(This article has been translated into French.)

I asked a client to tell me a childhood story about his parents’ drinking patterns, and he answered with a deep sigh and a long pause. I waited on the telephone, listening to his stifled crying.

When he was ready to speak, I was surprised when a torrent of words spilled out – stories of the fear, noise, hitting, running away, confusion and pain of growing up in a home with alcoholic, violent parents.

After a long conversation, I thanked him for his willingness to share some of the reasons his life’s journey led him to a domestic violence conviction. He also thanked me, for listening to his story. I took his words, researched his Indigenous ancestry, which included generations of abuse in the Indian Residential Schools system, and compiled a report for his judge to read before sentencing.

These reports are what Mark Marsolais-Nahwegahbow (Ojibwe) calls, “sacred stories.” I work with Marsolais-Nahwegahbow at IndiGenius & Associates in Ottawa, where we produce what are commonly known as Gladue reports, named for a 1999 case that required judges to consider an Indigenous offender’s unique personal background and possible alternatives to jail. Nearly 20 years ago, these reports were part of a series of justice changes that sought to reduce the vast over-representation of Indigenous people in Canada’s prisons. Today, there are still far more Indigenous prisoners relative to their population, and the rates continue climbing. The justice system has failed to address the underlying causes of criminality and Indigenous offender’s unique healing needs left from over a century of racist policies and laws.

“Much of the judicial system is seen through a Westernized lens,” said Marsolais-Nahwegahbow. Working on the front lines at Correctional Service Canada, he saw Indigenous inmates being pushed through the system “like herding cattle,” with no regard given to their need to heal, nor their Indigenous life circumstances. The inmates would be released, repeat and come right back to jail. Recidivism rates are alarmingly high for Indigenous offenders. After more than two decades witnessing this problematic roundabout, Marsolais-Nahwegahbow wanted to be part of fixing the justice system from the inside.

We delve into the long histories of colonization, systemic racism, residential school fallout, inter-generational traumas and current circumstances.

At IndiGenius, our approach has been to produce sacred stories that reject the cut-and-dried Western style of rehashing an offender’s criminal record and summarized family circumstances, as is seen in other presentence reports. We delve into the long histories of colonization, systemic racism, residential school fallout, intergenerational traumas and current circumstances. The approach is holistic and, more importantly, Indigenous-led. Not all Indigenous sentencing reports are approached this way.

Gladue reports are not mandatory, but every self-identifying Indigenous offender is entitled to have one prepared for the judge to consider at sentencing, bail and parole hearings.

“Counsel has a duty to bring individualized information before the court in every case, unless the offender expressly waives his right to have it considered,” reads the majority decision in the 2012 Supreme Court case R v Ipeelee, which impressed upon judges the importance of using Gladue reports as a sentencing tool.

Lawyers can hire a writer or compose themselves a report that meets this requirement. In our traditional Western justice system, therein lays the problem. In spite of the reminder from the top court that all judges must receive relevant background information to render a sentence that seeks to avoid incarceration for an Indigenous offender, Gladue reports are still severely underused.

If an offender does not know to ask for a Gladue report, they may not receive one. If they ask, they may have to pay for it out of pocket. Anecdotally and in our experience working with clients across the country, the growing demand for Gladue reports is not being met by availability of trained writers.

Federal and provincial funding for more Gladue report writers in both private and public sectors would help lawyers avoid the dilemma of hiring a writer from another jurisdiction.

Many jurisdictions fund the reports through Legal Aid, which in turn contracts out the work to nongovernmental organizations. These organizations are often unable to meet the growing demand for reports, they set limits on who receives one and have difficulty providing reports for clients in isolated or distant communities. Many of our clients wind up paying for their Gladue reports out of pocket. If there was more federal and provincial funding for Gladue report writers in both private and public sectors, lawyers could avoid hiring a writer from another jurisdiction, which would add more delays and costs to the already lengthy criminal trial process, and fewer clients forego the Gladue report altogether.

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There is no national Gladue writing certification, and only a handful of institutes offer formal training. Many of today’s report writers come into the job through other careers in the justice system. I came into it as a journalist with interviewing and research skills, paired with experience working in Indigenous communities. Interviews are highly personal and require a writer skilled in the nuanced art of creating a safe space that encourages clients to open up about their deepest, darkest moments. Increased funding for reports, and training report writers in a style that is set out by Indigenous people, could produce a system where Gladue reports healed more offenders and provided sentencing recommendations to judges.

Gladue reports have never been a free pass or a panacea to the racism inherent in the courts. They are a tool that, when appropriately used, ask a judge to consider an alternative to jail. Not because an offender should not be punished for breaking the law, but because for Indigenous offenders the long and winding road leading to the offence is characterized by a struggle that is due, in part, to historically racist policies enacted by Canada’s government.

The federal justice department is revisiting Indigenous justice reform. Although federal Justice Minister Jody Wilson-Raybould, herself an Indigenous woman (Kwakwaka’wakw), has said her department had begun laying the groundwork for Indigenous justice reforms before the controversial verdicts in the murders of Colten Boushie (Cree) and Tina Fontaine (Ojibwe), the timing has coincided with social outcry for change. As Wilson-Raybould seeks to address systemic flaws that continue to marginalize Canada’s Indigenous communities, she would do well to ask those very communities for input.

Marsolais-Nahwegahbow hopes that this time an Indigenous-led model of justice can stand a chance against centuries of colonial traditions that have put Indigenous people at a severe disadvantage. Effective change does not come from trying to make a square Indigenous peg fit in a round colonial hole, said Marsolais-Nahwegahbow. “Indigenous people have overseen their own justice system long before colonization,” he said.

One change he is spearheading and hopes to see adopted is establishing a national standard for writing Gladue reports based on an Indigenous path to healing. Examples of this would include the seven grandfather teachings, the medicine wheel teachings, and walking the red road. With a uniform, Indigenous-led approach to training writers, these reports can become more accessible and more appropriately used.

Our reports involve a powerful exchange wherein our clients are given ownership of their story, including responsibility for their actions.

We use an Indigenous model of storytelling, looking at the offender’s life as a journey or continuum, placing them in the larger history of his/her ancestry, and include stories and anecdotes gathered from family and community members. This is blended with the spiritual healing concepts, Indigenous community support programs and alternatives to jail. Our reports involve a powerful exchange wherein our clients are given ownership of their story, including responsibility for their actions. When the report is complete and submitted for sentencing, the offender comes away with a sense of place in their community, ancestry and nation.

We have come results where offenders, through the process of interviewing for and reading their sacred story, realize their worth, often after a life of feeling marginalized and oppressed. Therein lies the true value of a Gladue report: healing.

Poverty, low education and substance abuse frame many Indigenous people’s realities and predict high rates of criminality. The links between historical government policies and intergenerational traumas among our Indigenous people today are clear. It is thus incumbent upon the justice department to understand this underlying need for healing and listen to the Indigenous communities it serves when making changes to the justice system. The alternative is to see Indigenous inmate numbers continue to climb.

This article is part of the Widening the Lens on Criminal Justice Reform special feature.

Photo: “So Much Depends Upon Who Holds the Shovel,” by Christi Belcourt. Acrylic on Canvas, 48 x 96.

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Sarah Niman
Sarah Niman studied terrorism law at the University of Ottawa. She is a recent faculty of law graduate and current articling student. She is also a freelance journalist and Gladue Report writer for the courts.

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