Nunavut's chief justice is considering whether or not to order a formal Gladue report for the first time in the territory.

Gladue reports are documents created to inform a sentencing judge of the particular circumstances of an Indigenous offender and could include both personal and community histories of colonialism and its ongoing effects.

The reports are named after a 1999 Supreme Court of Canada decision that requires judges to consider these factors when sentencing Indigenous offenders.

But Nunavut has so far not made these pre-sentence reports part of its practice.

Defence lawyer Eva Taché-Green asked for a report for a client of hers who pleaded guilty to the charge of sexual interference — touching a child under the age of 16

The request was first made on Nov. 7 and heard in detail on Dec. 13 by Chief Justice Neil Sharkey.

This is the first time, according to Taché-Green's application with the court, that such a report has been requested in Nunavut, despite the fact that these written reports are "overwhelmingly" how this context is provided to judges across Canada.

The Nunavut Court of Justice is often referred to as a "Gladue court" because unlike a court in a southern city, it serves mainly one cultural group — Nunavut's Inuit — and the judges who live in the territory have years of experience in this context, Taché-Green's application said.

We need to deal with this issue now, not in two years, four years, 10 years. - Eva Taché-Green, Defence lawyer

Therefore, Gladue information is currently presented in Nunavut via statements in court by lawyers, pre-sentence reports prepared by Nunavut's Department of Justice community corrections division and the words of offenders themselves.

But Taché-Green argued these methods are insufficient for three main reasons: defence lawyers are not well-positioned to gather an offender's personal history; presenting the information verbally in the courtroom is detrimental to the offender; and by virtue of the fact the history is being presented by the defence the court may see it as bias.

Defence lawyer – offender interactions

Currently, defence lawyers speak with their clients about their personal histories and involvement in cultural activities and summarize what they learn in front of the judge in the courtroom.

Taché-Green argues that defence lawyers don't have enough time to gather accurate portraits as they often only meet with their clients once or twice before appearing on their behalf. This is especially true in circuit court, where the court flies to a Nunavut community to hold proceedings, often in a community hall, for a few days to a few weeks a few times a year.

The request for a written Gladue report was first made on Nov. 7 and heard in detail on Dec. 13 by Chief Justice Neil Sharkey at the Nunavut Court of Justice. (Nick Murray/CBC)

"Defence counsel are legal experts; they are not, other than by happy coincidence ... experts in any other field that would equip them for the task of gathering, synthesizing and relaying the type of information contained in a Gladue report," her application said.

Taché-Green noted there is no program to train them to do that and the majority of defence lawyers in Nunavut are non-Inuit, whereas Canada's Department of Justice refers to Gladue report writers as "empathetic peers."

Sharkey asked if Inuit lawyers and eventually judges — as current Arctic College law program students graduate and other lawyers are promoted — would not already be aware of the information that could be provided in these reports.

Nunavut's Chief Justice is considering the application for a written Gladue report. (Sara Frizzell/CBC)

"We need to deal with this issue now, not in two years, four years, 10 years," Taché-Green replied. She also noted that it would be unfair to expect Inuit lawyers to take on this kind of report writing, as criminal defence work would be their specialization.

Philippe Plourde for the Crown supported attempting a written report as long as it wouldn't cost the government.

He told Sharkey, who moved to Iqaluit (then named Frobisher Bay) in 1986, that he believed judges are well-versed in the unique histories of Nunavut communities, which include dog killings, forced relocations and residential schools.

But said that Nunavut's court is more than its experienced resident judges, it comprises deputy judges and visiting Crown lawyers who live elsewhere in Canada.

Benefits and drawbacks of a written Gladue report

Sharkey disagreed with Taché-Green that defence counsel's submissions on Gladue factors would be seen by the court as biased because the lawyer is trying to achieve a specific outcome for their client.

He said instead that he saw defence counsel as having a duty to deliver that kind of information, but Taché-Green said there were other problems with defence presenting the information.

The highly sensitive information which could include a history of family violence including suicides should not be outlined by defence in a courtroom open to the public, she said. She called it "an experience that could mean embarrassing or even retraumatizing for the offender" and something that might betray the trust between client and lawyer.

Taché-Green suggested the Gladue reports could also include rehabilitation programs tailored to the needs of the offender based on interviews with community services providers and lawyers, which would surpass what is offered in current pre-sentence reports.

Taking the time to have the reports written could further delay court proceedings in Nunavut, and the reports would come with a financial cost.

Sharkey said he didn't see Gladue reports being ordered for "run of the mill" cases, but was considering whether they would add value in some circumstances and if so whether they would be worth the potential time delay and associated costs with writing the report.

When asked if she had a Gladue report writer in mind, Taché-Green said she was waiting for the court to order one to determine who might do the job.

Sharkey took the holiday break to consider and is expected to deliver his decision any day now.