4. Findings

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4.1 Gladue reports

One of the main ways that the principles laid out in the Gladue decision are applied is through Gladue reports or letters. The first documented Gladue report was prepared by Aboriginal Legal Services (ALS) in Toronto, Ontario, in 2001 (Rudin 2019). These reports, when properly prepared, identify relevant systemic and background factors in the individual’s life that can be considered by courts when sentencing an Indigenous offender (Rudin 2008). On average, it can take six to eight weeks to complete a Gladue report, whereas shorter Gladue letters generally take four to five weeks to prepare (Aboriginal Legal Services 2022). The length of time taken to complete these documents are because Gladue report writers must carry out extensive historical research and in-depth interviews with the Indigenous offender, their family and community members (Aboriginal Legal Services 2022).

4.1.1 Gladue report writing programs, organizations, and training by jurisdiction

Each jurisdiction has its own approach, process, or programs for Gladue reports. The following provides a summary by jurisdiction of programs currently available in the provinces and territories that were identified during the environmental scan for this study.^{Footnote 43}

Alberta

The Ministry of Justice administers a Gladue report writing program that uses contracted Gladue writers. Gladue report writers are located in communities in various court districts within Alberta. A request by either counsel (Crown or defence) or the court must be made during the sentencing process once a finding of guilt has been determined or a guilty plea entered. Defence counsel is required to complete a digital Gladue report request form after the Court has ordered a Gladue report be prepared for sentencing purposes.^{Footnote 44} Orientation for Gladue writers is provided ‘in house’ by the program. All new writers and their resources participate in a mandatory three-hour orientation. This is followed by direct mentoring to ensure the quality of reports being produced is meeting identified standards and expectations.

British Columbia

As of April 1, 2021, the Gladue report program in British Columbia is administered and managed by the British Columbia First Nations Justice Council (BCFNJC), funded by the British Columbia provincial government and the Government of Canada. The program’s transition from Legal Aid British Columbia to BCFNJC is part of the British Columbia First Nations Justice Strategy.^{Footnote 45} A hybrid model is used that includes both full time on-site staff and a roster of independent contractors, to meet the demands. Defence and Crown counsel can apply to the BCFNJC Gladue Service’s Department for Gladue letters for resolution discussions, bail hearings, bail review, sentences less than 90 days; and Gladue reports for sentencing, dangerous or long-term offender hearings, and not criminally responsible hearings. The BCFNJC’s Gladue Services Department has developed training for on-site staff Gladue report writers and Gladue support workers. Gladue report writing training for roster writers is not provided, however mentorship is provided on a case-by-case basis. Since 2017, there are two independent Gladue report writing training programs in British Columbia. The Indigenous Perspectives Society, in collaboration with Royal Roads University,^{Footnote 46} offers “Gladue Writing Training” facilitated by Carleton University professor, Dr. Jane Dickson. This is a 10-week online course and trainees receive certification as Gladue report writers. The Vancouver Community College also offers a two to three year “Gladue Report Writing Certificate” program, and a one-year program called the “Gladue Report Short Certificate.” Both certificate programs deliver courses through a combination of online and face-to-face instruction. However, any on-site or roster Gladue report writers are required to go through the training provided by the BCFNJC’s Gladue Services Department.

Manitoba

In the absence of a publicly funded Gladue program in Manitoba, probation officers prepare PSRs that include Gladue factors when ordered by the courts.^{Footnote 47} Manitoba Justice provides a four-day Gladue PSR writing course for probation officers.

New Brunswick

Although New Brunswick does not have a publicly funded Gladue program, in 2019 the provincial government introduced a policy, “Pre-Sentence Reports for Adult Aboriginal Offenders”, to provide guidance to probation officers on including Gladue information in PSRs (Barkaskas et al., 2019). Probation officers received training on the new policy when it was introduced (Barkaskas et al., 2019). Justice Canada has also provided funding directly to Indigenous organizations to develop a framework for a Gladue report program. In addition, at the time of writing this report, Justice Canada was collaborating with the Government of New Brunswick to support a sustained, community led Gladue report writing program.

Newfoundland and Labrador

In 2019, the Government of Newfoundland and Labrador’s Department of Justice and Public Safety (JPS) held Justice Summits to discuss improving the criminal justice system within the province.^{Footnote 48} Participants in the summit identified a lack of Gladue report writers and a need for Gladue report services in Newfoundland and Labrador. As of August 2023, the Newfoundland Aboriginal Women’s Network confirmed that they are aware of 23 trained writers in Newfoundland and Labrador. In addition, Miawpukek Mi’kamawey Mawi’omi First Nation has also supported training for five Gladue writers. In 2021, JPS coordinated training on Gladue principles with the Indigenous Perspective Society and Royal Roads University in Victoria, British Columbia, for Adult Probation Officers. This training was intended to enhance the provision of PSRs with Gladue Principles. An Adult Probation Officer will prepare the report when the Court has ordered a PSR with Gladue Principles, the offender identifies as Indigenous, and the offender has consented to the provision of information. Newfoundland and Labrador does not offer a publicly funded Gladue report-writing program.

Northwest Territories

In the Northwest Territories, probation officers include Gladue factors in PSRs;^{Footnote 49} however, the Aboriginal Legal Services in Toronto worked with the Government of the Northwest Territories to develop a dedicated Gladue report program.^{Footnote 50} The territorial government is engaging with stakeholders regarding the recommendations in the report.

Nova Scotia

The Mi’kmaw Legal Support Network (MLSN) oversees the production of Gladue reports in Nova Scotia. The cost of preparing Gladue reports is covered through the court services budget (Barkaskas et al. 2019). The MLSN hires contractors to write the Gladue reports (Barkaskas et al. 2019). The Fair Treatment of Indigenous Peoples in Criminal Prosecutions in Nova Scotia policy specifies that Indigenous offenders are entitled to have a Gladue report prepared prior to sentencing by request of the Crown.^{Footnote 51}

Nunavut

In 2020, a Nunavut Court judge denied a request for a publicly funded Gladue report for an Inuk offender,^{Footnote 52} citing that no publicly funded program exists in Nunavut and that information about Inuit offenders and their community usually comes through defence submissions, PSRs, the offenders and Indigenous court workers. The judge also noted that a Gladue report writer from the southern provinces may not be able to translate their experiences serving First Nations and Métis communities to Inuit communities and this disconnect may further delay the justice process for Inuit offenders.^{Footnote 53}

Ontario

In Ontario, there are Gladue report writers on reserve and twelve Indigenous organizations that provide Gladue report writing services with approximately 40 Gladue report writers, funded through transfer payment agreements by the Ministry of the Attorney General of Ontario, Legal Aid Ontario and the Department of Justice Canada. All Gladue report writing service providers in Ontario are either on reserve or based in Indigenous organizations, such as Aboriginal Legal Services, Tungasuvvingat Inuit, Nishnawbe Aski Legal Services Corporation, Grand Council Treaty #3, Ontario Native Women’s Association and the Thunder Bay Indigenous Friendship Centre.^{Footnote 54} Gladue reports and Gladue letters can be requested by the Crown, defence lawyer, Court or by an Indigenous offender, where the individual either has pled guilty or has been found guilty of an offence, and the Crown is seeking a custodial sentenced of more than 90 or 120 days (depending on the jurisdiction). Regardless of who requests the report the Indigenous offender must agree to having a report prepared. Some service providers in Ontario will prepare a Gladue letter^{Footnote 55} where the Crown is seeking a sentence of less than 90 days (Aboriginal Legal Services 2022; Legal Aid Ontario 2022) or for a bail hearing.^{Footnote 56} The scan also identified a Gladue report writing training program through Carleton University. Their Department of Law and Legal Studies offers a law course in “Gladue Writer Training,”^{Footnote 57} a five-day training course offered by Dr. Jane Dickson. Students learn about how to prepare Gladue reports and are tasked with creating a mock Gladue report. The Ministry of the Attorney General also funds Gladue Aftercare Workers in most locations where there is a Gladue report writer.

Prince Edward Island

The Mi’kmaq Confederacy of Prince Edward Island (MCPEI) Indigenous Justice Program^{Footnote 58} coordinates the production of Gladue reports for the court. MCPEI maintains a roster of trained writers to produce Gladue reports when requested and ordered by the courts (Barkaskas et al. 2019).

Quebec

Since 2015, Quebec has offered a structured program for Gladue reports. Gladue reports are ordered by the court at the request of a judge, counsel (Crown or defence) or a justice committee (Barkaskas et al. 2019). Gladue reports can be requested for cases where an offence is punishable by a custodial sentence. Once requested, the court’s registrar submits a form to the Centre Administrative Judiciaire (CAJ) of the Ministry of Justice. The CAJ sends the request to organizations responsible for producing Gladue reports, including: the Mohawk Council of Akwesasne,^{Footnote 59} First Peoples Justice Centre of Montréal (funded by the Department of Justice Canada),^{Footnote 60} the Conseil de la Nation Atikamekw^{Footnote 61} les services parajudiciaires autochtones du Québec (SPAQ) (The Quebec Native Parajudicial Services),^{Footnote 62} the Makivvik Corporation in Nunavik (Société Makivvik)^{Footnote 63} which are funded by the Ministère de la Justice du Québec. In addition, the Cree Nation Government’s Department of Justice, and Correctional Services^{Footnote 64} offers both Gladue report writing services and a four-day Gladue Report Writer Training.

Saskatchewan

In Saskatchewan, defence counsel or an offender do not need to apply for a standalone Gladue report to have Gladue information put before the Court – Community Corrections includes Gladue information in all pre-sentence reports (PSR) for Indigenous offenders. If the Court finds the information in the PSR insufficient, the Court will either request a supplemental report or a separate Gladue report from an independent author. The number of independent reports ordered each year is minimal. Courts in the province have endorsed this approach in numerous decisions, including the Court of Appeal. In 2021 Saskatchewan Community Corrections revised youth and adult PSRs to ensure Gladue factors were addressed consistently and thoroughly, throughout these reports. Risk assessment scoring information is no longer included in the body of the PSR report and has been moved to an appendix section. All probation officers and community youth workers are provided enhanced and ongoing training on how Gladue principles are applied within PSRs.

Yukon

Gladue reports in the Yukon were administered by the Yukon Legal Services Society prior to 2019 when the Council of Yukon First Nations (CYFN) launched a Gladue Report Writing Pilot Project funded by the Government of Yukon. Through the pilot, Gladue report writing and training is managed by a Gladue Management Committee, comprised of representatives from Yukon First Nations, the Government of Yukon, Yukon Legal Services Society, and the Public Prosecution Service of Canada. After trainees have successfully completed their training, they may be eligible for a mentorship on CYFN’s Gladue Roster. Defence counsel, rather than the court, typically requests a Gladue report by applying to CYFN Justice.

4.1.2 Overview of Gladue report writing and training in Canada

Through a review of publicly available information, Gladue report writing organizations were identified in nine provinces and territories, and Gladue report writing training programs in six provinces and territories, as well as one virtual training program.^{Footnote 65} This review provides an overview of the various ways that Gladue report writing and training programs are available across Canada.

The approach used to provide Gladue report writing services varies by province or territory, with some jurisdictions, such as British Columbia and Yukon, using a centralized system for the provision of Gladue reports. While other jurisdictions such as Ontario, use a more decentralized approach where Gladue report writing services are available through many different organizations. Funding for Gladue report writing services also varies by jurisdiction; however, most of the organizations are funded through federal, provincial, or territorial governments.

Although 82% of the organizations identified that offer Gladue report writing services are Indigenous-led, it was not possible to determine if the report writers themselves identify as Indigenous. The identities of individual writers are an important consideration. For example, some participants in Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls (2019) were reluctant to be transparent about their past experience with non-Indigenous writers who may not understand the many realities of Indigenous women.^{Footnote 66} Since Gladue reports require extensive information, writers should have or be able to establish connections to Indigenous communities and organizations (Barkaskas et al., 2019). Lived experience as Indigenous persons, an expertise on particular Indigenous communities, and an educational background working with Indigenous peoples or communities with criminal justice system issues are important (Barkaskas et al., 2019). In addition, writers should know about the experiences and histories of Indigenous peoples and Canadian colonialism (Barkaskas et al., 2019).

With regards to the training for Gladue report writing, five of the eight programs are affiliated with non-Indigenous post-secondary institutions.^{Footnote 67} The post-secondary training programs and courses vary in length from 10 weeks to 3 years, costing from $1,800 to $5,616, and are offered in-person, online, and through hybrid (a combination of in-person and online) formats. Upon completion, the post-secondary programs offer certificates. University law programs also provide law students with Gladue awareness and cultural competency training.

4.2 Gladue case law

4.2.1 Overview of the cases

Most of the 530 cases reviewed for this study involved male offenders (86%) with the remaining cases female offenders (13%) and one Two-Spirit offender. A total of 516 cases involved adult offenders (97%) and 14 of the cases involved youth offenders (3%).^{Footnote 68} Most of the cases included a violent or serious offence^{Footnote 69} (73%) with 34% of these cases involving a form of sexual assault or sexual interference. The remaining cases were property, drug-related, or another type of non-violent criminal offence (27%). It is important to note that the cases reviewed are those that went to court and were more serious in nature. Less serious cases with minor offences are more likely to be diverted pre-charge or to alternative resolution mechanisms for Indigenous people such as an Indigenous Justice Program. Cases within the study period were predominately sentencing decisions (68%), followed by appeals (19%), Charter applications (5%), bail hearings (3%), other applications (e.g., motion hearings) (4%), and applications where a Gladue report was ordered (1%). In 314 of the cases (59%) the victim was identified. More than half (56%) of the victims were female, almost one-third (32%) were male, one victim was transgender, and 11% of cases involved multiple victims. Of the cases reviewed, 22% (118) identified the age of the victim, with 84% adults and 16% under the age of 18.

When applying sentencing principles to determine a fit sentence, courts must balance the needs of both the victims and offenders. The same consideration is important for the application of Gladue principles where judges need to balance the likelihood that the victim experienced similar Gladue factors as the offender.^{Footnote 70} Issues raised in the Missing and Murdered Indigenous Women and Girls Inquiry final report^{Footnote 71} were also noted by some judges in their analysis of the offender’s Gladue factors.^{Footnote 72} This was especially important in relation to cases with violence, sexual violence, and intimate partner violence towards Indigenous women and girls. The 2019 amendments to the Criminal Code created new sentencing and bail provisions^{Footnote 73} that will also need to be considered in cases that involve intimate partner violence. However, it is unclear at this point what impact these new provisions will have on the application of Gladue principles as judges balance the needs of both the offender and the victim.

4.2.2 Increase in the use of Gladue principles and reports

Since the initial tests of the Gladue decision in 2000, the courts have increased their use of Gladue reports and the consideration of Gladue principles. A review of the 530 cases, for the six years shown in Figure 2, found that the most notable increase in cases referencing Gladue came after 2010. This may be a result of the clarifications to section 718.2(e) provided through the 2012 Ipeelee decision. There was also an increase in the use of Gladue reports, with 40% of cases referencing the reports between 2018 and 2021 compared to only one case in 2010 (see Figure 2). While most Gladue reports were requested to assist with sentencing decisions, courts have increasingly expanded their use of Gladue principles beyond sentencing to considering Gladue principles in appeal proceedings, judicial reviews of administrative decisions, application hearings in relation to MMPs^{Footnote 74} and other kinds of applications or motions heard in courts.^{Footnote 75}

Courts indicated that Gladueprinciples are used when considering Charter violations and noted that Gladue principles are required to be applied regardless of the seriousness of the offence. Gladue reports were also used in most Charter challenges regarding MMPs. However, there was no consistency in the use of reports regarding judicial review of bail hearings or dangerous offender/long-term offender applications even though these types of proceedings impact the offender significantly, as they could affect sentencing lengths and/or parole eligibility. Some of the Charter applications challenged^{Footnote 76} the Criminal Code MMP provisions for firearm offences. Between 2007 and 2017, the total proportion of Indigenous offenders admitted into federal custody with a firearm-related offence punishable by a MMP increased from 18% to 40% (Department of Justice Canada, 2017b). Charter challenges of firearm-related MMPs were successful in most jurisdictions with courts declaring of no force or effect to these MMPs leading to sentences being changed or reduced. Additionally, Charter challenges to drug-related MMPs were also successful with courts declaring of no force or effect with similar impacts on sentences.^{Footnote 77} In late 2022, Bill C-5 An Act to amend the Criminal Code and the Controlled Drugs and Substance Act, received royal assent and repealed 11 firearm-related MMPs and additional drug-related MMPs. Bill C-5 specifically stated that the repeal of the firearm-related MMPs was in part to address the over-incarceration of Indigenous people. This is in keeping with the findings within the study period of courts declaring certain MMPs of no force or effect.^{Footnote 78}

Although there was a decrease in the number of cases heard during the last two years of the study period, coinciding with court closures and delays during the COVID-19 pandemic,^{Footnote 79} between 2000 and 2020, courts expanded the use of Gladue reports and the application of Gladue principles in judicial decision-making (see Figure 3). The greatest increase was seen in sentencing decisions to Charter application hearings, bail hearings appeals and other types of decision-making. However, overall, the greatest increase in reference to Gladue principles and reports during the study period was in sentencing cases followed by appeals cases.

4.2.3 Increase in the use of victim impact statements and community impact statements

In balancing the needs of victims and offenders, it is important to understand the offender’s relationship with the victim, as well as their relationship with the community. Victim impact statements (VIS) and community impact statements (CIS) are one element that the courts can consider when making a decision on the appropriate disposition for an offender. Overall, 29% (155 cases) of the cases within the study period included a VIS (94%) and/or a CIS (6%). During the review period, there was an increase in the use of VIS and/or CIS and testimonials beginning as early as 2010^{Footnote 80} (see figure 4). The increase may be attributable to various factors including more awareness regarding VIS and CIS in the intervening years and the introduction of the Canadian Victims Bill of Rights in 2015.^{Footnote 81} Additionally, although there was a decrease in the use of these statements beginning in 2020, this may be due to court closures and restrictions during the COVID-19 pandemic.^{Footnote 82}

4.2.4 Availability of Gladue reports

Most of the cases reviewed (60%) did not include a Gladue report. If there was a mention of a report in these cases, it was to indicate that no report was included in the submission to the court or that a report would not be forthcoming. The reasons provided for not including a Gladue report included a lack of resources or services to complete a Gladue report or the court decided that a report was not required.

Capacity for reports

Even if a court requested a report to be completed, there might be no trained Gladue report writers available within the region or available at the time. Regardless of the organization or individual preparing a Gladue report (e.g., community organization, independent report writers, or government funded Gladue services), the capacity or ability of these organizations to complete a report was impacted by the availability of resources. In cases where the Indigenous offender requested the report, rather than the court, they had to pay out-of-pocket to have a Gladue report completed and submitted to the proceedings. Generally, information regarding availability or capacity was brought to the attention of the courts after a request or order for a Gladue report was made. This information was then noted within the record to indicate why a report was unavailable.

Necessity of reports

Courts had varying justifications for requesting a Gladue report and how judges used Gladuereports in rendering their decisions. In some jurisdictions, courts relied on previous cases from the early 2000s that indicated Gladue reports were not essential to sentencing and therefore should only be ordered in exceptional circumstances.^{Footnote 83} Furthermore, decisions limiting the necessity of a Gladue report led to some jurisdictions denying applications by Indigenous offenders for court ordered Gladuereports in recent years (0.009% or 5 cases).

Report substitutions

In some cases, even when Gladue factors were seen to be pertinent to the rendering of their decision, a Gladue report was deemed unnecessary since the information could be gathered through other means. PSRs with Gladue sections or oral or written submissions made by either the defence counsel or the Indigenous offenders to the court acted as substitutions to a Gladuereport. These substitutions, provided in most cases, had limited information regarding the Indigenous background of the offender. Courts did make notable comments regarding the breadth of information found within these substitutions, stating the information was scarce or considerably inadequate. In cases where a Gladue report was not forthcoming and substitutions were found to be inadequate, courts ordered more information to be added to PSR submissions prior to rendering a decision. Furthermore, even though courts were aware of the lack of information in the PSRs, many did not order Gladue reports to be prepared at the expense of the government as courts found that orders of this nature were to be used “sparingly and with caution, in response to specific and exceptional circumstances.”^{Footnote 84}

Pre-sentence reports

Under section 721 of the Criminal Code,⁠^{Footnote 85} PSRs are either requested by an offender or ordered by the court. PSRs are not mandatory, but they are usually ordered for more serious cases, and are almost always ordered where a custodial sentence is considered (Maurutto 2020). In 45% of the cases reviewed (241 cases), PSRs were recorded as part of the documents submitted or mentioned within the case record. Similar to a Gladue report, a judge has the discretion to decline the ordering of a PSR where there is sufficient information regarding the offender’s background or where they find no purpose in ordering a PSR. The offender also has the right to waive an order or request for a PSR.

Gladue reports declined or waived

Many cases within the review described in detail the trauma and background factors experienced by the Indigenous offender, some even quoting entire sections from the Gladue reports or PSRs. Since the preparation of a Gladue report requires that the offender agree to the preparation of the report, some offenders were noted to be reticent in providing background information, as it was emotionally traumatic for them to revisit their background and history, especially within a public court process. In some cases, the court did note that including this information on record might cause additional trauma to the offender, while some courts found that it was not in the best interests of the offender to limit their description. Notably, the review found that some offenders or their lawyers (0.013% or 7 cases), even when explicitly asked by the Court if they would like a Gladue report to be completed on their behalf, either declined or waived the Gladue report as it would delay sentencing and lengthen their detention (i.e., pre-sentencing detention).

Inconsistency of reports

Courts also noted the inconsistency and lack of national standards for Gladue reports between courts and jurisdictions. Some courts were more hesitant in using Gladue reports given the differences in training between Gladue writers as well as the characterization of offenders as “clients”, placing the Gladue writer in a sympathetic role rather than an objective one.^{Footnote 86} Specifically, when deciding whether the information provided within a PSR was sufficient to forgo a Gladue report, courts found that since there were no national standards for Gladue reports, there was no evidence or support for the claim that PSRs were inadequate.^{Footnote 87}

4.2.5 Application of Gladue principles

Regardless of whether a Gladue report was used, courts had varying degrees of application and consideration of Gladue principles in the cases reviewed. At minimum, courts applied Gladue principles by taking judicial notice^{Footnote 88} of the intergenerational trauma and other Gladue factors experienced by the offender.^{Footnote 89}

In Ipeelee, the SCC held that courts could take judicial notice of systemic and background factors negatively affecting Indigenous peoples in Canada. However, the review of cases has shown that in practice, the taking of judicial notice may have limited the analysis of how these factors apply to the case at hand. In cases where judicial notice was taken, no further analysis regarding the offender’s Gladue factors was documented. Courts provided little more than a note for the record regarding the fact that the offender is Indigenous, and that pursuant to section 718.2(e), they would take judicial notice of the background factors that may have negatively affected the offender.^{Footnote 90} Thus, there was no individualized consideration of which Gladue factors specifically applied to the Indigenous offender in front of the court. Even when there was a Gladue report, the accompanying analysis in relation to the principles was limited. The court either did not give proper attention to the offender’s particular circumstances by not considering how these factors impacted the offender and their criminal history or by not considering whether these factors afforded the offender possible alternatives to incarceration.^{Footnote 91}

In some cases courts simply stated that the offender’s Gladue factors were mitigating^{Footnote 92} or lessened their moral culpability in some way without specifying how.^{Footnote 93} While in other cases, other factors (e.g., mental health, guilty plea) were taken into consideration even where Gladue factors would have likely applied.^{Footnote 94} Judicial notice was relied on and any analysis or discussion in relation to how the principles or Gladue factors may have affected their reasoning on what would be the best disposition for the offender in the interest of the public and the administration of justice, was not forthcoming.

Many judges made use of paragraph 79^{Footnote 95} of the Gladue decision to limit or not apply Gladueprinciples^{Footnote 96} in their sentencing decision for cases that involved a serious offence and other proceedings such as a dangerous offender application. As a result, Indigenous offenders had similar sentences as non-Indigenous offenders. This occurred even when a Gladue report or other documents (e.g., psychiatric assessment, evaluation or informative document) provided to the court presented Gladue factors (e.g., alcoholism, previous trauma, physical or sexual abuse) relevant to the Indigenous offender’s actions. In some of the earlier cases, judges even overturned a lower court’s ruling stating too much emphasis was put on the offender’s Gladue factors and not enough on the principles of deterrence and denunciation.^{Footnote 97} However, it is important to note that these decisions were one of the reasons that in 2012, the SCC provided clarification in R v Ipeelee. In the last decade, there has been a shift in some courts towards making note of the erroneousness of using this particular paragraph in rendering a decision, as it is not in keeping with the goals and intentions of Gladue. This analysis for example played a role in a 2019 Ontario Court of Appeal’s decision to overturn a sentence for a more appropriate length.^{Footnote 98}

Of the cases reviewed, 23% had reduced or varied sentences based on the courts application of Gladue principles and 39% of these cases included Gladue reports. In some cases, where judicial notice was explicitly stated (0.05% or 21 cases) or a notation was made regarding the offender’s Gladue factors, sentences were somewhat reduced. Cases that resulted in a reduced custodial sentence included less total time served (e.g., 7.5 months instead of 15 months or 9.5 years instead of 10 years), staying the execution of the remaining incarceration period (i.e., sentencing the offender to time served),^{Footnote 99} or a reduced length of time for parole eligibility or probation or varying bail conditions.^{Footnote 100} Variations in sentences included sentencing offenders to conditional sentences under section 742 of the Criminal Code (where it was available) instead of custodial sentences, allowing a custodial sentence to be served intermittently within the offender’s community or suspending the offender’s sentence. In cases that involved a bail decision, some courts allowed for bail to be granted based on the offender’s Gladue factors.

The courts considered the following in their decision-making, when they included a comprehensive Gladue analysis: the availability of programming,^{Footnote 101} proximity of custodial facilities to the offender’s community, and the likelihood of rehabilitation and rehabilitative resources. If available, courts were willing to sentence the offender to healing lodges or treatment centres.^{Footnote 102} These analyses also provided considerable discussion in relation to the impact the Gladue factors had on the Indigenous offender and what would be in the best interest of all (the public, the administration of justice, and the offender) in rendering the court’s decision. In many of these cases, the courts made note of the availability (or lack thereof) of resources for the Indigenous offender for programming specific to Indigenous offenders, such as Indigenous-specific therapies, ceremonies or custodial programs (e.g., treatment centres or sweat lodges).^{Footnote 103}

Furthermore, some courts were also aware of proximity issues related to where an Indigenous offender was able to complete their detention relative to where their community was located. In some cases, it was not possible for the Indigenous offender to be detained closer to their community either due to the distance from the community to the detention centres or due to the lack of resources and/or programming at the detention centres close to their community.^{Footnote 104}

4.2.6 Differences between adult and youth Cases

Gladue reports were used in 36% of the youth cases (14 cases) reviewed within the study period, compared to 38% of the adult cases (516 cases). Half of the youth cases were sentencing decisions, the others included appeals of sentences, a bail hearing, and an application hearing to request a Gladue report. However, despite the small number of cases, Gladue principles and factors were considered or applied within youth cases more consistently than within adult cases, possibly because the principles in the Youth Criminal Justice Act directs judges to consider all sanctions besides custody, with particular regard to Indigenous youth.^{Footnote 105} In effect, even if a youth case may not have used a Gladue report, an Indigenous youth’s background and other factors may have been included through documents or statements from caseworkers, defence counsel, the police or other relevant stakeholders (Clark 2016). In cases where the Crown applied for an adult sentence, the court considered Gladue principles and factors of the youth offender. However, a youth offender may still have received an adult sentence depending on mitigating factors of the case.^{Footnote 106}

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