There is a helpful jurisprudence building out of Ontario’s Court of Appeal, providing clear guidance to the Ontario Review Board on how, when and why Gladue Reports are to be obtained by the Board.

Just last year, the Court released Mitchell (Re) 2023 ONCA 229, which I blogged about here:

Building on the principles clearly articulated in Mitchell, we now have Cooper (Re), 2024 ONCA 484

In this case, despite the Appellant’s request that the Board order a Gladue Report, with which no party took issue at the hearing, the Board ultimately refused to order the report, deferring to the attending psychiatrist and the treatment team to decide when they thought one might be more helpful. The doctor was asked at the hearing, after the close of submissions, about the best time to interview the accused and she thought he would benefit from a couple of months to stabilize before then. However, nobody suggested the Report ought not to be ordered, to be prepared for the next hearing. The Court determined the Board’s refusal to order the report was unreasonable and amended the Disposition to include this Order.

The Judgment can be found here:

https://coadecisions.ontariocourts.ca/coa/coa/en/item/22457/index.do

From the Judgment – with emphasis added by me:

Analysis

[5]          The appeal focuses on the Board’s refusal to order that a Gladue Report be prepared for the next annual hearing.

[6]          We agree that the Board’s failure to order the requested Gladue Report was unreasonable in the circumstances of this case. We see no basis at all for the Board’s refusal.

[7]          The Board has a duty to search out, gather, and review all relevant and available evidence pertaining to the four factors, set out in s. 672.54 of the Criminal Code, that are to be considered when making a disposition – namely, public protection, the mental condition of the accused, the reintegration of the accused into society, and other needs of the accused: Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at paras. 54-55. In the case of an Indigenous NCR accused, in the absence of equivalent information, it is difficult to see how the Board can properly carry out its duties without a Gladue Report. We also note that while the parties can request it, only the Board can require the preparation of a Gladue Report.

[8]          It is well-established that Gladue principles apply to proceedings before the Board: R. v. Sim (2005), 78 O.R. (3d) 183, at para. 16; Mitchell (Re), 2023 ONCA 229, at para. 23. The Board is required to take Gladue principles into account when considering the four factors set out in s. 672.54 of the Criminal Code in the case of an Indigenous NCR accused.

[9]          As this court explained in Mitchell (Re), at para. 22, in cases involving Indigenous accused persons, the Board is to engage in a “different method of analysis”, which “requires adjudicators to pay particular attention to the unique circumstances of Indigenous people detained in psychiatric facilities, and how those circumstances affect the four statutory criteria” under s. 672.54.

[10]       There is no dispute that a Gladue Report is relevant here. The appellant is an Indigenous man with Indian status. His paternal grandmother was a Residential School survivor, and the September 21, 2023 Hospital Report prepared by his attending psychiatrist suggested that intergenerational trauma may exist in his family. Specifically, the Hospital Report addresses the following: the appellant’s father grew up in poverty and experienced abuse; as a child, the appellant witnessed domestic violence; there is family history of substance use and mental illness; and the appellant’s history of polysubstance use.

[11]       There is also no dispute that his attending psychiatrist opined that a Gladue Report may be helpful in assisting with his treatment.

[12]       Finally, there is no dispute that there was no objection to the ordering of the Gladue Report. In the circumstances of the hearing, it was the parties’ reasonable expectation that a Gladue Report would be ordered by the Board.

[13]       In keeping with Board’s duty to obtain and consider all relevant information when coming to a disposition, it was up to the Board and not to the treatment team to determine if and when to order the Gladue Report. It is no answer that the appellant may not have been immediately available to participate in the preparation of the Gladue Report. This indicates a misapprehension of the scope of a Gladue Report that goes well beyond an interview with the appellant, and a misunderstanding of how long it typically takes for a Gladue Report to be prepared – often several months. Moreover, given the breadth of a Gladue Report’s contents, these reports provide a wealth of valuable information for the Board regardless of an Indigenous NCR accused person’s ability to participate.

[14]       It was therefore unnecessary and plainly unreasonable for the Board to delay the commencement of the preparation of the Gladue Report. As noted above, the appellant’s attending psychiatrist indicated that the appellant would benefit from a couple of months for his condition to stabilize before being interviewed. There was no need to wait for a year to order a Gladue Report. Even if the appellant were never in a stable enough position to participate in a meaningful way, the Gladue Report would provide important information necessary for the Board’s execution of its duties, including the availability of and access to Indigenous-specific programming not available in the Hospital.