Tenuous Indigenous identity claims for Gladue reports concern advocates

Advocates and Gladue report writers are concerned that there is no process to verify claims to Indigenous identity when people in the criminal justice system ask judges for Gladue consideration in sentencing.

Tamara (Baldhead) Pearl, an assistant professor at University of Alberta's Faculty of Law, said false Indigenous identity claims can waste resources and pervert the intent of Gladue.

“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,” she said.

The Supreme Court of Canada's 1999 Gladue ruling says sentencing judges must take into consideration the influence of things such as residential schools, the Sixties Scoop or child welfare system on Indigenous offenders.

Similar to pre-sentence reports, Gladue reports tell a judge about an Indigenous person's history and the ways they are impacted by colonialism.

But Pearl also said self-identifying as Indigenous may be all some people can do, due to the impacts of colonization and losing their connection to community.

"Courts are very reluctant to be the gatekeeper of who is Indigenous,” she said, but in a recent decision an Alberta judge proposed a test for those who self-identify: that those who claim to be Indigenous show they have acceptance within an Indigenous community.

“It is becoming increasingly clear we must no longer sacrifice the integrity of Indigenous identity on the altar of over-inclusion,” the judge wrote.

Darryl Leroux, an associate professor in political studies at the University of Ottawa, researches the phenomenon of the false claims to Indigenous identity.

He began tracking Indigenous identity claims in court cases almost a decade ago and said he found 185 with false or non-verified claims to identity; 35 featured Gladue reports.

Leroux said his assessments are based on judges' discussions about Gladue reports and to what organization an individual belongs.

He said more judges are now questioning these claims. In one 2020 court decision, a judge said they were unable to apply Gladue factors because the accused's mother's Métis identity was tied to an organization offering paid memberships.

"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."