Community legal clinics in the south-west region of Ontario, along with Thunder Bay’s Kinna’aweya legal clinic and the Income Security Advocacy Centre, have joined together in a Gladue Briefs Project with the aim of ensuring that administrative tribunals make decisions that better take into account the circumstances of Indigenous people who appear before them.
R. v. Gladue is the leading court decision on the importance of considering Indigenous heritage when determining the appropriate sentence for an Indigenous person convicted of a criminal offence. In that decision, the Supreme Court of Canada acknowledged that “the circumstances of Aboriginal offenders differ from those of the majority because many Aboriginal people are victims of systemic and direct discrimination, many suffer the legacy of dislocation, and many are substantially affected by poor social and economic conditions.”
Specially-trained writers draft “Gladue Reports” for Indigenous people involved in the criminal justice system for use at various stages in the legal process. People who are being sentenced must agree to take part in what is often a long and difficult process to arrive at a report.
A number of “Gladue factors” are considered when constructing a Gladue Report, including:
- Relationships with family and community
- Experiences of individual, inter-generational and/or community abuse and violence
- Experience with and impacts of residential and day schools
- Socio-economic issues such as poverty, unemployment and homelessness
- Loss of identity, culture and language
- Dislocation from the land
- Experiences of marginalization, oppression, colonization, and racism
- Physical and mental health
- Availability of support networks.
Systemic background factors like these are just as relevant for Indigenous people involved in other aspects of the justice system as they are in criminal issues, and should be considered in matters dealt with by administrative tribunals, where community legal clinics often appear. For example, if the Social Benefits Tribunal is hearing an appeal from an Indigenous person who has been denied Ontario Disability Support Program benefits, it would be important for the Tribunal to hear about how the person’s physical and mental health, ability and willingness to obtain treatment, as well as healing and recovery prognosis are impacted by inter-generational trauma, colonization and systemic racism.
These issues are also important at tribunals like the Criminal Injuries Compensation Board and the Landlord & Tenant Board.
The Gladue Project
The goal of the project is to have “Gladue Briefs”, which are shorter versions of the traditional Gladue Report, accepted as evidence at the tribunals. This will allow for a more comprehensive consideration of an Indigenous person’s issues at appeal. As well, the process of creating the report will also support Indigenous people to manage their current legal issues in a way that will prevent similar or future conflicts with other legal systems (e.g. child welfare, criminal justice, corrections).
Clinics participating in the project have hired a very experienced Gladue writer/educator, Hollee George. Ms George’s work will support the introduction of Gladue principles in core areas of Clinic Law practice by:
- Developing and delivering extensive training for legal clinic staff so they are familiar with when and how to use Gladue in a culturally appropriate and sensitive way in their casework with Indigenous clients
- Working with Indigenous clients who want to go through the process of creating Gladue Briefs
- Working with tribunal staff to build their understanding of Gladue factors and their impact on Indigenous persons.
Discussing systemic background Gladue factors is a traumatizing undertaking for the client as well as the Gladue writer. With this in mind, the process of creating the briefs will be carried out from a healing perspective.
Using these briefs at a hearing will reduce the trauma that the tribunal process causes to the Indigenous person and will contribute to a more comprehensive consideration of their individual issues that are relevant to their legal matter.