IQALUIT, Nunavut — Nunavut's top judge says one of the reasons the territorial court doesn't order reports into the background of Indigenous offenders before they are sentenced is that there are no writers in the North who produce them.
Chief Justice Neil Sharkey notes southern writers would have to be hired and might not have the same "community connections" with people in the North.
"I would caution counsel against the assumption that a Gladue writer experienced in serving First Nations and Métis communities will easily translate those skills to an Inuit context," Sharkey wrote in a decision to deny a lawyer's application for such a report for her client.
"I am reluctant to create more delay for offenders by ordering reports not authored by those with intimate connections to Nunavut communities."
Gladue reports, which are common in other Canadian jurisdictions, are produced to inform sentencing judges about Indigenous offenders' personal and community histories, as well as of the circumstances that brought them before the court. They are meant to include the adverse effects of colonization, such as residential schools, forced relocation and the '60s Scoop.
A 1999 Supreme Court of Canada decision in the case R v. Gladue requires judges to consider such factors when sentencing Indigenous offenders.
The Nunavut Court of Justice has never ordered a Gladue report.
Sharkey's comments were contained in his written reasons, released earlier this week, for denying the lawyer's application.
Other jurisdictions in Canada have independent writers who produce Gladue reports for sentencing judges.
"Nunavut is not one of those jurisdictions," Sharkey wrote. "To date, the government of Nunavut has not implemented a program to connect Indigenous offenders with knowledgeable Gladue writers."
The Canadian Press asked Nunavut's Justice Department if it plans to fund such a program, but did not hear back.
Eva Taché-Green, the lawyer who requested the report, said in her application that Nunavut's courts are considered "Gladue courts" because they serve mainly Inuit, and resident judges have a "depth and breadth" of experience in an Inuit context.
But she argued that while Nunavut judges are willing to consider and are capable of applying the context of a Inuit offender's background, that is not a substitute for the information itself.
"Time in the territory and exposure to those who use its courts does not translate into deep historical or sociological understanding of the people or the place," her application stated.
Taché-Green had requested the report for a client who had pleaded guilty to sexual touching of a minor. Last month, Sharkey sentenced the man to four months in prison.
In Nunavut, a client's social and family background comes from lawyers' statements in court, pre-sentence reports written by the Justice Department and from offenders themselves.
Taché-Green argued those methods aren't sufficient for several reasons, one being that defence lawyers aren't equipped to gather and synthesize the information.
"Defence counsel are not, other than by happy coincidence, experts on Inuit culture, the history of colonialism in the Arctic and/or Inuit-Canadian relations," her application stated.
Disclosing such information in open court could also be retraumatizing for the offender, she said.
Taché-Green also argued that time constraints prevent lawyers from gathering enough details to satisfy Gladue requirements. Lawyers often meet with their clients once or twice "in the days or hours before acting for them in court."
"The background information gathered by defence counsel for sentencing purposes is no more than a snapshot."
In his decision, Sharkey said nothing prevents an offender from getting a report done privately, but that rarely happens because of the cost.
After Sharkey refused the application in June, Taché-Green had a report done by Jane Dickson, a law professor who was assisted by two Gladue report writers in Ottawa.
In an email to The Canadian Press, Taché-Green said when she argued for a report last year, she did not say she would obtain one from a southern writer.
"At the time, I was hoping that an order from the court for a Gladue report could help us to identify a local writer and/or galvanize a program to train local Gladue writers," she said.
Taché-Green said she has filed to appeal her client's sentence and there is likely to be a review of Sharkey's decision not to order a report.
This report by The Canadian Press was first published Oct. 8, 2020.
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This story was produced with the financial assistance of the Facebook and Canadian Press News Fellowship.
Emma Tranter, The Canadian Press
