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.