Benjamin Ralston – benjamin.ralston@usask.ca
What follows is a brief description of a group project that I put together for a course during the first year of the University of Saskatchewan’s Nunavut Law Program. While the context in which this assignment was created is unique, I hope this post might help spark others’ imaginations as to how a robust discussion of the Gladue analysis might be brought into the classroom.
Unique context
I was part of the team that delivered the first year curriculum of the Nunavut Law Program (NLP) during the 2017/2018 academic year. The NLP students are only now completing the ordinary 1L course load of their Juris Doctor degrees. The first year of their four-year program was something more sui generis. First year courses in the NLP included: Legal Process; Inuit History & Government Relations I & II; Introduction to Research & Research Methods; Writing & Communication I & II; Nunavut Land Claims Agreement I & II; Introduction to Professionalism; and Conflict Resolution & Reconciliation.
This group project was used as an assignment for the Introduction to Research & Research Methods course that I taught in the fall term of 2017. The course provided a general introduction to academic research, as well as an introduction to the unique ways in which research is conducted in legal studies and practice. It canvassed the formulation of research questions and plans, literature reviews, research ethics, methods and methodologies, and some of the tools available for legal and academic research. As the course preceded any black letter coursework, the focus was on ‘law-adjacent’ research rather than standard legal research.
The assignment
The students were assigned to create mock “Gladue reports” in groups of five. A Gladue report is a form of pre-sentencing report for Indigenous offenders that provides sentencing judges with the types of information that they need in order to fulfill their obligations under R v Gladue, [1999] 1 SCR 688, Sentencing judges are obliged to consider:
- The unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and
- The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage.
I put together this Gladue report assignment in order to have students practise their research skills on a project that was both concrete and clearly relevant to their overall legal education, but without requiring much familiarity with black letter law and legal research. It was an attempt at a problem-based learning exercise that would be open-ended enough to allow for creative responses from each group based on their own background knowledge, perspectives, and interests. I also wanted to encourage them to reflect on what they were learning in their Inuit History & Government Relations course in context to legal process.
The project was assigned on the first day of class. Each group was given a set of facts about a fictional character from one of the regions of Inuit Nunangat: Inuvialuit, Nunavut, Nunavik, or Nunatsiavut. Four of the fictional characters were Inuit and one was a fictional Sayisi Dene woman living within Inuit Nunangat. The fact scenarios for each group were meant to nudge the students in the direction of exploring a diversity of Gladue factors. Some but not all of the fact scenarios directly referenced residential school attendance. Others pointed students in the direction of examining how the Gladue analysis might relate to community relocations, Fetal Alcohol Spectrum Disorder (FASD), the child welfare system, out-adoption, and contemporary racism.
One major constraint on the project was that it would be difficult for students to employ the primary research method used by Gladue report writers: in-person interviews with the subject, as well as their family and community members. Still, we covered qualitative research and interviewing skills in the course and many students ended up interviewing local lawyers or individuals involved in restorative justice initiatives in order to flesh out the available alternatives to incarceration.
Students were encouraged to explore a wide variety of research methods by looking at peer-reviewed academic publications, grey literature, reports from commissions of inquiry, and case law to find information of relevance to the Gladue analysis. In terms of precedents, I provided students with access to three redacted examples of Gladue reports from British Columbia, Saskatchewan, and Ontario that included reference to secondary source research. It is worth noting that not all Gladue reports contain extensive secondary source research so I was selective about the precedents I obtained for this purpose. I wanted to ensure that the precedents were at least partially replicable in the classroom, as opposed to reports that are solely the result of interviews. I also provided the students with three examples of sentencing decisions that I felt clearly address both prongs of the Gladue analysis: R v Drysdale, 2016 SKQB 160; R v Christmas, 2017 NSPC 48; and R v Callihoo, 2017 ABPC 40.
The Gladue report project was also supported by guest lectures throughout the term. For example, Anisa White, Chairperson of the Gladue Writers Society of British Columbia, lectured the class via Skype on how Indigenous legal traditions can be incorporated within Gladue reports—a topic she has previously addressed elsewhere. Our cultural advisor, Aaju Peter, led a discussion of excerpts from Linda Tuhiwai Smith’s Decolonizing Methodologies to get students to think critically about the research process. During Restorative Justice Week, we also had representatives of the Department of Justice come in to speak to the students about restorative justice programming in Nunavut, including the Iqaluit Justice Committee. This was a happy coincidence. And while I was unsuccessful at arranging a guest lecture from someone involved in a Gladue report process elsewhere in Inuit Nunangat, a well-timed news article helped demonstrate the reports’ potential relevance to Inuit regions and was shared for discussion. Note that unlike Nunavik, Gladue reports are rarely if ever used in Nunavut courts.
The results
This group project was assessed through a combination of the final mock Gladue reports, group presentations on their work-in-progress in advance, and reflective essays mid-way through the project. The plurality of assessments allowed me to weigh in on their progress well in advance to see how the course materials were being applied in context to the assignment. This was a research class after all.
There is a broad scope as to what types of information may qualify as relevant to a Gladue analysis. While most Gladue reports are largely focused on a community’s history, the individual’s history, and what programming is available in the community, they may also engage with social science research and information on Indigenous legal traditions, among other things. I encouraged students to prepare their reports in response to the Supreme Court of Canada’s directions in R v Gladue rather than feeling constrained by the redacted precedents I provided, which were themselves diverse in their approaches and content in any event.
The students clearly took this advice to heart. One of the reports provided a very detailed treatment of how FASD relates to sentencing and the Gladue analysis, clearly linking this to the limited programming available in Nunavut. That same report also provided a detailed community history of Iqaluit, summarized in large part from the Community Histories component of the Qikiqtani Truth Commission’s Final Report. Other students contributed sections that addressed the impacts of the child welfare system on Indigenous children, for example, or that provided specific and detailed statistical information on how systemic discrimination manifests itself in specific communities. One report provided a detailed discussion of the impacts of high arctic relocations on Inuit in Nunavut and Nunavik. This was based in part on secondary sources but also included interviews with family members of one of the students in this group who experienced a relocation firsthand. More than one of the students’ mock Gladue reports touched on Inuit legal traditions as well.
The students’ reflection papers provided other interesting insights into how the Gladue analysis might be adapted to the realities of Inuit Nunangat. Several students raised concerns with the lack of Inuit-specific research available on the intergenerational impacts of the residential school system, community dislocation, and colonization. Many were uncomfortable relying on research that made broader generalizations about Indigenous experiences while being focused on First Nations rather than Inuit experiences. This was a good example of what we learned in the course about the identification of research gaps through a literature review. One student made a persuasive argument for the need to modify the name, form, and content of Gladue reports to better reflect Inuit culture and perspectives, linking this to course readings from Cindy Blackstock and Linda Tuhiwai Smith. Another who had a background in the criminal justice system persuasively argued that emphasis on community and familial dysfunction in a Gladue report could be coded as risk factors that lead to even greater levels of overincarceration for Inuit. Needless to say, I learned as much if not more than the students through administering this project.
Reflections for the future
Overall, I think this assignment was a success. Each group was able to demonstrate research skills on a project that was open-ended and interest-driven. There is enough complexity and depth built into the Gladue analysis that each group had the freedom to approach the assignment from unique angles and perspectives. The focus of the project was on developing and practising research skills, but this was accomplished in a way that I believe to be at least partially responsive to Call to Action #28.
On the other hand, the students’ inability to extensively engage in the interviewing process was a significant limitation. All groups conducted interviews regarding community-based resources that could be put forward as alternatives to incarceration and at least one group conducted interviews for the community history component of their report. Yet the investigation-type interviews conducted by Gladue report writers were not replicable in this assignment as the scenarios were fictional. This was disappointing as the students did not have a chance to practise what they learned about interview techniques as part of this project. For example, we had discussed the importance of asking open-ended questions, and clarifying and corroborating information obtained through interviews, all of which are equally relevant to the practice of law as they are to the Gladue report process.
These limitations may be addressed by having law students directly involved in the preparation of real Gladue reports through an externship program like the one that is apparently taking place at the University of Alberta. Unfortunately, in jurisdictions like Saskatchewan and Nunavut where there is no formal process for the preparation of Gladue reports, we have little choice but to use our imaginations.
Resources
Among other resources, students were assigned the following relevant readings during this course:
- Kelly Hannah-Moffat & Paula Marutto, “Re-contextualizing Pre-Sentence Reports: Risk and Race” (2011) 12:2 Punishment and Society
- Cindy Blackstock, “First Nations Children Count: Enveloping Quantitative Research in an Indigenous Envelope” (2009) 4(2) First Peoples Child & Family Review 135
- Rebecca Johnson & Lori Groft, “Learning Indigenous Law: Reflections on Working with Western Inuit Stories” (2017) 2:2 Lakehead Law Journal 117
- Hadley Friedland & Val Napoleon, “Gathering the Threads: Developing a Methodology for Researching and Rebuilding Indigenous Legal Traditions” (2015-2016) 1:1 Lakehead Law Journal 16
- Linda Tuhiwai Smith, Decolonising Methodologies: Research and Indigenous Peoples (London & New York: Zed Books, 1999) [excerpts]
- Inuit Tapiriit Kanatami and Nunavut Research Institute, Negotiating Research Relationships with Inuit Communities: A Guide for Researchers, Scot Nickels et al, eds (Ottawa & Iqaluit: Inuit Tapiriit Kanatami and Nunavut Research Institute, 2006)
- Benjamin Ralston & Christine Goodwin “R v. Drysdale: A Gold Standard for the Implementation of R v. Gladue” (2017) 33:7 Criminal Reports 114
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