Victims

What are Gladue principles?

 

  • Gladue principles are a recognition and contextualization of intergenerational trauma unique to Indigenous people, from colonization/discriminatory policies.  

  • We believe the criminal justice system does not sufficiently address the needs of victims. Victims need trauma-informed responses in a timely way. 

  • We believe there should be access to victim support services as soon as victimization occurs, regardless of whether arrests are made or matters go to trial. 

 

What are Gladue Reports?
 

  • Gladue Reports have two parts:

    1. The unique background factors relevant to the subject of the Report;

    2. The appropriate sentencing options in the circumstances.
     

  • The Canadian Criminal Code under s718.2(e) states "all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders." 
     

  • Judges have to determine a "fit sentence" or an "appropriate" sentence by looking at the severity of the crime, the aggravating and mitigating factors (Gladue factors) and the characteristics and moral blameworthiness of the accused, among other factors. 
     

  • Judges make the final decision on whether someone is incarcerated, is sentenced to a period of community sentence with supervision, and/or participates in a Restorative Justice process (or any other outcome). Judges have the discretion to determine an appropriate sentence that repairs the harm done and addresses offence cycles. 

 

Have there been any studies to show that Gladue Reports result in shorter sentences?

  • No.  Gladue Reports are only one way the criminal justice system can turn its mind to Gladue factors.  

  • Gladue principles are a recognition and contextualization of intergenerational trauma unique to Indigenous people, from colonization/discriminatory policies.  

  • A "fit sentence" does not always mean a "lighter sentence". In some cases, the Restorative justice component can mean a long and comprehensive plan to address their offence cycle while other times it can be participating in a cultural practice of making amends.  This is the discretion dependant on the sentencing Judge. 

 

What information goes into a Gladue Report?
 

  • The unique circumstances of an Indigenous accused are put forward in a Report.  The Report highlights the realities of intergenerational trauma caused by colonization and Indian Residential School, among many other factors.​

  • Gladue Reports Writers look at restorative ways to address the harm done to victims.  

"I don't like a sentence the accused received.  I wanted to see a longer jail sentence. I blame the Gladue Report for this."
 

  • Gladue Report writers are not advocates for the subject of the Report, nor are Gladue Reports written to advocate for the subject.

  • A Gladue Report is not an Expert Report. 

  • Gladue Reports must be balanced, neutral and objective. 

  • Gladue Reports are a tool to help the court make an informed decision.

  • This means that social or mental health issues that play out in criminality and deviance, likely need a therapeutic response incorporated, in combination with early interventions, to decrease victimization. 

  • Judges have to determine a "fit sentence" or an "appropriate" sentence by looking at the severity of the crime, the aggravating and mitigating factors (Gladue factors) and the characteristics and moral blameworthiness of the accused, among other factors. 

 

Are Gladue Reports "Expert Reports?"

 

  • No. Gladue Reports are not Expert Reports.

  • Gladue Reports are not held to the "Expert" standard to make conclusions about whether information is valid or not.  They bring forward information they have identified. 

  • Gladue Report Writers are prohibited from advocating for one party over another. 

  • Gladue Reports must be balanced, neutral and objective. 

  • Probation officers prepare Pre-Sentence Reports. 

  • Gladue Report writers prepare Gladue Reports (a specialized pre-sentence report for Indigenous people). 

  • Gladue Report Writers are held to a high standard to corroborate information evidence, to the best of their ability, through primary and secondary resources and by interviewing collaterals (family, friends, etc).  

  • Gladue Reports provide information for the court.  Judges determine whether that information will be taken into account during sentencing.
     

 

"I heard something read out from the Gladue Report that I did not agree with?:
 

  • A victim will usually hear extracts from a Gladue Report read out during sentencing and may not agree with the existence of a Gladue factor or the extent of its impact on the offence cycle of the accused. 

  • Gladue reports are prepared for the judge, not the crown or the victims. This means a victim may not have seen the individuals contacted, interviewed, or the primary and secondary sources that have been used in the report.  They may not see a disclaimer that raises challenges with interviewing a broad array of collaterals. (Victims do not have a right to access Gladue Reports, this would require a court application). 

Here are some common scenarios:

 

Example 1: Allegations of abuse
If an accused alleges sexual abuse from a family member, but there are conflicting stories from other collaterals (family members) interviewed, it is up to the crown to raise the conflict in the Gladue Report, at sentencing. It is then up to the Judge to resolve this conflict, with the assistance of submissions from crown counsel and defence counsel. 

 

Please note: It is not up to the Gladue Report writer to come to a conclusion on whether a sexual abuse allegation is valid or not (as this is outside our expertise and we are not Court Experts).

Example 2: FASD or FASE
If a mother of the accused states she did not drink alcohol while pregnant with the accused, but there is conflicting information in the Gladue Report from a partner or family member stating there was drinking during the pregnancy, it would be up to the court to decide on whether the accused requires an FASD assessment by Forensic Psychiatrist (etc), prior to sentencing. 

Please note: It is not up to the Gladue Report writer to come to a conclusion on whether the person has an FASD or FASE diagnosis (as this is outside our expertise and we are not Court Experts).

Example 3: Attendance at Indian Residential School (IRS)
If an accused says their grandfather attended an IRS, but their mother states they did not (or attended Day school), there would need to be evidence presented by crown and defence about the contestation of information.  

 

Please note: It is not up to the Gladue Report writer to come to a conclusion on whether the person did or did not attend IRS but to present the information provided to them, corroborated by other collaterals. 

 

Are there verifiable ways to identify whether someone attended IRS?
 

  • Efforts are being made with entities involved with the TRC's archives, to establish a formal process by which a Gladue Report Writer can access databases to identify whether someone attended an IRS or a day school, the name of the school, duration of attendance, what ages the person began/ended, and narratives about their lived experiences.  Records are not available for those survivors who are deceased.

Where do Victim Impact Statements fit in?

 

  • Gladue Writers sometimes receive victim impact statements.  Some Gladue Report writers will provide this information to the accused to respond. The attitude toward the offence is put in a Gladue Report.  It is up to the accused to come up with ways to respond to the victims. 

 

Where can I make a complaint?

 

  • This depends on who is the author of the report and whether they are a private writer or a writer on a roster.

  • Currently, there is no independent regulatory body nor a complaints process or disciplinary process.  Concerns can be brought forward at the program level.  Currently, rostered writers are independent contractors. 

  • Please bear in mind that it is up to crown counsel if they wish to appeal the decision of a sentencing judge.

 

What about Gladue principles & the Inquiry into Missing and Murdered Women and Girls?

https://www.cbc.ca/listen/live-radio/1-100-ottawa-morning/clip/15715916-mmiwg-final-report-raises-concerns-about-gladue-principle

 

© The Gladue Writers Society of British Columbia 2019