The Gladue Principles: A Guide to the Jurisprudence

Description

Over the past two decades Canadian courts have repeatedly acknowledged that Indigenous individuals and collectives face systemic discrimination throughout the criminal justice system. The system’s disproportionate adverse impacts on Indigenous peoples have also been thoroughly studied and documented for over half a century. Indigenous individuals are over-represented among those charged, convicted, and sentenced to prison, as well as those who are victims of crime. Among other disparities, Indigenous individuals are more likely to be denied parole, spend a disproportionate amount of time in segregation, and are less likely to receive community-based sentences. At the same time, the criminal justice system has often marginalized the legal responses of Indigenous collectives to wrongdoing among their members.  These systemic issues require systemic responses. On April 23, 1999, the Supreme Court of Canada provided one such response in its decision in R v Gladue, articulating a broad open-ended framework to address this crisis of legitimacy and outcomes in the sentencing of Indigenous persons. The Gladue decision’s main principles have since been extended to various other facets of the criminal justice system. At the direction of the BC First Nations Justice Council, this book synthesizes the hundreds of cases that expand on these principles to provide readily accessible guidance to all those involved in their practical implementation. _GoBack _GoBack _GoBack _GoBack _GoBack _GoBack _GoBack _GoBack _GoBack _GoBack _GoBack _GoBack _GoBack _GoBack _GoBack _GoBack _GoBack _GoBack _GoBack _GoBack _GoBack _GoBack Introduction Foreword (BCFNJC) Foreword (ILC) Part A: LEGAL AND HISTORICAL CONTEXT Chapter 1: Earlier accommodative sentencing practices Accommodative sentencing of Indigenous people from remote communities Cultural context and distinct community values and perspectives Discriminatory impacts on Indigenous people in sentencing Indigenous community involvement and culturally relevant programming Contextual assessment of moral blameworthiness in sentencing Indigenous people Conclusion Chapter 2: Prior task forces and commissions of inquiry Inquiry re Administration of Justice in the Hay River Area of the Northwest Territories Native Peoples in the Administration of Justice in the Provincial Courts of Alberta The Royal Commission on the Donald Marshall Jr. Prosecution (Nova Scotia) Task Force on the Reintegration of Aboriginal Offenders as Law-Abiding Citizens (Canada) Access to Justice: the Report of the Justice Reform Committee (British Columbia) Osnaburgh Windigo Tribal Council Justice Review (Ontario) Task Force on the Criminal Justice System and its Impact on the Indian and Metis People of Alberta Aboriginal Justice Inquiry of Manitoba Law Reform Commission of Canada: Aboriginal Peoples and Criminal Justice Saskatchewan Indian and Metis Justice Review Committees Cariboo-Chilcotin Justice Inquiry (British Columbia) Advisory Committee on the Administration of Justice in Aboriginal Communities (Québec) Royal Commission on Aboriginal Peoples—Bridging the Cultural Divide (Canada) Conclusion Chapter 3: Legislative history and context Introduction of Bill C-41 (The Sentencing Reform Act) Section 718.2(e) in context to emerging Indigenous justice initiatives Conclusion Part B: THE ACCOMMODATIVE JURISPRUDENCE OF THE SUPREME COURT OF CANADA Chapter 4: Judicial notice of discrimination in Williams The factual context and lower court decisions Widespread racial prejudice in the community may be subject to judicial notice Racial prejudice can unconsciously shape the daily behaviour of individuals Judges may infer that some people will struggle to identify and eliminate biases Widespread racism has led to systemic discrimination in the criminal justice system Conclusion Chapter 5: The framework and principles set out in Gladue The factual context and lower court decisions The foundations for a purposive analysis of s 718.2(e) in the dissent of Justice Rowles There is a judicial duty to give section 718.2(e)’s remedial purpose real force Indigenous people’s circumstances are unique and may make prison less appropriate Section 718.2(e) is part of an overall re-orientation towards restorative sentencing Section 718.2(e) reflects Parliament’s sensitivity to Indigenous justice initiatives Section 718.2(e) responds to Canada’s long-standing problem of over-incarceration Section 718.2(e) directs sentencing judges to address Indigenous over-incarceration Courts have the power to influence how Indigenous people are treated in the system Two categories of circumstances must be canvassed in sentencing Indigenous people Category A—The role of unique systemic and background factors in sentencing Category B—Procedures and sanctions particular to their heritage or connection Unique circumstances can lead to sentences varying from one community to the next Community perspectives and needs can affect the relevant sentencing objectives Principles of separation, denunciation, and deterrence remain relevant The length of the term of imprisonment must be considered for serious offences Various questions guide the search for a fit sentence for an Indigenous person Section 718.2(e) provides flexibility for a more holistic approach to sentencing Sentencing judges have a duty to consider every Indigenous person’s unique situation Judicial notice is mandatory but further individualized evidence may be needed 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 pre-sentence reports and witnesses 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 to all Indigenous people regardless of where they live Alternatives must be explored even in the absence of community support Both the sentencing judge and the majority of the Court of Appeal erred Nevertheless a new sentencing hearing was not in the interests of justice Conclusion Chapter 6: Conditional sentencing of Indigenous people in Wells The factual context and lower court decisions The Gladue analysis applies at stage two of the conditional sentencing analysis Conditional sentencing where denunciation and deterrence are paramount A restatement and summary of the sentencing guidelines set out in Gladue Primacy may still be given to denunciation and deterrence for serious crimes A categorical approach to the seriousness of an offence would be inappropriate The greatest weight may still be accorded to restorative justice for serious crimes Judges must conduct a practical inquiry into an Indigenous person’s circumstances Conclusion Chapter 7: Long-term offenders and misconceptions in Ipeelee A clarification of the roles of judicial notice and case-specific information in Spence The circumstances of Mr. Manasie Ipeelee The circumstances of Mr. Frank Ladue The central place of the principle of proportionality in determining a fit sentence Clarification of the long-term offender regime in general Long-term supervision orders serve both public protection & rehabilitation There is no distinct sentencing regime or system for a breach of an LTSO A revisiting and reaffirmation of the Gladue principles Judicial notice of systemic and background factors provides necessary context Case-specific information is required in every case and Gladue reports can assist Increasing levels of over-incarceration may in part reflect s 718.2(e)’s misapplication Sentencing judges play a role in reducing both crime and systemic discrimination Sentencing practices must change if they do not effectively deter and rehabilitate Judges can ensure systemic factors do not inadvertently lead to discrimination Reassessing sentencing practices can further the fundamental purpose of sentencing The Gladue principles do not provide a “race-based discount” in sentencing Both categories of unique circumstances affect what is a fit and proper sentence Systemic and background factors may bear on the individual’s culpability Systemic and background factors may impact deterrence and denunciation Indigenous perspectives and worldviews can impact the effectiveness of a sentence Crafting a fit and proper sentence requires attention to unique circumstances The history of Indigenous peoples is unique and tied to the legacy of colonialism Parity allows different sanctions to be justified based on unique circumstances Courts must ensure parity does not undermine s 718.2(e)’s remedial purpose It is an error to require a causal link between background factors and an offence Gladue circumstances and individual offending are intertwined in complex ways Gladue circumstances provide necessary context rather than an excuse for crime It is an error to interpret Gladue principles as inapplicable to serious offences Failure to apply the Gladue principles is an error justifying appellate intervention Application to the circumstances of Manasie Ipeelee Application to the circumstances of Frank Ladue Justice Rothstein’s partial dissent Conclusion Chapter 8: Extending the Gladue Principles Beyond s 718.2(e) The court’s non-delegable duty to craft a fit sentence under s 718.2(e) in Anderson Sentencing judges must apply the Gladue principles to respect proportionality The proportionality of a sentence is the judge’s responsibility, not the prosecutor’s Gladue has relevance in extradition but does not apply to prosecutorial discretion Routine judicial review of prosecutorial decision-making would be unworkable Judges can still address Crown conduct in court and decisions motivated by prejudice The need for Indigenous difference to be accommodated within corrections in Ewert The Correctional Service of Canada must advance substantive equality in corrections Ameliorating systemic discrimination in corrections requires differential treatment Indigenous alienation and systemic discrimination are not limited to sentencing A fair and effective criminal justice system requires the accommodation of difference Systemic discrimination against Indigenous people in corrections has not improved Concerns over cultural bias in actuarial risk assessment tools need to be addressed Addressing biases, prejudices, and stereotypes against Indigenous women in Barton Addressing the heightened vulnerability of Indigenous children as victims in Friesen Conclusion THE UNIQUE AND CASE-SPECIFIC CIRCUMSTANCES OF INDIGENOUS INDIVIDUALS AND COLLECTIVES Chapter 11: The Need for Case-specific Information Sources of case-specific information Sentencing submissions and evidence adduced by counsel Pre-sentence reports authored by probation officers Gladue reports The obligations placed on sentencing judges Judicial notice and independent research Further judicial inquiries Assessing the adequacy of Gladue information Addressing waiver of case-specific information Ensuring adequacy of reasons for sentence The obligations placed on counsel for both parties Crown counsel Defence counsel The obligations of the state Conclusion Chapter 10: Culturally Appropriate Procedures and Sanctions Indigenous perspectives, community views, and cultural differences guide the inquiry Urban networks of support and programming must be considered Specific examples of culturally appropriate sentencing procedures and sanctions Justice committees Sentencing and healing circles Family group conferencing Elder panels and participation Specialized sentencing courts Gladue reports as restorative process Community banishment and land-based isolation Community service orders Indigenous programming provided in the correctional system or the community Conclusion Chapter 9: Unique Systemic and Background Factors Colonialism provides a historical and conceptual link between various factors Each Indigenous nation or community has its own unique history and factors Unpacking the history of colonialism, displacement, and residential schools Intergenerational and direct impacts from attendance at residential schools Intergenerational and direct impacts from attendance at day schools Intergenerational and direct impacts of child apprehension and out-adoption Loss of collective and individual autonomy through legislation and policies Loss and denial of status and band membership under the Indian Act Constellations of constraining socio-economic factors as a legacy of colonialism Individual, familial, and collective experiences of racism and discrimination Gang involvement and exposure Geographic challenges such as community isolation and remoteness Experiences and cycles of abuse, violence, and victimization/criminalization Personal, familial, and community-level impacts of alcohol and drug misuse Fetal Alcohol Spectrum Disorder as a Gladue factor Loss of identity, culture, language, values, traditions, and ancestral knowledge Conclusion Part D: ELABORATION AND EXTENSION OF THE GLADUE PRINCIPLES BY LOWER COURTS Chapter 12: Joint Submissions on Sentence A clarification of the law in Anthony-Cook The public interest test The need for joint submissions to be thoroughly justified Counsel must account for Gladue principles when justifying joint submissions Courts must consider Gladue principles in how they approach joint submissions Conclusion Chapter 13: Bail Hearings General legal and constitutional principles governing bail decisions Caveats to the application of the Gladue principles to bail decisions Assessing bail criteria and release plans in light of systemic discrimination in bail Calibrating bail conditions to avoid contributing to systemic discrimination Attention to an Indigenous accused’s culture, beliefs, laws, or community standards Public confidence in the administration of justice must account for Gladue principles Case-specific information may be necessary but full reports are not always feasible Conclusion Chapter 14: Dangerous Offenders A clarification of the law in Boutilier Future treatment prospects must be considered at both stages Proportionality and the Gladue principles must be applied at the penalty stage The principle of restraint guides the penalty stage Justice Karakatsanis dissents on risk of grossly disproportionate sentences The application of the Gladue principles at the designation stage The need for detailed case-specific information The application of actuarial risk assessment tools to Indigenous people Conclusion Chapter 15: Young Persons The general application of Gladue principles to the sentencing of young persons The Gladue principles in Crown applications to sentence youths as adults Conclusion Chapter 16: Collateral Consequences General principles governing the consideration of collateral consequences Unique circumstances can translate into unique collateral consequences Systemic factors can amplify common collateral consequences Prison sentences may have collateral consequences for some Indigenous people Indigenous community punishments as collateral consequences Conclusion Chapter 17: Absolute and Conditional Discharges The statutory test for granting an absolute or conditional discharge The Gladue principles apply to an application for a discharge Systemic and background factors can impact an Indigenous person’s best interests The Gladue principles impact whether a discharge is contrary to the public interest Conclusion Chapter 18: Sentencing in Civil and Administrative Law Contexts Regulatory prosecutions Professional discipline hearings Contempt of court proceedings Conclusion Conclusion Table of Cases Index