Lack of Indigenous Identity Verification Raises Concerns in Criminal Justice System

Concerns are mounting among legal advocates and Gladue report writers about the absence of a formal process to verify Indigenous identity claims when defendants seek Gladue consideration during sentencing in Canadian courts.

“It becomes this perceived benefit that it’s somehow a ‘race-based discount’… a term that’s been thrown around in the last few years is a ‘get-out-of-jail-free card’ type thing and it’s absolutely not,” said Tamara (Baldhead) Pearl, an assistant professor at University of Alberta’s Faculty of Law.

The landmark 1999 Supreme Court of Canada Gladue ruling requires judges to consider specific factors when sentencing Indigenous offenders, including the impacts of residential schools, the Sixties Scoop, or involvement in the child welfare system. Similar to pre-sentence reports, Gladue reports inform judges about an Indigenous person’s background and how colonialism has affected their life circumstances.

This issue creates a delicate balance for the justice system. While false claims can undermine the intent of Gladue principles, Pearl notes that self-identification may be the only option for some individuals due to colonial disruption of their connections to Indigenous communities.

“Courts are very reluctant to be the gatekeeper of who is Indigenous,” Pearl explained. However, this reluctance is being tested. In a recent Alberta case, a judge proposed that individuals who self-identify as Indigenous should demonstrate acceptance within an Indigenous community, writing: “It is becoming increasingly clear we must no longer sacrifice the integrity of Indigenous identity on the altar of over-inclusion.”

Darryl Leroux, an associate professor in political studies at the University of Ottawa who researches false Indigenous identity claims, has documented 185 court cases with unverified or false identity claims over the past decade. Of these, 35 involved Gladue reports.

“Any of these types of false claims by white folks is harming Indigenous people in various ways, but it definitely makes things more complex for judges,” Leroux said. “It definitely is going to harm those who have experiences and can connect their experiences of historical forms of violence… and also contemporary forms to their conviction.”

Leroux bases his assessments on judicial discussions about Gladue reports and organizational affiliations claimed by defendants. He notes that judges are increasingly questioning dubious claims. In a 2020 case, a judge refused to apply Gladue factors because the accused’s mother’s Métis identity was linked to an organization offering paid memberships.

Jonathan Rudin, special projects director for Aboriginal Legal Services in Toronto, offers a more nuanced perspective. His organization has produced thousands of Gladue reports across Ontario since 2001 and recognizes that not all questionable claims are deliberate deception.

“Identity is really complicated and a lot of people don’t know much about their identity,” Rudin said. “On one level, disconnection is a real consequence of colonialism.”

When Aboriginal Legal Services cannot verify aspects of a defendant’s Indigenous identity, they issue “no Gladue report” letters to the court, stating they cannot speak to the individual’s experiences as an Indigenous person. “But we don’t say in our letters that someone is or is not Indigenous; that’s not a role we want to play,” Rudin emphasized.

One particularly problematic case from Ontario in 2015 involved a defendant claiming affiliation with the “Oneida Band of the Blackfoot Tribe.” The judge noted this was a fictional entity, as the Oneida Nation is part of the Haudenosaunee Confederacy while the Blackfoot Nation is traditionally located in what are now the Prairie provinces.

In that case, the judge declined to apply Gladue principles but acknowledged the difficulty of such decisions: “The decision to not engage the [Gladue] analysis, in the face of an identification, is tricky, because displacement is a key feature of Gladue, and who am I to serve any kind of gate-keeping function in determining who is Aboriginal and who is not.”

Rudin maintains that judges should not be tasked with determining a person’s Indigenous identity during sentencing. Instead, he argues that thorough work by Gladue report writers and input from Indigenous communities themselves should guide these determinations.

As this issue continues to evolve, the courts face the challenge of honoring Gladue principles for legitimate claimants while preventing the exploitation of a system designed to address historical injustices against Indigenous peoples.