy of residential schools. Consideration of these factors has become mandatory since a 1999 Supreme Court decision.
However, Nunavut’s Gladue reports are rather informal, based on lawyer’s conversations with clients, supporting details from Department of Justice employees and, occasionally, input
from Elders.
Defence lawyer Eva Tache-Green paid for a Gladue report to be composed by academics in southern universities for a 42-year-old Inuk client who pleaded guilty to sexually touching a 13-year-old girl in the middle of the night while the girl was sleeping. The case was heard in late 2019 and Sharkey handed down a four-month jail sentence earlier this month. Tache-Green argued that a conditional sentence served in the community would be appropriate for the man, who had no criminal history.
Chief Justice Neil Sharkey sharply disagreed.
“In my view, anything other than a jail term in this case would be a signal to women in Nunavut that the court does not consider what the offender did to be all that serious,” he stated.
Superior overview
Tache-Green also contended that a knowledgeable and dedicated Gladue writer would provide a “superior overview” of the systemic factors that affect offenders and that non-Inuit legal professionals in Nunavut “don’t know what we don’t know” in regards to Inuit conventions.
In his subsequent decision, Sharkey stated that Indigenous offenders “do not have the right to the production of a publicly-funded Gladue report in advance of sentencing.”
Sharkey noted that offenders are able to have a report produced privately but this “almost never occurs
due to the associated cost.”
The chief justice mounted a strenuous defence of Nunavut’s existing system.
“The Legal Services Board of Nunavut – the entity charged with providing legal aid services in the territory – has a long and distinguished history of collaboration and co-operation with Indigenous court workers in representing clients,” Sharkey stated. “Historically, the court workers, who are based in the communities, have served as invaluable resources and providers of community and individual
knowledge to counsel. The intimate cultural knowledge and information court workers can provide
to the court is endless.
“If we rely on southern Gladue report writers, we risk remaining ignorant of the specific cultural
knowledge already present in existing community resources like Indigenous court workers.”
Sharkey also expressed concerns about potential delays if southern-based Gladue writers were to assume responsibility for the duties.
Finally, the chief justice said he’s optimistic that current and upcoming Inuit lawyers will one day take over the judges’ bench in Nunavut, bringing a more intimate understanding of Gladue factors with them.
A Department of Justice spokesperson stated that the department is reviewing Sharkey’s Oct. 5 decision
on Gladue report writing. A survey of other Canadian jurisdictions shows that Gladue writers are
mostly employed by legal aid societies or Indigenous organizations, the spokesperson stated. Those equivalent parties in Nunavut will be consulted as the Department of Justice proceeds with its analysis.
It’s nice to have an optimistic Chief Justice in Nunavut, but that doesn’t change the fact that quickly speaking to a client once is no substitute to having a dedicated writer working on the Gladue report alone, and there are no inuit judges who are able to fill in the gaps from rushed, informal work not focused on Gladue factors.
.
Lawyers are expected to get everything done for everyone’s files aside from any Gladue work in a very short timeline, along with doing everything related to Gladue work.
.
The Nunavut courts can continue to pretend that ‘every court is a Gladue court’ in the territory if they want and that everyone is an expert at it here, but anyone paying attention knows that what happens up here is no substitute. Half the time judges and lawyers fly into a community and can’t even pronounce the name, let alone know the deep history of the area or spend time with the specific individual to understand the sensitive chain of events before their offenses. Having a ‘southern based’ Gladue expert is not a barrier to understanding things in the Nunavut context, given nearly every lawyer to ever practice in Nunavut has not been Nunavummiut: it’s been southern lawyers trying to do two jobs at once in a short time frame. And even down south, most Gladue writiers are not indigenous.
.
There needs to be dedicated Gladue-writing in the territory, so proper time can be spent preparing their reports. A southern Gladue writer spending time discussing only Gladue factors will be more effective than a southern lawyer rushing through 2-3 meetings (at best) before trial, especially when those meetings are spent discussing more than just what’s relevant for Gladue reasons. It will also free up lawyers to be… lawyers. And community court-workers are busy with their jobs too, and have a wide-range of different backgrounds that can’t replace Gladue-writing specialists. Everyone’s jobs get easier and more effective if they don’t have to also scramble to prepare Gladue information on top of everything. this includes the job of the prosecution and the judges, too.
.
In a jurisdiction where some cases get delayed because prosecutors & police lose files or booked a vacation/ left the territory suddenly without telling people, I don’t think it’s much of a problem for some delays to occur due to proper consideration of Gladue factors. That’s part of the job, after all.
I agree with everything stated in the above comment and would just add a couple of points.
The client of Eva Tache-Green was very fortunate to have her as council and thus be provided with a proper Gladue assessment done by people who are following the Gladue ruling. Such is not the case in Nunavut. Two southern based psychologists are typically contracted by Nunavut Justice to do assessments for long term or dangerous offender designation. Both are still using the same assessment tool that the Supreme Court of Canada has twice now ruled to be suspended.They are paid as well so why not use the same money to pay for an assessment that follows the intent of the Gladue ruling..exactly whose interests are being served here. Bear in mind the 7% increase in incarceration for Nunavut at last count, highest in the country. Are the men here really that bad or is it time to treat the underlying causes of colonial fallout: addiction and trauma.
Inuit organizations in Ottawa provide more and better services for Inuit in terms of assessment and treatment than Nunavut and with greater numbers of Inuit involved delivering those as well.
One final point deals with community support and involvement. There has been a steady decline in real community involvement probably at the same annual rate of 2% of Inuktitut language lose. Interpreting is not provided until trial, in most cases seen as a waste of time and money.
Delays for trial seem directly connected to willingness of defendant to plead guilty thus saving the time and expense of jury which is another lose of community involvement. Add to that the increased deal brokering between crown and defence lawyers which has them making joint submissions to the court. And it all begins when the RCMP decide the a charge should be laid.
Finally, it doesn’t seem to be consistent with the Gladue ruling that beneficiaries designated as dangerous offenders be banished from their homeland and compelled to survive outside their cultural territory.