Nunavut’s Gladue dilemma

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Since the Supreme Court’s 1999 Gladue decision, sentencing judges in Canada are supposed to consider the “unique systemic or background factors” that bring Indigenous people in contact with the law. The idea is to reduce Indigenous overincarceration and promote alternative sanctions. But how does this work in a place like Nunavut, where the trauma of colonialism affects just about everyone, and scarce infrastructure exists for non-carceral penalties? In cases of gender-based violence, in particular, are Inuit women being sacrificed on “the altar of reconciliation?”

After a career in criminal law as both a prosecutor and defence counsel, Neil Sharkey spent 15 years as a judge, including eight as Nunavut’s Chief Justice. Qajaq Robinson is a Nunavummiuq human rights lawyer and workplace investigator who served as a commissioner on the National Inquiry into Missing and Murdered Indigenous Women and Girls. In the inquiry’s final report, Call to Action 5.17 urged a thorough evaluation of Gladue principles as they relate to violence against Indigenous women, girls, and 2SLGBTQQIA people.

Notes:

• The Path is the CBA’s Indigenous cultural awareness course. It addresses topics including Gladue principles and alternative justice systems.
• The CBA’s Gladue and Beyond Resource Guide is a free resource designed to accompany the module of The Path that covers Indigenous Peoples and the Criminal Legal System.
• In December 2025, the Supreme Court heard R. v. Cope, which deals with the application of Gladue principles in a case of gender-based violence.

Verdicts & Voices is a legal current affairs podcast presented by the Canadian Bar Association. With her retinue of expert guests, host Alison Crawford keeps listeners up to date on news, views, and stories about the law and the justice system in Canada.

Views expressed are not necessarily those of the CBA.

Transcript

Hello, listeners, and welcome back to Verdicts & Voices. This legal affairs podcast comes to you from the Canadian Bar Association, and I'm your host, Alison Crawford. It's been 26 years since the Supreme Court of Canada issued its landmark Gladue decision. Over the last generation, Gladue has advised trial judges who are sentencing criminal offenders to consider the systemic factors that have led to the over-representation of Indigenous offenders in our prisons. But what does that mean in Nunavut, where most people are Inuit? Victims and offenders are often equally affected by Gladue factors. And how do trial judges find a balance, if there is one, between reducing over-incarceration with public safety and protecting victims of gender-based and intimate partner violence?

I'm very grateful today to be joined by two excellent guests to dive into this discussion. Justice Neil Sharkey retired from the Nunavut Court of Justice in 2024 after 15 years on the bench and eight as its chief justice. Called to the bar in 1976, he's been a provincial and federal prosecutor, a legal aid lawyer, and a private criminal defense attorney.

And our second guest is Qajaq Robinson. She served as a commissioner for the National Inquiry into Missing and Murdered Indigenous Women and Girls. She's a lawyer, a mediator, and an investigator who advises on complex regulatory governance and policy matters.

 Welcome to you both to Verdicts & Voices.

Neil Sharkey

Thank you.

Qajaq Robinson

Thank you for having us.

Alison

My first question is for both of you. How would you describe the effect of Gladue in Nunavut? And maybe we'll start with you, Justice Sharkey.

Neil Sharkey

In terms of incarceration rates for Inuit men between 18 and 35, Gladue is a failure. In terms of Gladue as a wake-up call, it's a success. And finally, in terms of the public perception and acceptance in Nunavut of Gladue, well, I got to tell you that's problematic.

Alison

Okay. And why is that?

Neil Sharkey

Well, there's a consensus, I think, in the bar and among the judiciary that the lack of any alternative measures is the reason that this failure has occurred. And in fact, in the 2019 Missing and Murdered Indigenous Women and Girls final report, the Inuit-specific recommendation, number 16.28, was quite blunt. It said that the failure of governments in Nunavut, federal and provincial and territorial governments, is the reason why Gladue has failed to meet its objectives.

The Supreme Court in 2012, in the case of R. v. Ipeelee – which is the follow-up case to Gladue, it was decided about 12 years afterwards. But in that particular case, Ipeelee, the Supreme Court was clear that, look, Gladue is not a panacea or the solution for society's ills, respecting particularly crime and incarceration. Now there's a myth among some southern Gladue observers that in Nunavut, most of our incarceration is the result of over-policing and unreasonable bail conditions. But that's just far from the truth. If we look at Stats Canada, our crime severity index is seven times above the normal national rate. Our rate of violent crime is ten times above the national rate. And of course, our general incarceration per population is six times the national rate.

Now, what's this driven by? Obviously, addictions, particularly now in Nunavut crack cocaine is prevalent and crystal meth is now on the scene as well.

Alison

Qajaq, I was going to just ask if you might be able to pop in. You had something to do with that recommendation in the report, the final report.

Qajaq Robinson

This was not Nunavut-exclusive. Inuit Nunangat spans throughout the Arctic to Labrador, northern Quebec, Nunavut, Northwest Territories, but we also heard from Inuit who now live in southern Canada. I mean the Call for Justice, I think, and the need to really look beyond just Section 718(e), really speaks to larger issues around how you respond to violence, to crime, and what's needed to have in place prior to violence occurring, prior to ending up in court, and frankly after.

When I reflect on Gladue, the initial Supreme Court decision, I can't help but also reflect on where Nunavut was as a territory at the time. I think Canadians need to understand that Inuit forcibly, coercively forced into settlements is a relatively new phenomenon, right? It is a lived experience of living people right now, of having lived on the land and now being within settlements where there is police, there are nurses, there is the church, there is the school, there is the court system. So the introduction of the system of criminal justice within Inuit communities is new. The introduction of the norms and reactions and responses is also, I'd say, new. You can't look at the rates of crime and addiction without looking at poverty, without looking at the social upheaval that was caused, right?

Alison

Yeah. Justice Sharkey, certainly the lack of housing has been a big contributor to many of the violent crimes and issues. That is, you know, among the many things that haven't really improved over time. What kind of other practical issues do judges encounter when they consider how to apply Gladue principles when they're sentencing people in Nunavut?

Neil Sharkey

Well, they're up against a lack of alternative measures. We give a lot of credence to conditional sentences, and even without alternative measures, we try to make it work. In a positive sense, we have one correctional centre in Rankin Inlet, which is based on the Icelandic model of normality. Integrating the offender into the community on a daily basis. So that's one legacy of Gladue in Nunavut, which is positive. And we can take advantage of sentencing people to that particular institution.

Alison

How many people can accommodate?

Neil Sharkey

About 50. We have about 200 here in the regular system and there are more, of course, in the federal system, the numbers I don't have. But we also try, on circuit… In many communities, we have Elders sitting with the court and before an accused person is sentenced, judges will often turn to the Elder and see if the Elder has something to say to the offender. And you know, a lot of people say, well, that's just tokenism. It isn't tokenism. I've watched young men, I've watched older men, 35, 40 years old, break down and cry when they were spoken to by the Elder. And so that's why I wanted to get onto this notion of a positive Gladue legacy, and that's Gladue as a wake-up call. It's told us as judges to pay attention to the individual stories of Indigenous offenders. This is important because it deals with their dignity when they're before the court. And an offender, a young Inuk man, what we often are dealing with is young Inuit men between 18 and 35, he knows if I'm listening to his story. And he's more accepting of his sentence if he understands I have listened.

And the 19^th-century writer G.K. Chesterton once commented on the value of juries. And what he said was that juries, as opposed to judge-alone cases, juries see everything fresh for the first time, including a fresh view of the defendant. Whereas a judge just sees the same tired prisoner in the same old wooden box.

Now here in Nunavut, we have 85 % Inuit, and we're engaged with Gladue every single day. As judges of this court, we're also aware of the different colonial experiences within different regions of Nunavut. For example, in the South Baffin, it's the dog slaughter and whaling. In the North Baffin, it is relocation. In the Central Arctic, it is the early mining in the 1950s. So we are aware of those different antecedent conditions or precipitating factors which go into the colonial experience. Now, if you took a survey, you'd find a consensus among the criminal bar that the Nunavut judges, since we deal with Inuit every day, that they have pretty good fairness meters in terms of applying Gladue principles. Your question, practically, what can we do? Well, we're constrained by the lack of resources. And I can say now, at least in Nunavut, we do have Gladue reports. We only have one writer, so they're few and far between, but it's a Nunavut-based program.

Alison

And that's recent.

Neil Sharkey

Yes. I denied an application for a Gladue report in 2020. And I did so because I live here. And I did not want to see First Nations Gladue writers staying in the hotels in our small communities, going to families and interviewing them, when the people in the community would think, can't we do this? And with great respect, they're tremendously talented writers. And in fact, in that particular case, I did receive a Gladue report written by writers from Royal Roads, Indigenous writers, and it was an excellent report. But the point was, and the reason I denied it, was to get our own program in place. And that's happened since then.

Alison

Qajaq, what have been the implications of Gladue when it comes to crimes such as intimate-partner or gender-based violence?

Qajaq Robinson

I think there is a tension. One of the issues we struggled with heavily in the inquiry and in our final report is that Gladue in principle is important and is supported. I think the concern is it just doesn't go far enough and particularly in Inuit Nunangat, implementation has been lacking.

I also think that where it becomes a problem, and the courts are starting to deal with this and wrestle with this, is when you have Indigenous women as the victims of the violence, as the ones being subjected to violence. Where we had concerns, where I have concerns, is that you don't see that, or we lacked that, lens of looking at the victims as well, and looking at how that very same lived experience of those systemic issues is part of their experience, and is part of why they are disproportionately being subjected to violence and being targeted.

More so, or on top of that, there being a systemic almost indifference at times to the violence that they experience. Police do not investigate them the same way. This is known to be true. I believe that, you know, we have issues with the way they're prosecuted. We have cases where Indigenous women's remains are brought through a courtroom as inanimate objects as opposed to sacred body parts. Their dignity, their humanness, their sacredness being diminished. And what we've lacked is that layer of considering that reality within our courts and within the sentencing structures as well.

Now I say that with a very… not pessimistic, but… The sentencing that judges engage in where there isn't the infrastructure can be fundamentally a paper exercise. And this is the struggle. We can have thoughtful reports. We can have thoughtful judges. But without the measures in place, whether it's in institutions, jails, prisons, or within the community to meaningfully address these issues, what judges engage in is a paper exercise.

In terms of what it will actually mean to reduce rates of incarceration, reduce recidivism, increase safety and security for Indigenous women and girls and gender-diverse people, it will not materially change people's lives absent the infrastructure, the intervention mechanisms. We know that in the national Inuit survey, I believe it's two out of three women reported experiencing sexual violence. That does not correlate with the rate of convictions or guilty pleas. So we know a lot more happens that doesn't even get into court. What are we doing about that?

Alison

And Justice Sharkey, you certainly have been in courts when you felt like it was a paper exercise.

Neil Sharkey

Well, of course. And I'd like to comment as well on this tension between Gladue principles and these new specific amendments to the criminal code in 2019, specifically Section 718.04 and 718.201, which are designed to protect Indigenous women and girls. Courts are specifically to consider, should, shall consider denunciation and deterrence as primary objectives when looking at those types of cases. I want to deal with this tension between those new sections and Gladue principles in a moment.

But first of all, in terms of public perception of Gladue in Nunavut, it's met basically with skepticism and scorn. Now we have a vibrant, law-abiding, productive community here in the wage economy and the land economy. Nunavummiut, people in Nunavut, Nunavummiut, they embrace rehabilitation. They know about the futility of jail in terms of reducing crime. But they have little tolerance for what they perceive as lenient sentences based on Gladue principles, particularly, as Qajaq alludes, when their own family members are the victims. Now, in terms of violent crime, the Supreme Court's been clear in the case of Wells and most recently in Friesen that the Gladue methodology of seeking to find the appropriate sentence for this individual Indigenous offender, that methodology applies to all cases no matter how serious.

I think where the rubber really hits the road is where we have gender-based violence, and we have to wrestle with applying gladiator principles. In Nunavut, the rate of gender-based violence and sexual violence is 13 to 19% higher than the national rate, depending on the nature of the crime, whether it's intimate-partner violence, sexual violence, or simply assaults which cause harm.

Qajaq Robinson

I can share what we heard during the inquiry. And there is, I would have to say, from the bulk of the families and survivors I heard from, as well as experts, the idea is that responsibility and accountability remains important. It remains essential. And what I would say we heard louder than anything else was that when we look at violence against Indigenous women and somehow hold those responsible for it as less responsible, it is definitely seen as devaluing those women. Where I think I might differ from many who are within the justice system is that it's the place to respond to it most effectively. And this is where we heard over and over again, where the justice system, the criminal justice system, isn't doing much favours for anybody. There is a dramatic increase in the number of Indigenous women being incarcerated as well. So, that isn't the solution that we've heard in Inuit Nunangat as well as the rest of Canada in terms of what the response needs to be.

Alison

Yeah. Now, of course, last December, the Supreme Court of Canada heard the case of R. v. Cope, and that considers the case of an Indigenous offender with a long criminal record who viciously attacked his Indigenous partner. And he was sentenced to five years. He successfully appealed that sentence and argued that the judge hadn't properly considered the Gladue principles. Of course, we're still awaiting that decision, but what do you imagine the implications will be one way or the other for Nunavut? I'll start with you Qajaq.

Qajaq Robinson

I mean, I think that I'm happy that the court and the Supreme Court is in a position where they're having to wrestle with this. This is something throughout the inquiry that we had to wrestle with it. I do not expect, similar to the outcome of Gladue, of the magic formula. But I do think these are very serious issues that we have to start wrestling with and addressing. I hope it is the push that moves the consideration of Indigenous peoples’ experiences in this country and how it interacts and how the justice system is a part of this. I think that that's what Gladue forced us to do, to look at that, to confront it. I'm hoping this next decision also forces us to look at the experience of Indigenous women and girls, Indigenous victims of violence. But that will ultimately force us to look more deeply at confronting these issues in a systemic way, and it will push for implementation of the Calls for Justice. It will push for implementation of the Aboriginal justice inquiry, RCAP. There is no shortage of ways forward that have been identified over and over again that look at this as a systemic issue, that look at investing Indigenous communities, that look at investing in alternatives. The formula is there. I think we have to push the political will to act and I hope the courts do that. I hope the courts stand firm that it is not exclusively for judges to confront this, and we as a society have to. And we as governments who are responsible for serving all Canadians, including Indigenous people, have to confront this. And if we don't, it's going to keep coming to the courts and the courts do not have the tools to confront it.

Alison

Justice Sharkey, what about you? How closely have you been watching this case, and what are your hopes?

Neil Sharkey

I'm hopeful that the court will allow the Crown appeal, but maybe stay the sentence. The defendant is the poster child for Gladue factors. So, I think, on the one hand, as Jonathan Rudin so astutely put it to the Supreme Court during argument, and I watched the case on the video, he said that we cannot incarcerate our way toward reconciliation. And of course, I agree with that. And that's why this is a dilemma. At the same time, we have to be careful we don't sacrifice the safety and security of Inuit women and girls on the altar of reconciliation.

Alison

I want to thank you both very much for having this discussion with me. It's complex. It's multilayered. And I think our listeners will benefit from this very much. Thank you.

Neil Sharkey

Well, thank you so much.

Qajaq Robinson

Thank you.

Alison

Justice Neil Sharkey is the former Chief Justice of the Nunavut Court of Justice. We reached him today in Iqaluit. And Qajaq Robinson was a commissioner for the National Inquiry into Missing and Murdered Indigenous Women and Girls, and she's in Gatineau.

Verdicts & Voices is a regular legal affairs podcast produced by the Canadian Bar Association. And if you enjoy Verdicts & Voices, please rate and review us wherever you download the show. I'm your host, Alison Crawford, and thank you for listening.