Gladue report

Last updated

A Gladue report is a type of pre-sentencing and bail hearing report that a Canadian court can request when considering sentencing an offender of Indigenous background under Section 718.2(e) of the Criminal Code. [1]

Contents

The process derives its name from R. v. Gladue , a 1999 Supreme Court of Canada decision that was the first to challenge Section 718.2(e) of the Criminal Code. [2] [3]

Background

Jamie Tanis Gladue was a young Cree woman charged with second-degree murder after stabbing her common-law husband during an altercation. [4] On the evening of her nineteenth birthday celebration, Ms. Gladue confronted the victim, Reuben Beaver, about the affair she believed he was having with her sister. [4] Her suspicions appeared correct, and he insulted her. A few minutes later, the victim fled the home, and the accused ran at him with a large knife and stabbed him in the chest. [4] At the trial, Ms. Gladue pleaded guilty to manslaughter as her blood alcohol content at the time of the incident was between 155 and 165 milligrams of alcohol in 100 millilitres of blood. [4] Ms. Gladue's criminal record only consisted of an impaired driving conviction. [4] Regarding her sentencing, the Supreme Court noted: "...a sentence of three years’ imprisonment was not unreasonable. More importantly, the accused was granted, subject to certain conditions, day parole after she had served six months in a correctional centre and, about a year ago, was granted full parole with the same conditions. The results of the sentence with incarceration for six months and the subsequent controlled release were in the interests of both the accused and society." [4] Gladue was the first case to challenge section 718.2(e) before the courts. The accused's Aboriginal background did not affect sentencing. The trial judge noted that both Gladue and the victim were not living in an Aboriginal community at the time of the incident and therefore had no special circumstances arising from their Métis status. [5] While Gladue was a Métis woman, she was living in an urban area at the time which affected the decision of the trial judge in applying section 718.2(e). Section 718.2(e) is often referred to as the "Aboriginal sentencing section." [6]

Gladue Principle

During the 1970s, Government of Canada reported that Indigenous overrepresentation in the justice system was becoming more concerning due to the rapid increase of Indigenous offenders. [7] In 1996, the Canadian Parliament introduced an amendment to the Criminal Code of Canada, section 718.2(e), in Bill C-41, to help reduce the rate of Indigenous people entering the justice system. [8]

Section 718.2(e) of the criminal code is defined within the “Other sentencing principles”. [9] The section is outlined as follows: “A court that imposes a sentence shall also take into consideration the following principles: (e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders”. [9]

This sentencing principle enforces deliberation for Canadian Judges; considering other sentencing options, rather than imprisonment – based upon factors of specific life, social and cultural circumstances of Indigenous offenders. [10]

Subsection 718.2(e) is a guiding principle and not a substantive power. Therefore, the court is not at liberty to impose a sentence outside the range of legally available penalties. For example, if there is a minimum sentence of imprisonment, the court cannot use the Gladue Principle to impose a sentence lower than the minimum. However, courts have considered the Gladue Principle in determining the constitutionality of minimum sentences which are set by the Crown, depending on whether the Crown elects to serve a notice of enhanced penalty under s. 729 or elects to proceed by indictment.

In March 2012, the Supreme Court of Canada ruled that the Gladue Principle also applies to breaches of long-term supervision orders. They stated that "failing to take aboriginal circumstances into account would violate the fundamental principle of sentencing". This ruling, R v Ipeelee , 2012 SCC 13, [2012] 1 SCR 433, also reinforced the principles underlying the Gladue Report generally. Ipeelee itself has quickly become extremely influential in sentencing matters concerning aboriginal offenders, having been cited in over 80 Canadian court cases in just 7 months from the time it was issued and is now effectively a companion case to Gladue in this area.

Gladue principles within the justice system

Application

Gladue principles must be applied to anyone who identifies as Indigenous, including Status and non-Status Indians, as well as those who identify as First Nations, Métis and Inuit - when they are charged with a crime or going through the justice system. [11] Gladue principles can be applied during sentencing, bail, parole, and numerous situations within the courts. [11]

Collection of information

Gladue's report outlines individual and systematic background information for the judge. While this can vary depending on the province, territory, or court system, the Canadian Bar Association (CBA) outlines a general overview of questions. [12] The report would start with the client's background – from general information, such as age, marital status, if they have dependent children – to more've specific information like their occupation, and how long they have been working. [12]

Additional questions will then be asked regarding to the client's family – their parent's background, the client's relationship with them, if anyone in their family, including them, attended residential schools. [12] Questions related to their grandparents, siblings, extended family, and members of their community, that support the client. [12]

The questioning continues, bringing up factors which might have led them to their involvement within the justice system, such as social and cultural factors, substance abuse and mental health. [12] Once completed, the report is submitted to the judge to be considered.

Overall, the purpose of the questions is to bring up background information, not just of the client, but their families too. The background information helps inform the judge and supports their understanding of the multiple factors that lead an Indigenous person in Canada to be involved in the justice system.

Considerations by judge

The court’s goal is to decide on a sentence that’s appropriate for the Indigenous offender due to the factors that lead them to the court and the victim. [11] Judges will look at two categories of circumstances that are required to be considered when determining the correct sentence for an Indigenous person:

“A)The role of unique systemic and background factors in bringing them before the court for sentencing; and, B)Appropriate types of sentencing procedures and sanctions based on their particular Indigenous heritage or connection”. [13]

Gladue factors include the effects of colonialism, not just for the individual but also for the family and community they are a part of. [11] The continued effects of colonization on Indigenous people include racism, losing language, Indian Residential Schools and Indian Day Schools. [11]

Analyzing impacts of modern colonization an Indigenous individual has faced, enables the court to consider alternatives to prison when sentencing; the objective is to address the challenges Indigenous people face opposed to non-Indigenous individuals. [11]

Judges must be concerned about the report and the impact colonization has on Indigenous individuals; judges then must be concerned about alternatives to prison. Alternatives to prison may include community-based programming, treatment centres, and different ways of sentencing, such as sentencing circles or healing options in their community. [14]

Over-representation of Indigenous people in criminal justice system

The amendment specifically aimed to address Indigenous over-representation and stated that in order to determine an appropriate sentence, the judge must consider the background of the accused as these can often be mitigating factors. [6] The Court found that the rate of incarceration for Indigenous offenders was extremely high, and hoped that these amendments would provide some alternatives to imprisonment. Section 718.2(e) of the Canadian Criminal code was changed to dictate 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". [15] Allan Rock, Canada’s Minister of Justice at the time, explained that the amendment "aims to encourage courts to look at alternatives [which are] consistent with the protection of the public – alternatives to jail – and not simply resort to that easy answer in every case". [16] Under this amendment, correctional decision makers must take into account Indigenous social history in situations where their liberty is at stake. [17] The factors include the effects of the residential school system, experience in the child welfare and adoption system, effects of dislocation and dispossession of Indigenous peoples, level or lack of formal education and poverty and poor living conditions.

Continued over-representation and criticism of Gladue

Section 718.2(e) and Gladue principles aim to combat the increasing number of Indigenous people entering the justice system in Canada. However, the criticism of Gladue involves the increasing number of Indigenous prisoners within systems.

While s. 718.2(e) was introduced in 1996, R v. Gladue was not until 1999, and R v Ipeelee happened in 2012; criticism of Gladue is, if it is functioning appropriately, the rates of incarceration for Indigenous should be stagnant or declining, not rapidly increasing. From 1991 to 1992, before s. 718.2(e) was introduced, Indigenous people entering federal prisons was 11%. [18] From 1996 to 1997, after s. 718.2(e) was introduced, and the percentage of Indigenous people entering federal prisons was 15%. [18]

Welsh and Ogloff's 2008 study recognized the lack of decreasing Indigenous incarceration rates when examining 691 randomly sampled sentencing decisions before and after s 718.2(e) was introduced. [14] They noted that the Supreme Court of Canada's decision regarding s.718.2(e) as a band-aid solution was an "underestimate of the true complexity of the over-representation problem". [14] Welsh and Ogloff's research backed up many criticisms that Gladue needed to be fixed according to the original promises made by the Supreme Court.

According to Statistics Canada, in 2020/2021, on an average day, 42.6 per 10,000 Indigenous people were in provincial custody, compared to 4.0 non-Indigenous people. [19] The Office of the Correctional Investigator's 2021 annual report found that almost 50% of all federally incarcerated women were Indigenous. [20]

There are many reasons why gladue functions less than many believe it should. Perceptions that Gladue does not, nor could not, make a difference when sentencing serious offences are leading factors in the limited rates at which Gladue is being applied. [21]

Across Canada, Gladue reports are rarely used, even in provinces and territories with a high population of Indigenous people. [22] In Saskatchewan, between 1999 and 2014, almost half of Indigenous defendants did not have a Gladue report. [22] Additionally, 2023 research by Rhea Murti found that most provincial appeal court judges chose not to apply Gladue when sentencing. [23]

Further criticism of Gladue includes the idea that overincarceration is not the justice system's problem but a complex social issue. [21] The Government of Canada has addressed the concerns regarding Gladue as "Gladue should not be regarded as a panacea for overrepresentation, but rather as a contribution to the efforts required". [14]

Related Research Articles

<i>Youth Criminal Justice Act</i> Canadian statute

The Youth Criminal Justice Act is a Canadian statute, which came into effect on April 1, 2003. It covers the prosecution of youths for criminal offences. The Act replaced the Young Offenders Act, which itself was a replacement for the Juvenile Delinquents Act.

<span class="mw-page-title-main">Capital punishment in India</span> Death penalty in India, its states and union territories

Capital punishment in India is a legal penalty for some crimes under the country's main substantive penal legislation, the Indian Penal Code, as well as other laws. Executions are carried out by hanging as the primary method of execution per Section 354(5) of the Criminal Code of Procedure, 1973 is "Hanging by the neck until dead", and is imposed only in the 'rarest of cases'.

Section 7 of the Canadian Charter of Rights and Freedoms is a constitutional provision that protects an individual's autonomy and personal legal rights from actions of the government in Canada. There are three types of protection within the section: the right to life, liberty and security of the person. Denials of these rights are constitutional only if the denials do not breach what is referred to as fundamental justice.

Truth in sentencing (TIS) is a collection of different but related public policy stances on sentencing of those convicted of crimes in the justice system. In most contexts, it refers to policies and legislation that aim to abolish or curb parole so that convicts serve the period to which they have been sentenced. Truth in sentencing advocates relate such policies in terms of the public's right to know. They argue, for example, that it is deceptive to sentence an individual to "seven-to-nine years" and then release them after they have served only six years.

The Aboriginal Justice Inquiry (AJI), officially the Public Inquiry into the Administration of Justice and Aboriginal People, was a public inquiry commissioned by the Manitoba government into the administration of justice regarding the 1971 murder of Helen Betty Osborne and 1988 death of J.J. Harper. Commissioned in 1988, with its final report presented in 1991, its stated purpose was "to examine the relationship between the Aboriginal peoples of Manitoba and the justice system."

<span class="mw-page-title-main">Local Court of the Northern Territory</span>

The Local Court of the Northern Territory is one of two levels of court in the Northern Territory of Australia. It has jurisdiction in civil disputes up to A$250,000, and in criminal cases in the trial of summary offences, and also deals with preliminary matters for indictable offences which are then heard by the Supreme Court of the Northern Territory. There are local courts held in Darwin, Alice Springs, Katherine, Tennant Creek, and some "bush courts" in remote locations.

<span class="mw-page-title-main">Criminal sentencing in Canada</span> Overview of criminal sentencing in Canada

Canadian criminal law is governed by the Criminal Code, which includes the principles and powers in relation to criminal sentencing in Canada.

<i>R v Gladue</i> 1995 Supreme Court of Canada case on sentences for Indigenous offenders

R v Gladue is a decision of the Supreme Court of Canada on the sentencing principles that are outlined under s. 718.2(e) of the Criminal Code. That provision, enacted by Parliament in 1995, directs the courts to take into consideration "all available sanctions, other than imprisonment" for all offenders. It adds that the courts are to pay "particular attention to the circumstances of Aboriginal offenders".

<i>R v Wells</i> Supreme Court of Canada case

R v Wells is a decision of the Supreme Court of Canada with respect to sentencing principles set out in s 718.2(e) of the Criminal Code, relating to Aboriginal offenders. The decision clarified the principles set out in the Court's earlier decision in R v Gladue.

Indigenous Australians are both convicted of crimes and imprisoned at a disproportionately higher rate in Australia, as well as being over-represented as victims of crime. As of September 2019, Aboriginal and Torres Strait Islander prisoners represented 28% of the total adult prisoner population, while accounting for 2% of the general adult population. Various explanations have been given for this over-representation, both historical and more recent. Federal and state governments and Indigenous groups have responded with various analyses, programs and measures.

<span class="mw-page-title-main">Judiciary of New Zealand</span> National court system

The judiciary of New Zealand is responsible for the system of courts that interprets and applies the laws of New Zealand. It has four primary functions: to provide a mechanism for dispute resolution; to deliver authoritative rulings on the meaning and application of legislation; to develop case law; and to uphold the rule of law, personal liberty and human rights. The judiciary is supported in its work by an executive department, the Ministry of Justice.

<span class="mw-page-title-main">Incarceration in Canada</span> Overview of incarceration in Canada

Incarceration in Canada is one of the main forms of punishment, rehabilitation, or both, for the commission of an indictable offense and other offenses.

A healing lodge is a Canadian correctional institution designed to meet the needs of Aboriginal inmates. Healing lodges were created to address the concern that traditional prisons do not work on aboriginal offenders. Aboriginals are over-represented in the prison system and are also more likely to be the victims of crime. In healing lodges, the focus is on healing and reconnecting with indigenous culture while inmates serve their sentences. Connecting to nature, participating in cultural ceremonies, and learning spiritual teachings are how Healing Lodges process the rehabilitation and healing of inmates. They also have access to spiritual guidance from Elders and are encouraged to maintain connections with their families and communities. Healing lodges were proposed as an alternative for Aboriginal female offenders, but there are now healing lodges for Aboriginal male offenders as well. Women's healing lodges are minimum/medium-security facilities, and men's healing lodges are minimum-security facilities.

Indigenous peoples in Canada are significantly overrepresented in the Canadian justice system. They make up approximately 30 per cent of all incarcerated individuals in Canada despite being approximately 4 per cent of the total population. Explanations for this overrepresentation include historical injustices – and the contemporary outcomes which are results of that history – faced by Indigenous peoples, as well as structural issues within the current criminal justice system itself. These issues include over-policing, ineffective representation in court, inadequate application of bail, and over-sentencing, which are all indications of systemic racism. While these issues affect Indigenous peoples broadly, there are specific implications for Indigenous women and youth.

Prisoners' Justice Day is a solidarity movement that takes place annually on August 10. The movement began in Canada in 1974 in support of prisoners’ rights and to remember all the people who have died of unnatural deaths while incarcerated. The first Prisoners' Justice Day was held at the Millhaven Institution on August 10, 1975, on the first anniversary of Edward Nalon's death. In addition to a day of mourning, six prisoners took part in an eighteen-day hunger strike. In 1976, August 10 was recognized as a memorial day where prisoners would strike in opposition to the use of solitary confinement and to protest inmate conditions within the Prison System by going on a one-day hunger strike and refusing to work.

Criminal sentencing in Canada is governed by the Canadian Criminal Code. The Criminal Code, along with the Supreme Court of Canada, have distinguished the treatment of Indigenous individuals within the Canadian Criminal Sentencing Regime.

The Commission of Inquiry into Certain Events at the Prison for Women in Kingston was a Canadian inquiry headed by Justice Louise Arbour concerned with prisoners' rights and the treatment of federally-incarcerated women. The Commission's final report was released in 1996, and was dubbed the Arbour Report.

R v Ipeelee is a Supreme Court of Canada decision which reaffirmed the court's previous holdings in R v Gladue, in that when sentencing an Indigenous person, every sentencing judge must consider: (a) the unique systemic or background factors which may have played a part in bringing the particular Indigenous individual before the courts; and (b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the person before the court because of their particular Indigenous heritage or connection.

Settler colonialism in Canada is the continuation and the results of the colonization of the assets of the Indigenous peoples in Canada. As colonization progressed, the Indigenous peoples were subject to policies of forced assimilation and cultural genocide. The policies signed many of which were designed to both allowed stable houses. Governments in Canada in many cases ignored or chose to deny the aboriginal title of the First Nations. The traditional governance of many of the First Nations was replaced with government-imposed structures. Many of the Indigenous cultural practices were banned. First Nation's people status and rights were less than that of settlers. The impact of colonization on Canada can be seen in its culture, history, politics, laws, and legislatures.

<span class="mw-page-title-main">Courts of Ontario</span> System of courts in Ontario, Canada

Accounts of the Indigenous law governing dispute resolution in the area now called Ontario, Canada, date from the early to mid-17th century. French civil law courts were created in Canada, the colony of New France, in the 17th century, and common law courts were first established in 1764. The territory was then known as the province of Quebec.

References

  1. ↑ Staples, Michael (January 23, 2010). "Unusual report ordered for case involving woman from St. Mary's". The Daily Gleaner. pp. A5. Retrieved 23 January 2010.
  2. ↑ "R. v. Gladue, [1999] 1 S.C.R. 688". Judgments of the Supreme Court of Canada. Lexum. October 23, 2009. Archived from the original on 7 January 2010. Retrieved 23 January 2010.
  3. ↑ "Gladue (Aboriginal Persons) Court". Aboriginal Legal Services of Toronto. Archived from the original on 14 October 2002. Retrieved 23 January 2010.
  4. 1 2 3 4 5 6 R. v. Gladue, [1999] 1 S.C.R. 688. http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1695/index.do
  5. ↑ Report of Aboriginal Justice Inquiry of Manitoba. "ABORIGINAL OVER-REPRESENTATION." The Aboriginal Justice Implementation Commission. November 1, 1999. http://www.ajic.mb.ca/volumel/chapter4.html
  6. 1 2 Rudin, Jonathan. Aboriginal Peoples and the Criminal Justice System. Toronto, Ont.: Ipperwash Inquiry, 2005.
  7. ↑ Government of Canada, Department of Justice (2016-08-05). "1. Introduction - Spotlight on Gladue: Challenges, Experiences, and Possibilities in Canada's Criminal Justice System". www.justice.gc.ca. Retrieved 2023-12-10.
  8. ↑ McConnell, Graeme (2020-05-22). "Indigenous People and Sentencing in Canada". Library of Parliament. Retrieved 2023-12-10.
  9. 1 2 Government of Canada. (2023, November 30). Criminal Code (R.S.C., 1985, c. C-46). Justice Laws Website. https://laws-lois.justice.gc.ca/eng/acts/C-46/section-718.2.html
  10. ↑ The Canadian Bar Association. Understanding the Truth and Engaging in Reconciliation. Canadian Bar Association - Understanding the Truth and Engaging in Reconciliation. https://www.cba.org/Truth-and-Reconciliation/Gladue-Beyond/Gladue-and-the-Indian-Act%E2%80%93-A-Brief-History
  11. 1 2 3 4 5 6 Legal Services Society BC. (2021, February). Gladue and You. Legal Aid BC. https://pubsdb.lss.bc.ca/pdfs/pubs/Gladue-and-You-eng.pdf
  12. 1 2 3 4 5 The Canadian Bar Association. (2019, June 24). Asking the Right Questions: Gathering Information for a Gladue Report. CBA Media Library. https://www.cba.org/CBAMediaLibrary/cba_na/PDFs/TRC/AppendixC_Questions.pdf
  13. ↑ Ralston, B. A. (2021). The Gladue Principles: A Guide to the Jurisprudence. Indigenous Law Centre.
  14. 1 2 3 4 Government of Canada, Department of Justice (2016-08-05). "3. Challenges and Criticisms in Applying s. 718.2(e) and the Gladue Decision - Spotlight on Gladue: Challenges, Experiences, and Possibilities in Canada's Criminal Justice System". www.justice.gc.ca. Retrieved 2023-12-10.
  15. ↑ Criminal Code, RSC 1985, c C-46 s 718.
  16. ↑ Rock, Allan. House of Commons, Standing Committee on Justice and Legal Affairs, Minutes of Proceedings and Evidence, no. 62 (Nov. 17, 1994), p. 62.
  17. ↑ BACKGROUNDER Aboriginal Offenders - A Critical Situation. 2013.
  18. 1 2 Reed, M., & Roberts, J. V. (1998). Adult Correctional Services In Canada, 1996-97. Juristat, 18(3), 1-12.
  19. ↑ Robinson, P., Small, T., Chen, A., & Irving, M. (2023, July 12). Over-representation of Indigenous persons in adult provincial custody, 2019/2020 and 2020/2021. Statistique Canada. https://www150.statcan.gc.ca/n1/pub/85-002-x/2023001/article/00004-eng.htm
  20. ↑ Native Women’s Association of Canada. (2022, April 8). Over-Incarceration of Indigenous Women. Native Women's Association of Canada. https://nwac.ca/assets-knowledge-centre/FNIHB_Over_Incarceration_of_Indigenous-Women-Policy-Brief.pdf
  21. 1 2 Parkes, Debra; Milward, David (2012-01-01). "Gladue: Beyond Myth and Towards Implementation in Manitoba". Manitoba Law Journal. 35 (1): 84–110.
  22. 1 2 Dorson, David (2022-08-13). "Gladue decision not having desired effects". The John Howard Society of Canada. Retrieved 2023-12-10.
  23. ↑ Murti, R. (2023). The Sentencing of Indigenous People in Canada: Where We Are Two Decades After Gladue. Indigenous Law Journal, 19(1), 17-43. https://ilj.law.utoronto.ca/sites/default/files/media/ILJ%20Vol.%2019%20No.%201%20Murti.pdf
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.