5. Conclusion

Since the 1999 SCC Gladue decision, a number of court decisions have helped to clarify that all Indigenous offenders have the right to have Gladue factors considered in their case, including those involving serious offences. Although Indigenous offenders have a right to have Gladue principles applied, they do not have an absolute right to have a Gladue report in all jurisdictionsFootnote 107 as courts can use substitutions to obtain the required information to make decisions.Footnote 108

The review of 530 cases found that there was a significant increase in the application of Gladue principles and use of Gladue reports by the courts between 2000 and 2021. Although most cases reviewed involved sentencing decisions (for mostly violent offences), there was increased use in other areas, including bail hearings, long-term and dangerous offender applications, as well as Charter challenges.

Although there was an increase in the application of Gladue principles and the use of Gladue reports by the courts, each jurisdiction has its own approach. Some provide Gladue report writing through various Indigenous organizations (i.e., Ontario and Quebec). Others use a centralized Gladue report service that includes a roster of contracted writers (i.e., Alberta, British Columbia, Nova Scotia, Prince Edward Island, and Yukon).Footnote 109 In some of the jurisdictions that do not have a publicly funded Gladue report program (i.e., Manitoba, New Brunswick, and Northwest Territories) probation officers are trained to include Gladue factors in PSRs. The variability in how Gladue report writing and training is administered across the country may have an impact on access to justice for Indigenous people, which could be examined through future research.

Whether a Gladue report is requested by the courts depends on a number of factors including: the availability of resources to prepare Gladue reports; judges deeming them only necessary in exceptional circumstances; perceptions that PSRs, oral or written submissions were sufficient substitutions; concerns over the inconsistency and lack of national standards for Gladue reports and training; or the offender waiving or declining a Gladue report or submission due to either delays in sentencing or reluctance to re-live traumatic events in court.

Cases where Gladue principles were applied, either by taking judicial notice or considering specific Gladue factors, had an impact on the outcome of the case. In 23% of these cases,Footnote 110 the sentences were reduced or varied (e.g., conditional sentences, intermittent sentences, and suspended sentences); there was a stay in the execution of the remaining incarceration period; a reduced length of time for parole eligibility or probation; or bail conditions were varied. In some cases, courts also permitted bail to be granted based on an offender‘s Gladue factors. When a comprehensive Gladue analysis was undertaken by the court, the availability of programming, proximity of custodial facilities to the offender’s community and the likelihood of rehabilitation and rehabilitative resources were all considered as part of the decision-making process and may have impacted the outcome of the case. If these factors were mitigated, the application of Gladue principles could further help reduce custodial sentences for Indigenous offenders.

Future research could examine what impacts the increase in ongoing support for the implementation of Gladue principles and preparation of Gladue reports,Footnote 111 as well as a growing body of case law may have on future court decisions. In addition, it would be beneficial to examine whether there are any differences in how section 718.2(e) and the associated Gladue principles are applied based on the official language used in the case or between Indigenous and non-Indigenous courts in Canada.