Gladue Factors

Aboriginal over-representation is one of the most documented trends in the Canadian criminal justice system.  The over-representation of Aboriginal peoples has been addressed by section 718.2(e) of the Criminal Code which currently reads:

                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 should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

R. v. Gladue, [1999] 1 S.C.R. 688 laid down the principles applicable for the sentencing of Aboriginal offenders in conjunction with section 718.2(e). 

Courts must take judicial notice of the "history of colonialism, displacement and residential schools" and how it has translated to lower education and income, and higher rates of unemployment, suicide and incarceration [pg 79].

The Gladue Factors include:

family circumstances

support network

residential schools

unemployment

lack of educational opportunities

dislocation from aboriginal communities, loneliness and community fragmentation

family involvement in criminal environment

loss of identity, culture and ancestral knowledge

substance abuse

poverty

racism

abuse

witness to violence

These principles were clarified and reinforced by the decision in R. v. Ipeelee, 2012 SCC 13.  Ipeelee makes clear that Gladue principles apply in all aspects of criminal law.  The Court holds, at para 81 :

 “[S]ome cases erroneously suggest that an offender must establish a causal link between background factors and the commission of the current offence before being entitled to have those matters considered by the sentencing judge”. An example of this approach is R. v. Poucette, 1999 ABCA 305.

Ipeelee held that such an approach “displays an inadequate understanding of the devastating intergenerational effects of the collective experiences of Aboriginal peoples. It also imposes an evidentiary burden on offenders that was not intended by Gladue.” The interconnections between background factors and the individual’s offence are “too complex” to draw the exact lines from A to B.

Ipeelee also held that “sentencing judges have a duty to apply s. 718.2(e)”, in “every case involving an Aboriginal offender”; failure to do so is an error that should be corrected by an appeal judge.

In discussing this second error, the Supreme Court notes:

[86]      In addition to being contrary to this Court’s direction in Gladue, a sentencing judge’s failure to apply s. 718.2(e) in the context of serious offences raises several questions. First, what offences are to be considered “serious” for this purpose? As Ms. Pelletier points out: “Statutorily speaking, there is no such thing as a ‘serious’ offence. The Code does not make a distinction between serious and non-serious crimes. There is also no legal test for determining what should be considered ‘serious’” (R. Pelletier, “The Nullification of Section 718.2(e): Aggravating Aboriginal Over-representation in Canadian Prisons” (2001), 39 Osgoode Hall L.J. 469, at p. 479). Trying to carve out an exception from Gladue for serious offences would inevitably lead to inconsistency in the jurisprudence due to “the relative ease with which a sentencing judge could deem any number of offences to be ‘serious’” (Pelletier, at p. 479). It would also deprive s. 718.2(e) of much of its remedial power, given its focus on reducing overreliance on incarceration. A second question arises: who are courts sentencing if not the offender standing in front of them? If the offender is Aboriginal, then courts must consider all of the circumstances of that offender, including the unique circumstances described in Gladue. There is no sense comparing the sentence that a particular Aboriginal offender would receive to the sentence that some hypothetical non-Aboriginal offender would receive, because there is only one offender standing before the court.

The Gladue and Ipeelee cases were reviewed in United States v. Leonard, 2012 ONCA 622.  Leonard that Aboriginal status is a factor to consider in extradition matters.  Leonard provides a good review of the current application of Gladue and Ipeelee:

[49]       In Gladue, the Supreme Court stated, at para. 67, that “[y]ears of dislocation and economic development have translated, for many aboriginals, into low incomes, high unemployment, lack of opportunities and options, lack or irrelevance of education, substance abuse, loneliness, and community fragmentation”. These conditions, together with bias and systemic racism, have contributed to what the Court described, at para. 64, as a “crisis” in Canada’s criminal justice system: the grossly disproportionate incidence of crime and incarceration amongst Aboriginal peoples. Section 718.2(e) of the Criminal Code, which directs sentencing judges to consider alternatives to imprisonment for all offenders but “with particular attention to the circumstances of aboriginal offenders”, was interpreted in Gladue, at para. 33, as a “direction to sentencing judges to undertake the process of sentencing aboriginal offenders differently”. The Court held that a different approach was required to meet what it had described in R. v. Williams, [1998] 1 S.C.R. 1128, at para. 58, as widespread bias against aboriginal people within Canada and “evidence that this widespread racism has translated into systemic discrimination in the criminal justice system”. In Gladue, the Supreme Court adopted the conclusion of the Royal Commission on Aboriginal Peoples (Gladue, at para. 62) and the Aboriginal Justice Inquiry of Manitoba (Gladue, at para. 63) that Canada's criminal justice had failed to take into account “the substantially different cultural values and experience of aboriginal people”.

[50]       Gladue mandates, at para. 66, a different framework of analysis for sentencing aboriginal offenders, taking into consideration “the distinct situation of aboriginal peoples in Canada” including:

The unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and

The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection.

[51]       The Supreme Court has emphasized, however, that the focus on systemic factors and specially tailored sanctions does not amount to reverse discrimination in favour of aboriginal offenders by offering them an automatic reduction in sentence. To the contrary, the Gladue approach is intended to avoid the discrimination against aboriginal offenders that flows from the failure of the justice system to address their special circumstances. As explained in Gladue at paras. 87-88:

The fact that a court is called upon to take into consideration the unique circumstances surrounding these different parties is not unfair to non-aboriginal people. Rather, the fundamental purpose of s. 718.2(e) is to treat aboriginal offenders fairly by taking into account their difference.

…[T]he direction to consider these unique circumstances flows from the staggering injustice currently experienced by aboriginal peoples with the criminal justice system.  The provision reflects the reality that many aboriginal people are alienated from this system which frequently does not reflect their needs or their understanding of an appropriate sentence.

[52]       The Gladue approach has been reinforced by R. v. Ipeelee, 2012 SCC 13, 280 C.C.C. (3d) 265, a decision handed down after the Minister gave his reasons in this case. Ipeelee reiterates that the Gladue approach does not amount to reverse discrimination but is, rather “an acknowledgement that to achieve real equity, sometimes different people must be treated differently”: Ipeelee, at para. 71. Gladue recognizes that Canadian courts “have failed to take into account the unique circumstances of Aboriginal offenders that bear on the sentencing process” and “is intended to remedy this failure by directing judges to craft sentences in a manner that is meaningful to Aboriginal peoples”: Ipeelee, at para. 75.

[53]       The Gladue principles have been extended by decisions of this court beyond the context of sentencing to address the need to ensure appropriate treatment for Aboriginal people as they interact with the justice system. Frontenac Ventures Corp. v. Ardoch Algonquin First Nation, 2008 ONCA 534, 91 O.R. (3d) 1, leave to appeal to S.C.C. refused, [2008] S.C.C.A. No. 357, applying Gladue in the context of civil contempt of court, holds, at para 57: “Although Gladue was focussed primarily on the serious problem of excessive imprisonment of aboriginal peoples, the case in a broader sense draws attention to the state of the justice system’s engagement with Canada’s First Nations.” In R. v. Sim (2005), 78 O.R. (3d) 183 (C.A.) this court held, at para. 16, that the Gladue principles should not be limited to the sentencing process and that the Ontario Review Board has an obligation to consider the principles in reviewing the disposition of an Aboriginal NCR accused.