Gladue reports in the classroom: a group project from the Nunavut Law Program

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Koojesse Inlet, Iqaluit in late September 2017

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:

  1. The unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and
  2. 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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“Inuktitut word of the week” board in the NLP classroom, maintained by the Nunavut Law Students Society
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Indigenous Law and Procedure in Action: Vancouver Island Esquimalt/Ditidaht Hunting Case

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Roosevelt Elk

The TRC Calls to Action speak to the importance (for law students, lawyers, doctors, nurses, journalists, bureaucrats, citizens) of learning about:

  • Treaties
  • Aboriginal rights
  • Indigenous law
  • Aboriginal-Crown Relations

If you are looking for examples of the application of Indigenous Law and procedure in a contemporary context, then here is a great case for you, “In the matter of R v. Joseph Thomas and R v. Christopher Brown and Esquimalt and Ditidaht Nations

The case started in BC Provincial Court, involving two men who were charged with hunting/poaching in violation of the BC Wildlife Act.  I first heard about the case in a newspaper report, and was completely taken with it!

This case has been positively hope-inducing in me (a less than common feeling for one who spends much of her time teaching Canadian Criminal Law).  Below is a copy of the ILRU Case Note, followed by a few thoughts on ways this case might be used in a variety of law school contexts/courses.

ILRU Case Note: In the matter of R v. Joseph Thomas and R v. Christopher Brown and Esquimalt and Ditidaht Nations

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Map of BC First Nations

Context: Two Coast Salish men from the urban Esquimalt nation (in Victoria) were charged by conservation officers with two counts of poaching under the BC Wildlife Act. The two men initially asserted what they believed was a treaty right to hunt on unoccupied Crown land. However, the Ditidaht [1] (in whose historic territory the Esquimalt men had been hunting), were concerned about over-hunting of Roosevelt Elk.  They were in favour of conservation, and the conviction of poachers.

As things unfolded, it also became clear that the two Esquimalt hunters had not sought permission from the Ditidaht to hunt in their territory, nor had they complied with Indigenous conventions in the manner of their hunt, breaching both Ditidaht and Esquimalt legal principles, and bringing shame on the communities.

Application: The case was heard in First Nations Court by Justice Marion Buller (now Chief Commissioner for the MMIWG Inquiry). With the consent of the Crown, the accused and the two concerned Nations, the Court made space for the Esquimalt and Ditidaht communities to work together, using their respective laws and procedures, to resolve the case.

The intial hearing, drawing on Coast Salish procedures for dispute resolution, involved a larger number of interested parties, including Elders, Chiefs, Counsellors and other members of the Esquimalt, Cowichan and Ditidaht nations. The communities spoke to not only current treaty and provincial law, but also to older laws between the two nations respecting hunting. They agreed that seeking permission from the other community was a fundamental law that continued to have force. The hunters accepted responsibility for their conduct, and agreed to accept the resolution that would be determined by the nations.

A number of procedural steps were necessary, as the violation of law here imposed responsibilities on not only the two hunters, but the Esquimalt community as a whole. As a result, the hunters were required to visit each household in Esquimalt to tell them what they had done, and to invite them to a meeting, which would be held in the Esquimalt Long House and involving people from both nations. At this meeting (180 people in attendance), representatives of the Ditidaht were wrapped in blankets and presented with gifts as a way of acknowledging the harm that was done, and committing to the re-establishment of good relations. The hunters are to refrain from hunting for a year, and are required to do work for the community, doing maintenance and service at the longhouse at least twice a week for the year. This was to function not as punishment, but as an opportunity to be a model for youth, and to demonstrate the continuing obligations and operation of Coast Salish and Ditidaht law.

Significance: This case is a powerful and hopeful example of the application of Indigenous law in ways that provide a meaningful resolution to a very real problem. A second important dimension of this case is that it is an example of intersocietal law. That is, this is not only a conflict over hunting, but a conflict between communities from two distinct legal orders. It shows the power of Indigenous law and procedure to create the conditions for people from different legal traditions to come together to work through a shared problem in ways which link in appropriate decision-makers, who are positioned to better identify the challenges, and construct meaningful solutions. Note that the procedures also supported an increase in legal literacy (increased familiarity in each community with the legal terrain of the other), and the building of community connections.

Even more powerfully, in the process of resolving this specific hunting/poaching claim, the two communities were able to identify a bigger systemic challenge:  given the pattern of land development in this territory, the Esquimalt do not have access to many areas in which to exercise hunting rights. There is thus a pressure to hunt in the other territory with potential to impact on wildlife.

The result of the case has thus also been that the two First Nations have begun discussions aimed at developing protocols to govern hunting in Ditidaht territory by Esquimalt members, to support the ability of people in urban settings to have access to hunting.

In short, what could have otherwise been a conventional hunting sentencing case instead has produced an outcome which:

  1. Attends to questions of human safety (drawing on indigenous laws and protocols governing ways, times, and places in which hunting can happen),
  2. Attends to questions of conservation (drawing on Indigenous laws related to stewardship of land and animals),
  3. Attends to questions of inter-community conflict, drawing on the point of contact as an occasion to work together to collectively address a shared problem.

[1] The Ditidaht and the Pacheenaht people speak closely-related dialects of a language called Nitinaht or “Ditidaht.” Ditidaht, is one of three closely-related languages (Nitinaht, Makah, and Westcoast or Nuu-chah-nulh) forming the South Wakashan sub-group of the Wakashan Language Family. The Nitinaht and Makah languages are much more closely related to each other than they are to Nuu-chah-nulh. From http://www.ditidaht.ca/.

ADDITIONAL RESOURCES:

  • one could supplement this case through reference to two ILRU reports:  Coast Salish Legal Traditions Report; ILRU, Coast Salish Civil Procedure Report
  • There are some helpful video talks available on line on Coast Salish Legal Traditions & the Canadian State by Professor Sarah Morales.

THOUGHTS ON USING THIS CASE IN THE LAW SCHOOL CONTEXT

  • This case is great for teaching “Sentencing”.   It was really wonderful to be able to give students some examples of sentencing cases that did not induce despair.  It was also useful for helping them see that some cases may involve MORE work for offenders, rather than less.  Certainly, the students would agree that it would not be ‘easy’ to have to go door to door in the community to let people know about a wrong you had done.  The case also made visible the ways that many people in a community could be brought together in order to produce a meaningfully better outcome.
  • This case is great for troubling the divide between Criminal/Provincial offences, particularly in the context of Indigenous Laws.  To call a hunting case ‘provincial’ is in many ways to fundamentally misconstrue the depth of relationships between indigenous peoples and animals.  In many contexts, it is perhaps most appropriate to understand the relations between many Indigenous peoples and animals through the language of treaty (this is visible in Westcoast Nation stories about the Salmon People, or in Plains stories like The Buffalo Child).  This is visible in this hunting case, where Esquimalt and Ditidaht parties agreed that, in the past, a second violation of laws around hunting could have resulted in the punishment of death.  This indicates the importance of Indigenous laws pertaining to human/animal relations.  Michael Ashe’s 1989 article on asche-wildlife-cpp-1989 might be a useful resource for supplementing such a discussion.
  • This case is great for exploring Conflict Resolution in the context of International Law.   On the one hand, this case could be treated as simply as instance of alternative measures within Criminal Law.  However, there are powerful reasons to see this as rather an example of conflict at the intersection of THREE legal orders (BC/Canadian; Esquimalt; Ditidaht).  What we see in some ways is the visionary willingness of the BC Court System to step to the side, to make space for the other two first nations to draw on their own legal procedures and institutions to solve a challenge that touched deeply on legal obligations and responsibilities in those nations.  The eventual solution is one that accords with the needs of all three legal orders.  From my perspective as a reader, it seemed that the Esquimalt and Ditidaht legal orders contained powerful problem solving resources, ones that provided a very successful resolution, one that is hard to imagine within the more conventional boundaries of the BC Wildlife Act. The case provides a great model for dispute resolution between conflicting legal orders.