'This justice system is failing our people': Report meant to help Indigenous people in court often causes harm
In response to the Trans Mountain pipeline expansion project (also known as TMX), elders of the Tsleil-Waututh Nation in B.C. asked Will George to "warrior up" and defend their land and waterways.
"It was quite the honour to be recognized … to be selected from the community to do this very important work for our nation's well-being," George said in a recent interview.
In January 2021, George and other activists removed the wheels from a car to blockade the entrance to the TMX terminal in Burnaby, B.C., breaching a court injunction that barred blocking or impeding access to the site. For this act, he faced a criminal charge and prison time.
During his trial, George was given the option of preparing a Gladue report, which could inform his sentencing hearing. The Gladue process is the result of a 1999 Supreme Court decision and aims to address the overrepresentation of First Nations, Inuit and Métis people in the prison system. It is a way to convey contextual information to a judge about an Indigenous person's history and the ways that they have been impacted by colonialism.
But according to George and many other Indigenous people, the process is taxing, traumatizing and ultimately falls short of its goals.
George's fight and his experience preparing a Gladue report is featured in the documentary Warrior Spirit.
The Gladue report is meant to provide context
Factors that may be included in a Gladue report include: lived traumas, like surviving residential schools; experiences in child welfare and justice systems; intergenerational traumas; loss of Indigenous identity; racism; poverty; experiencing or witnessing physical or sexual violence; and drug or alcohol misuse.
The report can also include recommendations on sentencing and a plan for what might happen after sentencing, like providing an individual with access to certain supports and services.
But while the Gladue report has been an option for Indigenous people over two decades, it hasn't been used consistently — or even been a widely-known resource — until recently.
Even now, "there is a vast, vast disparity in availability of reports," said Toronto-based criminal defence lawyer Michael Luba.
Luba — who became involved as George's lawyer after his trial and first appeal, and is the brother of one Warrior Spirit's filmmakers — has spent some time researching the impact of the Gladue process. He said there is also a disparity in the type and duration of training that report writers receive, which may impact the process and outcome.
'[It] raised a lot of things that I ignored my whole life'
George says he spent three weeks participating in interviews for his Gladue report in hopes that it could help reduce his sentence. At the end of the process, Gladue writers had produced a 16-page document.
On the day of the sentence hearing, the judge said she had not received the report. George noted that it had been submitted months before. She then read it during a 15-minute break in the proceedings, he recalls.
In the end, the judge determined that the information in George's Gladue report would not impact his sentencing and sentenced him to 28 days in prison.
"[It] was traumatizing [and] raised a lot of things that I ignored my whole life," George said, looking back on the process. He added that the effort of preparing the report, only to have it be seemingly disregarded by the judge, was taxing.
It "puts [people] in such a position where they can't be at their best in these courtrooms," he said.
'This justice system is failing our people'
A 2021 study authored by York University professor Carmela Murdocca found that despite efforts to create a comfortable environment for participants, the impact of the Gladue interview process was retraumatizing well beyond those conversations.
"It's like opening up a wound, and sometimes that's difficult for someone to do," said Joyce Fossella, executive director of the non-profit Warriors Against Violence Society and member of the Lil'wat Nation. "I think, for some, they weren't ready to share a lot of it. Maybe because of the pain. Either that or they were ashamed."
Fossella served as an elder in Indigenous courts, which are part of the provincial courts system and employ restorative justice and traditional ways to seek balance and healing for First Nations, Inuit and Métis individuals found guilty of a crime.
"[The experience] depends on the person who was interviewing them," she added. She recalls some reports that felt deep and detailed, and others that only appeared to skim the surface of a person's story, containing many gaps that she feels could have been filled with further questioning. She said it's easy to tell when "they're just doing their jobs [and don't] seem to spend too much time on it."
In a series of roundtable discussions on the Canadian justice system conducted in 2019, young Indigenous participants described the Gladue process as ultimately "counterproductive," leading them to feeling labelled and having strikes against them. Participants in the 2021 study also described feeling labelled and profiled by the process.
"Was it worth it to do it if [the sentence] was reduced?" George said, reflecting on his experience. "Yeah, absolutely. I feel like it would have been worth it if it did reduce my sentence, to go through it. Would I suggest it? No."
Luba submitted a request for permission to appeal George's case at the Supreme Court of Canada level. The request was rejected.
"This justice system is failing our people," George said.
Does the good outweigh the harm?
More than two decades after the Gladue decision, the overrepresentation of First Nations, Inuit and Métis people in the Canadian prison system remains a very big problem.
"Our people are judged without all of that information [about] what that individual has gone through," Fossella said. So when it comes to the Gladue report, she sees it as valuable — "if it's done, you know, in the right way."
"Gladue reports do represent a major step forward in the criminal justice system," Luba said. "And it's important to recognize that for what it is, even if it is something that you can improve afterwards."
But ultimately, does the good outweigh the harm?
"I think you have to ask the people for whom the Gladue reports are designed, the people who they serve, the convicted people whose stories they tell," Luba said.
"If people go through a process and part of that process is harmful, but the outcome of that process is supposed to be helpful, you have to ask yourself: Can we get rid of the harmful part, please?"
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