This is a CRIMINAL LAW AND PROCEDURE course’s paper.The topic is “Gladue factors and the Justice System” (of Canada). Papers are to be approximately 10 pages, double spaced, 12 font. All pages must be
Gladue factors and the justice system theory
The purpose of Gladue is to reduce rate of the Indigenous population in the correctional system and rates of reoffences (StackPath, 2019). Among indigenous population the inadequacy of basic things like education of mental illness and substance abuse continues till now. The impact of intergenerational factors is still existing. The first nation is always overrepresented in most sectors of legal system. Racism, discrimination, and petrol policing are few of the reasons behind this (Maurutto & Hannah-Moffat, 2016) Therefore, Gladue was introduced to bring equality in justice system for these people.
Some of the Gladue factors are residential school survivor, family affected by the “Sixties Scoop, if one has put in a foster home or involved in the child protection system, experienced poverty, racism, trauma, childhood abuse, violence, or addictions (StackPath, 2019). In the paper I will be discussing:
Challenges Application of s. 718.2(e).:
Gladue report preparation and when to it is applicable:
Effect on Criminal justice system after the implementation of Gladue.
How the application of Gladue fails in certain circumstances.
Bail on Gladue application: The chances of getting bail for in indigenous is low.
As an aftermath of Gladue, the legal authority (lawyer and Judges) was little unsure of the use of Gladue, additionally, it was challenging for judges to determine the relevant background factors in sentencing. (Spotlight on Gladue: Challenges, Experiences, and Possibilities in Canada’s Criminal Justice System, 2018). There is still a question of Gladue’s implementation that “does the judges always take into account the Gladue factors while making decision?”.
The court must recognise the history of discrimination and the seriousness of increasing number of indigenous prisoners. There is an unavoidable need to look at an Indigenous accused's background. Cases like Lockett v. Ohio and state v. elk illustrates a deep understanding of Gladue factors and its impact of discrimination. The case of Leonard demonstrates inadequate use of Gladue principle (Manikis, 2016). This is not the only case but there are few other of this kind which indicates the unfairness towards the Indigenous community. Many have claimed the indigenous legal tradition have taken the place of restorative justice system, but the effect is not similar (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, n.d.). Thus, Proper implication of Gladue and understanding the indigenous perspective is essential element in criminal justice system.
Reference:
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. (n.d.). Retrieved September 29, 2022, from https://canada.justice.gc.ca/eng/rp-pr/jr/gladue/p3.html
Manikis, Marie, Towards Accountability and Fairness for Aboriginal People: The Recognition of Gladue as a Principle of Fundamental Justice That Applies to Prosecutors (September 16, 2016). (2016) 21 Canadian Criminal Law Review 173, Available at SSRN: https://ssrn.com/abstract=3045409 or http://dx.doi.org/10.2139/ssrn.3045409
Maurutto, P., & Hannah-Moffat, K. (2016). Aboriginal Knowledges in Specialized Courts: Emerging Practices in Gladue Courts. Canadian Journal of Law and Society / Revue Canadienne Droit Et Société, 31(3), 451-471. doi:10.1017/cls.2016.35
Spotlight on Gladue: Challenges, Experiences, and Possibilities in Canada’s Criminal Justice System. (2018). Retrieved October 2, 2022, from https://www.justice.gc.ca/eng/rp-pr/jr/gladue/index.html
StackPath. (2019). Steps to Justice. Retrieved October 3, 2022, from https://stepstojustice.ca/questions/criminal-law/what-gladue-or-indigenous-peoples-court/
