What are Gladue Principles?

 

Drawing of woman from Legal Aid BC's publication "A Second Chance: A Gladue Rights Story." The text reads "A Gladue Report tells your story. The sentencing Judge must consider your unique background as an Aboriginal person and the systemic factors, such as Residential School, living in care, and racism, that led to this situation."
Legal Aid BC, https://pubsdb.lss.bc.ca/pdfs/pubs/A-Second-Chance-eng.pdf, Page 12.

 

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Gladue Rights, or Gladue Principles, derive from Section 718.2(e) of the Criminal Code. The Supreme Court handed down its decision in R. v. Gladue in 1999. The Supreme Court stipulated that Gladue Principles apply to First Nations, Inuit, and Métis peoples regardless of their status, place of residence, or background. They emerge from the unique experiences and circumstances that Indigenous peoples have experienced under Canadian settler colonialism. That is to say, Gladue Principles are derived from the unique history of First Nations, Inuit, and Métis peoples, and their distinct experiences of systemic and overt discrimation under Canadian colonialism and its "Aboriginal Policy":

…the circumstances of [A]boriginal people are unique. In sentencing an aboriginal offender, the judge must consider: (a) the unique systemic or background factors which may have played a part in bringing the particular [A]boriginal offender before the courts; and (b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular [A]boriginal heritage or connection…. Judges may take judicial notice of the broad systemic and background factors affecting [A]boriginal people, and of the priority given in [A]boriginal cultures to a restorative approach to sentencing.” (https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1695/index.do)

What are the Gladue Principles that Need to be Applied?

 

The following is a selection from Ralston, Benjamin. The Gladue Principles: A Guide to the Jurisprudence – User Guide for Gladue Report Writers. Saskatoon: BC First Nations Justice Council and USASK Indigenous Law Centre, 2021. pp. 4-7.

In Gladue, Wells, and Ipeelee the Supreme Court of Canada articulated a broad, open-ended sentencing framework to be applied when determining a fit sentence for an Indigenous person. This framework emerged from the Supreme Court of Canada’s interpretation of s 718.2(e) of the Criminal Code, which currently reads as follows: 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. The Supreme Court has referred to the various considerations arising under this framework as “the Gladue principles”. The wide-ranging and open-textured nature of this framework makes it difficult to definitively summarize all the relevant considerations that might arise whenever an Indigenous person is before the court for sentencing. As the Supreme Court clarified in Wells, they were never intended to provide “a single test”. However, for ease of reference a non-exhaustive list is provided below, drawn from the Supreme Court’s directions in Gladue, Wells, and Ipeelee. You are encouraged to refer to Chapters 5, 6, and 7 of The Gladue Principles for a more thorough and contextualized discussion of each point.

A non-exhaustive list of the Gladue principles:

• There is a judicial duty to give section 718.2(e)’s remedial purpose real force.

  • Section 718.2(e) of the Criminal Code

    • is part of an overall re-orientation towards restorative sentencing;

    • responds to the long-standing problem of overincarceration in Canada more generally;

    • directs sentencing judges to address Indigenous over-incarceration and systemic discrimination more specifically; and

    • reflects Parliament’s sensitivity towards Indigenous justice initiatives.

• Courts have the power to influence how Indigenous people are treated in the criminal justice system, including by changing sentencing practices to ensure they effectively deter and rehabilitate Indigenous offenders and by ensuring systemic factors do not contribute to systemic discrimination.


• The circumstances of Indigenous individuals and collectives are unique and they may make prison less appropriate as a sanction.

• At least the following two categories of circumstances must be considered when determining the fit and proper 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.

• Sentences may vary from one community to the next as a consequence of these unique circumstances and sentencing judges must ensure parity does not undermine s 718.2(e)’s remedial purpose.

• The unique perspectives, worldviews, and needs of Indigenous individuals and communities may affect the relevancy of sentencing objectives and the effectiveness of particular sentences for Indigenous offenders.

• For serious offences, principles of separation, denunciation, and deterrence may still be given primacy when sentencing an Indigenous person. However, it is inappropriate to take a categorical approach to the seriousness of an offence and the greatest weight may still be accorded to restorative justice principles for serious crimes in appropriate circumstances.

• For serious offences, the length of the term of imprisonment must be considered in light of an Indigenous offender’s unique circumstances.

• Section 718.2(e) provides flexibility for a more holistic and contextual approach to sentencing.

• Various questions guide the search for a fit sentence for an Indigenous person, including an inquiry into what the appropriate sanction is under the Criminal Code for this offence, committed by this offender, harming this victim, in this community.

• Sentencing judges have a duty to consider every Indigenous person’s unique situation.

• Judicial notice of such matters as the history of colonialism, displacement, and residential schools and how they translate into lower rates of educational attainment, lower incomes, higher unemployment, higher rates of substance abuse, and higher levels of incarceration for Indigenous people is mandatory and provides the necessary context for sentencing, but further case-specific information may still be required.

• Counsel on both sides should adduce relevant evidence absent waiver.

• Sentencing judges must make further inquiries if the record is insufficient.

• Relevant information may be obtained through Gladue reports, pre-sentence reports, or witness testimony.

• Reasons for sentence and fresh evidence upon appeal will assist in appellate review.

• Indigenous people must be treated fairly by taking into account their difference.

• Section 718.2(e) is applicable when sentencing any Indigenous person, regardless of where they live.

• Alternatives to incarceration must be explored even in the absence of community support.

• Systemic and background factors may bear upon an Indigenous person’s moral culpability.

• Systemic and background factors may impact the sentencing principles of deterrence and denunciation.

• The history of Indigenous peoples is unique in Canada and it is tied to the legacy of colonialism.

• There is no burden of persuasion on counsel to demonstrate direct, causal connections between an Indigenous person’s unique circumstances and individual offending as these are intertwined in complex ways.

Defining Systemic and Background Factors

 

Ralston, Benjamin. The Gladue Principles: A Guide to the Jurisprudence. Saskatoon: BC First Nations Justice Council and USASK Indigenous Law Centre, 2021.

 

“The Supreme Court summarized this first category of relevant background circumstances as the “well-known” systemic and background factors that “figure prominently in the causation of crime” by Indigenous people.

 

It described how '[y]ears of dislocation and economic development have translated, for many [A]boriginal peoples, into low incomes, high unemployment, lack of opportunities and options, lack or irrelevance of education, substance abuse, loneliness, and community fragmentation' Echoing the dissent of Justice Rowles, it cited Professor Quigley’s description of how these factors interact with one another in a snowball effect in order to produce Indigenous over-incarceration…

 

…an Indigenous person’s unique systemic and background factors may have relevance to sentencing in several conceptually distinct but overlapping ways. These include: (i) shedding light on why they ended up before the court; (ii) assessing whether prison will impact them more adversely than others; (iii) assessing whether prison is less likely to rehabilitate them; (iv) determining whether prison is likely to deter or denounce their conduct in a way that is meaningful to their community; and (v) addressing whether restorative sentencing principles ought to be given primacy to address crime prevention and bring about individual and broader social healing.”[i]

 

On sentencing considerations for culturally relevant sentencing:

 

“The Court also clarified that its general description of 'the basic tenets of traditional [A]boriginal sentencing approaches' is not meant to imply that 'all [A]boriginal offenders, victims, and communities share an identical understanding of appropriate sentences for particular offences and offenders.' It pointed out that the customs, traditions, and concepts of sentencing among Indigenous peoples ‘vary widely.’ However, the Court pointed to the importance of recognizing that ‘for many if not most [A]boriginal offenders, the current concepts of sentencing are inappropriate because they have frequently not responded to the needs, experiences, and perspectives of [A]boriginal people or [A]boriginal communities.”[ii]

 

Footnotes

[i] Ralston, Benjamin. The Gladue Principles: A Guide to the Jurisprudence. Saskatoon: BC First Nations Justice Council and USASK Indigenous Law Centre, 2021. 80-81.

[ii] Ralston, The Gladue Principles, 83.

 

Impacts of Colonization

 

McAdam, Sylvia. Nationhood Interrupted: Revitalizing Nêhiyaw Legal Systems. Purich Publishing Limited, 2015.

 

“The typologies of genocide are the systems of the colonizer such as justice, education, health, religion, economy, and history. It’s critical and crucial to identify the factors leading to the current situation of the nêhiyawak [and other Indigenous peoples in what is now known as Canada]. It can be argued that colonization and genocide are still at work in the lives of Indigenous peoples…The typologies of genocide have been described as the bureaucratic apparatus of the systems. These current typologies perpetuate genocide and assimilation through the justice systems, child welfare systems, churches, education, and various other systems. For example, the education systems continue to teach that the Doctrine of Discovery is the legal basis for European ownership and claim of Indigenous lands, resources, and air.

 

As well, these systems contribute to and perpetuate the poverty of nêhiyawak [and other Indigenous peoples in what is now known as Canada] through limiting funding of programs offered on reserves; one of these is the child welfare system. Currently, challenges to the funding are being pursued in the tribunals of the Canadian Human Rights Commission with some measure of success. Presently, the apprehension of Indigenous children are in the thousands, and these children are placed in non-Indigenous homes, furthering the diminishment of their cultures and languages. Further, present-day symptomology found in Aboriginal peoples and societies does not constitute a distinct psychological condition, but is the well-known and long-studied response of human beings living under conditions of severe and prolonged oppression.”[iii]

 

To summarize: The long-term effects of oppression, dispossession, and colonial violence endured by Indigenous peoples are apparent in systemic factors that underlie rates of over-incarceration and over-representation in the justice system.

 

Footnotes

[iii] McAdam, Sylvia. Nationhood Interrupted: Revitalizing Nêhiyaw Legal Systems. Purich Publishing Limited, 2015. 82.

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Research Guide for General Research