Mona O’Brien, an Indigenous court worker with the Mi’kmaw Legal Support Network (MLSN), says the pandemic has naturally resulted in far fewer Gladue reports being prepared and presented to Nova Scotia’s provincial and superior courts.
O’Brien, who started with the MLSN in 2012 as a report writer, was one of several speakers at a Jan. 15 online Gladue roundtable put on by the Nova Scotia Barristers Society (NSBS) and its TRC (Truth and Reconciliation) Working Group.
“We know that Gladue reports have had somewhat of an impact in the provincial and Supreme Courts here in Nova Scotia since 2005,” O’Brien told participants. “We are seeing an increase. Over the past three years, our agency, the [MLSN], has been fortunate to build some good relationships within … the provincial Department of Justice. So, we’ve seen an increase in reports being ordered.”
From April 2018 to March 31, 2019, the MLSN prepared 111 Gladue reports for the applicable courts. From April 2019 to March 2020, it prepared 131. But then COVID-19 hit in March 2020, and from April to the present, only 60 have been completed, with another 20 in progress.
As of 2016, Aboriginals made up 5.7 per cent of Nova Scotia’s population, with most respondents identifying themselves as First Nations or Métis, according to Statistics Canada.
Gladue reports, supplemental tools that may be used in the sentencing of Indigenous offenders, stem from the Supreme Court of Canada’s ruling in R. v. Gladue [1999] 1 S.C.R. 688 — a landmark decision outlining the problems Indigenous offenders face due to a clash between the Canadian justice system’s “traditional … ideals of deterrence, separation and denunciation” and Aboriginal “ideals of restorative justice.”
The reports were developed to address the overrepresentation of Indigenous people in the nation’s prison system.
According to Justice Canada, Gladue “requires sentencing judges to consider systemic and background factors of the offender, and the types of sentencing procedures and sanctions that are appropriate in the circumstances.”
During the roundtable’s question period, O’Brien was asked how the health crisis will impact Gladue reports going forward. She said the creation of reports has been picking up as courts adapt in efforts to resume operations.
“We come from a long line of adversity, and we are solutions-based, and so often times what that translates to is having to do things in a different way to get a different result," she said. “We have some very creative Gladue writers that [have been doing] social distancing visits with clients. It’s certainly increasing the amount of time required to produce a Gladue report for the courts. We are seeing now that there’s been an influx in the Gladue report requests coming into our agency, which then puts pressure … on the agency because we’re working with the same number of Gladue writers.”
O’Brien went on to say that limitations caused by the health crisis have taken a toll on the mental health of “clients that are already involved with the … criminal justice system.”
She said that, in the current environment, Gladue writers are having to pick up some slack.
“We’re seeing supports that have been in place before, in person, now not available but are available online, and sometimes people just don’t have the capacity to access those supports and services. So, we have more and more people requiring the service but less and less services available. … What we’re seeing is that writers are spending more and more time with the client in the absence of somebody to talk to that can hold information in confidence with them. So, we’re seeing longer interview times, more interviews being held, tougher subjects being discussed.”
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