Gladue reports in Québec

Under the Criminal Code, when sentencing an offender, the court must consider all sanctions that are applicable and reasonable under the circumstances in light of the harm done to victims or the community.

The Supreme Court of Canada has indicated that the judge must consider the following elements, particularly when the offender is an Indigenous person:

• unique systemic or background factors that may have brought the person before the courts;
• procedures and sanctions appropriate to the person’s Indigenous heritage.

The intent is not to automatically reduce prison sentences for Indigenous offenders, but to apply individualized assessment as a way of determining a fit sentence.

Any Indigenous person may request a Gladue report at the time of sentencing.

There are three types of reports:

• full report
• summary
• interim release plan

All three are aimed at reducing the overincarceration of Indigenous people. They vary in terms of how much information is provided and how it is presented.

In Québec, it is the court that orders Gladue full reports and summaries. An interim release plan for someone awaiting trial is drawn up at the request of the person’s lawyer.

The drafting of Gladue reports and summaries is entrusted to Indigenous organizations and is done by people with the proper training. They must have a minimum knowledge of the accused’s culture and community and of the resources available in the community and region.

The interim release plan is not necessarily drafted by a Gladue report writer. It can be drawn up by a courtworker or a justice committee coordinator, for example.

The Gladue report and summary inform the court about the Indigenous offender’s history and current situation. They also point out unique systemic or background factors that may help to explain why the person is standing before the courts.

Both documents present alternatives to detention that take these factors into account. Such solutions must be available, whether in the person’s own community or elsewhere, and must serve to rehabilitate the offender primarily through Indigenous culture and healing.

The Gladue summary dwells less on the offender’s past circumstances than the full report. It focuses more on the person’s current situation (networks, strengths and skills, family and community responsibilities, connection to culture and community, employment or education, motivation, etc.) and the help they can get quickly.

Here are the key differences between the two reports:

The interim release plan is based on the principles set out in the Gladue summary or report. However, it does not examine the offender’s history and background in depth.

It may be requested by the accused’s lawyer when the prosecution opposes pre-trial release. It contains no reference to the crime, since at this stage the accused is still presumed innocent. What’s more, the notion of reparation cannot be present, since there has been no acknowledgment of guilt.

The Gladue interim release plan focuses on helping the accused maintain good conduct, appear in court when required, and stay out of trouble during the judicial process.

Since at this stage the person is still presumed innocent, in order not to deprive them of their right to liberty, the timeframe for an interim release plan is shorter than the timeframe for a Gladue report or summary. It can even be proposed verbally.