GLADUE: DRESSING THE WOUNDS
Meet the people behind the reports
He was there when they attacked the boy in a north Edmonton parking lot.
He participated, he admits, in causing 17-year-old Ashton Cardinal’s death.
“I wish I can take back that night and not be there,” Terence Christopher Lewis told the writer assigned to prepare a Gladue report on his Indigenous background that would be submitted to the judge who would decide his fate.
The 31-year-old man from Onion Lake First Nation was handed a six-year sentence on Aug. 30 after he pleaded guilty to manslaughter for his part in a 2017 fatal assault on Cardinal. Two other people are awaiting trials in connection to the teen’s killing.
As an Indigenous person, Lewis has a right to present court with a report on how background factors may have contributed to his ending up with a criminal conviction.
Judges consider the history of every offender, but a 1999 Supreme Court of Canada decision, R. v. Gladue, imposed a duty on judges to consider the unique systemic or background factors that may have contributed to an Indigenous person’s criminal behaviour, as well as sentencing options that may be appropriate because of the person’s heritage and specific needs.
Decades later, the incarceration rates for Indigenous people remain high in provincial correctional facilities; though only six per cent of Alberta’s population is Indigenous, they account for 40 per cent of adult inmates in provincial jails.
But the number of Gladue reports produced annually in Alberta in the last five years surged from less than 20 to more than 700 after the province began commissioning written reports. In an effort to ensure that judges are made aware if Gladue principles — including factors such as residential schools, child welfare policy and intergenerational trauma — are present in an offender’s background, the province began hiring writers, who are often Indigenous themselves, to prepare written reports.
The writer who spoke to Lewis identified a number of factors: he has close family members who are residential school survivors, he suffered intergenerational trauma, and he was both sexually and physically abused as a small child. Lewis told the writer he has drug and alcohol addictions, and that he was an alcoholic by age 12.
As the judge sentencing Lewis delivered his decision, he had to determine if the “accumulation of issues” Lewis faced contributed to him becoming embroiled in a homicide.
“In my view on this evidence, the answer clearly is yes,” Court of Queen’s Bench Justice Paul Belzil ruled, describing the report as “tragic.”
The 20-page, single-spaced document offers insight not only into Lewis’ personal history, but also examines possibilities for his future. He has support from family and community, who are ready to help him rehabilitate upon his release. Dozens of treatment and support resources that the writer suggests as appropriate restorative justice options are listed at its conclusion.
Lewis hopes to train as a chef and believes he can maintain his current sobriety. He wants to be a good father to this three children.
“I want to take responsibility for what I have done, and then I want to be there for my kids. I have already lost so much from being in here,” Lewis told the writer.
‘THERE TO LISTEN’
To address the growing demand for Gladue reports, Alberta Justice now has 38 writers on contract.
The department hires writers who have a direct affiliation with the community the offender is from — a strategy officials say has been more successful, given the writers’ understanding of and ability to connect with sources in the community.
“It is very personal work. You place yourself in the middle of a person’s story, often,” says Amy Quintal, one of the more than three dozen writers.
Quintal and four other writers gathered in a boardroom near the Alberta Legislature this summer to speak about the work they do providing information to judges about how the fallout from Canada’s legacy of colonialism may have contributed to bringing a person before the courts.
Writer Kristen McArthur has experienced some of the same intergenerational traumas that she’s heard about from her clients, including a history of residential school attendance in her family.
“I know all of the effects of that, and so when I’m going to speak to someone, I have a lot more compassion and that level of understanding going right into it,” says McArthur. “I think that people can sense that, they can feel that energy that people are putting out there. You’re not going to judge them and they know that. You’re there to listen.”
Though the writers’ primary purpose is to get information for the sentencing judge by asking a set list of questions, they at times encounter clients who have never told anyone about childhood abuse or trauma they have suffered before, or people who have never had any kind of a therapeutic relationship.
“Some people say after that they feel really good, it feels good to say all these things. For other people it’s really heavy and intrusive, and it’s hard for them to talk about their personal history,” says writer Brandie St. Martin.
The in-person interview the writer conducts with their client is key to the report, but writers also seek out family and community members who can provide more context, pull previous reports and assessments prepared about the person, and do research on the person’s community, often using census data, to get a better understanding about housing conditions, poverty and employment levels.
The writers also can’t ask the offenders leading questions, so if their client doesn’t know their own family history, then the judge won’t end up hearing about it.
And though recognition about the effects of certain aspects of colonialism, especially residential schools, is growing, other parts, such as displacement, aren’t as well understood or acknowledged.
“Residential schools are the most tangible thing we can look at and go ‘that’s the wound,’ but it was way more than residential school,” says writer Jackson Mirasty.
‘GET OUT OF JAIL FREE CARD’
The writers say they have encountered widespread misconceptions about Gladue reports, not only among their clients, but also in the general public, media and sometimes even among lawyers. They’ve heard the reports characterized as a “get out of jail free card” or as a promise of a “racebased discount.”
“This is not a discount on a jail sentence. This is not about doing something for Indigenous people that we don’t do for non-Indigenous people,” says Catherine Bell, a University of Alberta professor who researches Indigenous rights.
Bell is a member of a committee initiated by Alberta’s provincial and Queen’s Bench courts, and also teaches a course alongside criminal lawyers for U of A law students on Gladue sentencing principles.
The roots of the Gladue report date back to a 1996 amendment to the Criminal Code that directed restraint be used in sentencing, and that all available sanctions other than imprisonment should be considered for all offenders. The amended section noted restraint is particularly important when sentencing Indigenous offenders. The Gladue decision followed in 1999.
Failure to consider Gladue factors in sentencing an Indigenous person is an error in law and grounds for appeal, though the person can waive their right to having a report prepared. It’s up to each jurisdiction in Canada to determine how to ensure Gladue principles are being presented to the courts, according to the federal Department of Justice.
GLADUE REPORTS PLAYING BIGGER ROLE IN COURTS
The number of Gladue reports ordered annually in Alberta wasn’t tracked prior to 2013, according to Alberta Justice. For years after the 1999 ruling, Gladue factors were included as a “short summary” tacked onto a normal pre-sentencing report prepared by a probation officer, or a defence lawyer would offer oral submissions on the factors in court.
But in the last five years, the numbers have steadily increased.
■ 2013-14: Approximately 17
■ 2014-15: 264
■ 2015-16: 452
■ 2016-17: 623
■ 2017-18: 705
The growth in Gladue reports reflects a change Edmonton criminal defence lawyer Derek Anderson says he’s seen play out in the courtroom.
“Ten years ago, it wasn’t really something that was done, certainly not commonly. It really is a matter of course now. You really do have to opt out of it on the record,” says Anderson.
“Generally, if not universally, it has been a positive impact on my clients,” he says. “Any time the court can sentence with more information about the offender, the sentence is going to be, or should be, more appropriate.”
Anderson says he’d like to see more resources directed to increasing the number of writers so that the reports can be completed faster and used earlier as an intervention tool, rather than being prepared primarily after someone is already being sentenced for a serious offence and facing a lengthy term of imprisonment.
Gladue factors are starting to be incorporated at the bail stage in Alberta, according to Bell.
Bell says that, no matter what’s in the reports, change can’t happen unless there is adequate infrastructure in place to allow offenders to actually access the community supports and resources they need to rehabilitate and avoid repeating criminal behaviour.
“It’s one thing to say that you want to find alternatives to incarceration that meaningfully address the cause of criminal behaviour, it’s another thing to have programming available,” she says.
Even if a judge seeks to impose alternatives to traditional incarceration as a sentence, or to include rehabilitative or culturally relevant release conditions, there may be a lack of funding for the necessary community support and programming that would enable the offender to rehabilitate.
The failure to actually impose alternative sentencing measures in many cases is something writer Orest Zwozdesky sees as a lost opportunity for potential reconciliation.
“The court’s trying to do the best that they can do, but they’re still coming from this model of looking at ‘we need to address the crime that’s been done here’ and not looking at repairing the harm that’s been done to people,” Zwozdesky says.
ALBERTA BOUND
Even though it’s been nearly 20 years since the Supreme Court decision on Gladue, there’s little data to show how Gladue factors are or aren’t working across Canada.
“We, at this point in time, have no systematic national data on how the Gladue requirements are met nationally in different jurisdictions across the country,” says Jane Dixon, a professor at Carleton University’s department of law and legal studies, who is researching outcomes of lower court sentencings where Gladue factors are introduced.
Dixon is heading up a national working group on Gladue reports that has representation from every Canadian jurisdiction except Alberta. She plans to roll out a national pilot in 2019 that would see all participating jurisdictions adopt a common template for preparing the reports.
She was “astonished” when she learned while attending a conference in 2016 that Alberta doesn’t make criminal records available to writers as a matter of course. She said that, everywhere else in Canada, writers automatically receive the document to help them in preparing a thorough and accurate report on the offender’s background.
In an email, Alberta Justice spokeswoman Ina Lucila says Alberta writers can access criminal records if there’s a specific reason they need it, but the decision to not routinely provide them followed discussion by the Gladue committee and the writers themselves.
“There was concern, which was also expressed by a majority of the writers, that this would create a preconceived perception of the offender, and could unconsciously impact the way they interview and write the report,” she wrote in the email.
There is some discord about how Gladue reports are being prepared, even within Alberta. The founders of Whispering Wolf Communications, which was writing reports for clients who appeared in court in Wetaskiwin, say they lost their contract to write reports after meeting with Justice Minister Kathleen Ganley, when they raised concerns about criminal records not being accessible, as well as other issues they saw with the province’s process.
Alberta Justice said in an emailed statement that the non-renewal of Whispering Wolf’s contract was not related to their questions about criminal records.
Luci Johnson, a support worker for the Samson Cree Nation and one of the Whispering Wolf founders, says she and her colleagues have continued to prepare Gladue reports for people in their community despite not receiving provincial funding for the work.
“We don’t need Alberta Justice to tell us what to do in our communities. Just do it,” she says.
‘THAT STICKS WITH YOU’
As the demand for reports grows, so too does the volume of traumatic stories that the writers must grapple with.
Mirasty recalls speaking to a youth who shared his experiences as the victim of childhood sexual assault. He asked the teenage boy if talking about what happened to him was helpful.
“He told me, verbatim, ‘Every time I tell this story I want to die,’ and he was 15,” Mirasty says. “It’s just really heavy for them, and it’s on us, too.”
The writers each have their own way of coping with hearing disturbing accounts of sexual and physical abuse, intergenerational trauma and other troubling accounts.
But amid the stories of despair, there’s hope.
The writers also encounter people who, between the time they were criminally charged and meeting with a report writer, have been able to make positive changes in their lives: getting back in touch with family, seeking counselling, or help with addictions.
“We’re always learning from our clients. Despite the unimaginable trauma that they went through in their lives, there’s so much goodness in them,” St. Martin says.
“I find that our clients are so inspiring sometimes.”
I think that people can sense that, they can feel that energy that people are putting out there. You’re not going to judge them and they know that. You’re there to listen.