What is Gladue all about?

In 1999, Canada entered a new era. The Supreme Court ("SCC") recognized that Aboriginal people have unique histories and experiences. The SCC recognized the unique cultural and historical circumstances of Aboriginal people.  The SCC recognized systemic barriers and challenges are unique to colonized Aboriginal populations in Canada. The SCC distinguished Aboriginal people's social histories from other minorities due to sustained colonial laws and policies over several hundreds of years (and many generations), resulting in inequity, an un-level playing field and a system rampant with bias and racism.  The lack of fair treatment of Aboriginal people is a continuous challenge for Canada to address. The SCC recognized there is an ongoing effect to the present day.  For example, poverty, homelessness, poor health outcomes, lower educational attainment, FASD, high rates of trauma, etc. 

 

Changes happened when parliament amended the Canadian criminal code in s718.2(e) not long before the Gladue decision. As a result, the SCC gave direction about how the criminal justice system needs to change in order to reduce the high number of Indigenous people coming into conflict with the law.  In other words, there needed to be a "remedial" effect injected into our criminal justice system. Decision makers need to exercise discretion when recognizing social issues versus criminal issues. The fair treatment of Aboriginal people in the criminal justice system is a basic part of our Canadian legal system. We want to see the criminal justice system respect the cultural and history that Aboriginal people have experienced, whether it is a pre-charge assessment, setting conditions for probation, or determining a 'fit sentence'. The law is clearly stated in two key decisions: 

R v. Gladue [1999] 1 S.C.R 688 ("Gladue") and R v. Ipeelee [2012] 1 S.C.R. 433 ("Ipeelee"). 

In the R. v. Gladue (1999) decision, the Supreme Court of Canada determined that the disproportionate number of Indigenous persons in jails in Canada resulted directly from:

 

(a) Systematic discrimination in the criminal justice system utilizing an institutional approach more likely to refuse bail and impose longer prison sentences for Indigenous offenders; 

(b) Systemic contextual factors including (but not limited to) poverty, lower educational attainment, substance abuse, and community breakdown as a result of colonization.  

Due to the R. v. Gladue decision, Judges now have a duty to review information coming from a Gladue Report (or made through Gladue Submissions) that outlines the unique systemic or background factors which may have played a part in bringing the particular individual before the Court,.

The Canadian Criminal Code under s718.2(e) states "all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders." 

Judges have a duty to apply Gladue principles, irrespective of the charge and regardless of which court the offender appears in. 

 

Where do Gladue Principles apply?
 

To ensure the fair treatment of Indigenous Peoples, Gladue Principles apply at:                

  • Arrests, Report to Crown Counsel;

  • Charge assessment;

  • Bail hearings;

  • Sentencing hearings;

  • Youth Criminal Justice;

  • Reviews in First Nation/Indigenous Court;

  • Dangerous Offender Hearings (DO’s);

  • Long term Offender Hearings (LTO’s); and

  • Not Criminally Responsible Hearings (NCR’s).
     

To ensure the fair treatment of Indigenous Peoples, Correctional Service Canada's decision-makers are obligated to take into account "Gladue Factors" (also known as ASH or Aboriginal social history factors) in relation to:

  • Intake and assessment

  • Security classification (minimum, medium, maximum);

  • Parole Board of Canada hearings (full and day parole);

  • Community release planning;

  • Disciplinary decisions (including administrative segregation);

  • Transfers; 

  • Statutory Release.
     

The Duty of Judges in Courts
 

Because of the R. v. Gladue decision, Judges now have a duty to review information coming from a Gladue Report (or made through Gladue Submissions) that outlines the unique systemic or background factors which may have played a part in bringing the particular individual before the Court, in arriving at a 'fit sentence' (at sentencing hearings).

The Canadian Criminal Code under s718.2(e) states that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders”. 

Judges have a duty to apply Gladue principles, irrespective of the charge and regardless of which court the offender appears in. 

Why do Gladue Reports matter?


Gladue Reports play an important role in enabling judges to fulfil their duty.  When done correctly, Gladue Reports assist the court to understand the individual circumstances of the offender AND determine a "fit sentence".  In other words, Gladue Reports outline the "systemic and background factors" of an Aboriginal offender, lay out a plan to address the root cause of their offence(s) and offer restorative justice options that are non-custodial in nature.

The Supreme Court of Canada highlighted this perspective squarely in R. v. Ipeelee (2012) saying that “the sentencing process is “…an appropriate forum for addressing Aboriginal overrepresentation in Canada’s prisons” (Ipeelee at para 70), demonstrating the significant need to alter sentencing practices for Aboriginal offenders from the ineffective yet ongoing retributive practices.

 

 

© The Gladue Writers Society of British Columbia 2019