R. v. GH, 2020 NUCJ 21

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. GH, 2020 NUCJ 21 Date: 20201005 Docket: 08-19-416 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: G. H. ________________________________________________________________________ Before: Chief Justice Sharkey Counsel (Crown): P. Plourde Counsel (Accused): E. Tache-Green Location Heard: Iqaluit, Nunavut Date Heard: December 13, 2019 Matters: Application for the court to order the production of a Gladue report under Criminal Code of Canada, RSC 1985, c C-46, s. 723(3) REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

DISCLAIMER PAGE Restriction on Publication: By court order made under

section 486.4 of the Criminal Code, “anyinformation that could identify the complainant or a witness shall not bepublished in any document or broadcast or transmitted in any way.” Anonymized Judgment Disclaimer: This judgment has been anonymized to comply with legislativerequirements or at the discretion of the authoring Justice to protectvulnerable parties. Letters have been assigned at random. [1] This ruling follows on an application that was made in December 2019. I denied the application with reasons to follow.

These arethose reasons. [2] The Applicant requests that the Court order the production of a Gladue report. He suggests that formal Gladue reports arenecessary if this Court is to apply the remedial provisions of

section 718.2(

e) of the Criminal Code in the manner and spirit directed bythe Supreme Court of Canada in R v Gladue, (SCC), [1999] 1 SCR 688 and R v Ipeelee, 2012 SCC 13. [3] In Canada, judges are required, by virtue of

section 718.2(

e) of the Criminal Code and R v Gladue, to consider the circumstancesof Indigenous offenders who are before them to be sentenced. Since the release of the Gladue decision in 1999, a type of pre-sentencereport known as a Gladue report has become a common way of conveying details about offenders’ circumstances to sentencing judges. [4] Indigenous offenders have the right (unless it is expressly waived) to the presentation of Gladue information and application ofGladue principles at their sentencing hearing.

However, they do not have the right to the production of a publicly funded Gladue report inadvance of sentencing. [5] Nonetheless, in many jurisdictions across Canada there are Gladue programs in which independent and knowledgeable writersinterview offenders and other community members, producing Gladue reports that educate sentencing judges. Nunavut is not one ofthose jurisdictions.

To date, the Government of Nunavut has not implemented a program to connect Indigenous offenders withknowledgeable Gladue writers. [6] Nothing formally prevents an offender in Nunavut from funding the production of a Gladue report privately. However, practicallythis almost never occurs due to the associated cost. The Applicant’s situation is an exception. After I refused this application and

indicated reasons would follow, counsel proceeded to fund and file a Gladue report. [ 7 ] Notwithstanding the Applicant’s situation, because Nunavut lacks a publicly funded Gladue writing program, Gladue information about Indigenous offenders in Nunavut usually comes before the court via Defence submissions, pre-sentence reports, [1] and occasionally comments directly from offenders.

This practice accords with the Supreme Court of Canada’s direction in Ipeelee : “Judges may take judicial notice of the broad systemic and background factors affecting Aboriginal people generally, but additional case-specific information will have to come from counsel and from the pre-sentence report” (at para 59, qtg Gladue at paras 83-84 ). [ 8 ] Counsel for the Applicant argues that these sources of information are insufficient and that a Gladue writer would provide a qualitatively superior overview of the systemic factors that have played a role in bringing the offender before the court.

She contends that non-Inuit legal professionals in Nunavut “don’t know what we don’t know.” Her point is well taken. [ 9 ] Counsel suggests that in this case, the solution to these Gladue deficiencies is for this court to order the production of a Gladue report. For the reasons that follow, I do not agree. [ 10 ] My first point of disagreement with counsel involves the expertise of the Gladue report writer in a Nunavut context.

I do not doubt southern Gladue writers’ wealth of knowledge respecting the colonial experience and culture of the First Nations and Métis communities which they serve, nor do I question their talent for presenting information about the people who come before the court within that context. However, I would also note that these writers are typically either members of the Indigenous communities which they serve or they have strong social and professional connections to those communities.

Because there is no Gladue writing program in Nunavut, there are no Gladue writers here with those same community connections that are so key for southern Gladue writers. [ 11 ] However, non-Inuit legal professionals in Nunavut are not without access to knowledgeable cultural and community resources. The Legal Services Board of Nunavut (LSB), the entity charged with providing legal aid services in the Territory, has a long and distinguished history of collaboration and cooperation with Indigenous Court Workers in representing clients.

Historically the Court Workers, who are based in the communities, have served as invaluable resources and providers of community and individual knowledge to counsel. The intimate cultural knowledge and information Court Workers can provide to the Court is endless. This under-used resource may well be integral to the development of a Gladue program in the Territory.

I will leave this discussion to more knowledgeable players within the LSB and the Government of Nunavut. [ 12 ] Given the above, 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.

If we rely on southern Gladue report writers, we risk remaining ignorant of the specific cultural knowledge already present in existing community resources like Indigenous Court Workers. [ 13 ] Indeed, as we know from the history of colonization in Nunavut, a pan-Indigenous approach to government programming is ineffective and does not meet the specific needs of Inuit.

As Rebecca Kudloo, president of Pauktuutit Inuit Women of Canada, said in relation to the national inquiry into missing and murdered Indigenous women and girls, “A lot of times we're lumped in with First Nations and we constantly have to tell the government that up North is different.” [2] [ 14 ] Recommendation 16.28 of the MMIWG Final Report, which bears repeating in its entirety, underscores this point by noting that this failure to provide Inuit-specific services cripples Gladue principles. 16.28 Given that the failure to invest in resources required for treatment and rehabilitation has resulted in the failure of

section 718.2 (

e) of the Criminal Code and the Gladue principles to meet their intended objectives, we call upon all governments to invest in Inuit-specific treatment and rehabilitation services to address the root causes of violent behaviour. This must include but is not limited to culturally appropriate and accessible mental health services, trauma and addictions services, and access to culture and language for Inuit.

Justice system responses to violence must ensure and promote the safety and security of all Inuit, and especially that of Inuit women, girls, and 2SLGBTQQIA people. [ 15 ] My second point of disagreement with Applicant’s counsel follows from the first: I am not convinced that the remedy for the informational deficiencies identified by counsel is a Gladue report from a southern writer. I am reluctant to create more delay for

offenders by ordering reports not authored by those with intimate connections to Nunavut communities. I will reiterate my agreement with counsel that non-Inuit legal professionals “don’t know what we don’t know” about the Inuit experience of colonization.

However, I am not convinced that southern Gladue writers can enlighten us to the material extent necessary to justify an order requiring the production of a report. [ 16 ] When the Government of Nunavut implements a Gladue report writing program employing empathetic peers based in Nunavut communities as writers, I will be pleased to trust those report writers to fully enlighten the court.

The colonial court system in Nunavut can only benefit from further and better cultural and historic information about the individuals who appear before it. [ 17 ] One reason it is important to have Gladue information about an offender before the court is because the Nunavut bench continues to be populated by non-Inuit judges. Change is, however, on the horizon.

The persistence and talent demonstrated by current and upcoming Inuit counsel indicate that we can look forward to a predominantly Inuit bench in the future. [ 18 ] Until then, I rely on the expertise of Indigenous Court Workers, Inuit elders, resident counsel, and resident probation officers. Dated at the City of Iqaluit this 5th day of October, 2020 ___________________ N. Sharkey Chief Justice Nunavut Court of Justice