Indispensable sentencing tool or inconsistent sentencing technique?: Gladue pre-sentence reports in Canada

Two decades have passed since section 718.2(e) of the Criminal Code of Canada was enacted and subsequently interpreted by the Supreme Court of Canada in the landmark case R v. Gladue (1999, 1 SCR 688). This section requires judges to consider the unique systemic and background factors of an Aboriginal offender during the sentencing process to establish a proportionate sentence, thereby emphasizing restorative justice. Since the Supreme Court’s judgement in Gladue, a special form of pre-sentence report, known as a Gladue Report, has emerged to provide a tailored, comprehensive assessment of an Indigenous offender’s circumstances to assist sentencing judges in complying with their statutory obligations. Reviewing Gladue and subsequent jurisprudence, as well as numerous reports, the author argues that Gladue Reports are not being administered consistently across Canada, with many Aboriginal offenders not receiving the proper consideration into their unique circumstances, known as Gladue factors. This constitutes a pervasive systemic problem of unequal access to justice. Analyzing the current use of traditional pre-sentence reports and the various models to produce and deliver Gladue Reports across jurisdictions, this thesis maintains that Parliament of Canada should consider amending the Criminal Code and develop a national framework for Gladue Reports to be made available for all Indigenous offenders.