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

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Gladue Factors and the Justice System” (of Canada)

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Gladue Factors and the Justice System” (of Canada)

Introduction

The Supreme Court of Canada acknowledges that colonialism created problems for many indigenous people through cultural genocides and other pre-colonial injustices, increasing their likelihood of imprisonment. The Regina v. Gladue case prompted the Supreme Court to recommend that judges should consider indigenous offenders' unique circumstances, or the Gladue factor, and provide alternatives to sentence other than jail. The Gladue factor includes trauma, childhood abuse, substance misuse, and addiction, living in an abusive household, poverty, and residential school experience. Supreme Court acknowledged that indigenous people experience racism and unjust trials in the Canadian legal system subjecting them to conditional sentences, being denied bail, and are occasionally tried by impartial judges and juries. Lack of consistency Gladue principle was impacted by the absence of Gladue Courts in six jurisdictions, excluding Ontario and British Columbia, limiting the anticipated success of Gladue in lowering the overrepresentation of Indigenous people in the criminal justice system. This study will investigate the Gladue reports and Gladue factor, the impact of Gladue on criminal justice, the problems in using Gladue, and challenging for bail for indigenous individuals.

Gladue Preparation and its application

Gladue rights are enshrined in s.718.2 (e) of the criminal code, which grants particular consideration to an indigenous person when setting bail or imposing a sentence. Based on this right, indigenous offenders’ experiences unique circumstances, therefore judges are expected to examine alternatives to incarceration when imposing a sentence (Ralston, 2021). The original purpose of Gladue rights was to lower the rate of indigenous Canadians in the Federal corrective system and recidivism rate. From 1965 to 1985, the number of indigenous populations in the correction systems had increased to a worry percentage (needs in-text citation). The aboriginal population comprised approximately 2 percent of the Canadian population, but 18 percent of all federal inmates for men and 24 percent of the entire federal inmate population were indigenous women.

These results imply that the proportion of indigenous persons in the federal corrective system was greater than the overall population of non-indigenous. By granting aboriginals additional attention during bail and sentence, the Gladue rights will aid in lowering the rates of unfair trials and racism within the criminal justice system. The Gladue applies to all offenses under the Canadian Criminal Code, including major offenses. The judge will determine the case's specifics and then determine an appropriate sentence (Ralston, 2021). Aboriginals may still be incarcerated, particularly for major crimes, but the judge will give them additional consideration based on s.718.2 (e) throughout the sentencing process.

The Canadian aboriginal population experienced historical injustice at the hands of the government and missionaries, which forcibly separated families and assimilated Indian children into mainstream Canadian culture by imposing their Christian beliefs. Many indigenous children were subjected to mental and physical abuse by missionaries. Many aboriginals later after Indian residential schooling they experienced mental and substance misuse due to the cultural genocide committed against them. The forms of education supplied to aboriginal people were not comparable to those offered to the mainstream population, severely hindering their ability to compete for the same possibilities as other Canadians (StackPath. 2019).

In addition to maltreatment, the Indigenous lost most of their land, traditional beliefs, and values. They were subject to discrimination in both the criminal justice system and the residential school. Indigenous people have historically been subjected to systemic prejudice in the criminal justice system, which has resulted in an overrepresentation of indigenous individuals among those charged, convicted, and sentenced to jail, as well as those who are the victims of crime (Maurutto & Hannah-Moffat, 2016). Indigenous individuals were more likely to be denied parole, spend a disproportionate amount of time in segregation, and get less community-based sentencing. The criminal justice system has historically ignored indigenous collectives' legal reactions to wrongdoing among its members.

The indigenous people are vulnerable to judicial injustice and unfairness but when court consider Gladue factor such as racism, language loss, land removal, limitation on religious practice, residential schools, and foster care, the community will get fair sentence. The courts weigh Gladue aspects while determining alternative sentencing and duration of sentence. This decision is not limited to allowing indigenous people to engage in a restorative justice program by working with victims of crimes to enable healing from damage caused the colonialism (Ralston, 2021). Restorative justice allows victims, offenders, and communities affected by a crime to speak directly and indirectly about the crime's causes, circumstances, and effects and to solve their connected needs (Department of Justice. 2018).

The Gladue rights promoted equality in Canadian criminal justice by ensuring that indigenous circumstances are considered when determining to sentence, as some of the actions of indigenous people may have historical roots in the injustices committed by the Canadian government through residential schools. The Canadian Charter of Rights and freedom ensures that every Canadian has a right and freedom, but those freedoms and rights are subject to reasonable restrictions specified by the law (Epp, 1996). Section 2 of the charter guarantees the rights to equality, democracy, and movement, as well as the freedoms of conscience, religion, and assembly (Gulycz & Kelly,2021). Under this charter, Canadians have the right to freedom of expression, press, due process, privacy, and, in certain situations, trial by jury.

The right to equality requires equal protection and equal benefits under the law, without discrimination based on race, nationality, ethnicity, color, religion, sex, or mental or physical condition. The Canadian Charter of Rights and Freedoms protects Gladue rights because it requires judges to be fair when sentencing indigenous individuals (Epp, 1996). Adopting the Canadian Charter of Rights and Freedoms in 1982 and the Gladue right provided the proper incentive for courts to consider Gladue elements when making decisions (Epp, 1996). The 1996 sentencing amendments favored non-indigenous offenders more than indigenous offenders, leading to increased incarceration (in-text citation).

In formulating sentencing decisions, the judges considered not only the indigenous Gladue elements but also the severity of the offenses, the offender's prior criminal history, and the offender's remorse (in-text citation). This influenced the judges' sentencing decisions. The Gladue principle requires judges to evaluate the indigenous person's motivation for getting into problems with the law and the various sentencing options that may help address why the indigenous person is in court. In addition, the Gladue principle requires judges to consider more information regarding the indigenous person origin, whether or not he or she has ever been in foster care, and whether or not the offender had relatives who attended an Indian residential school (in-text citation).

Other information includes the offender's substance usage history, whether they have ever been affected by another person's substance abuse, and whether they grew up in a family displaying domestic violence (in-text citation). The supplied facts and risk assessment of the indigenous offender contributed to the judge's sentencing decision. The Gladue unique consideration is insufficient to resolve overrepresentation in the criminal justice system and should not be viewed as the solution to overrepresentation. However, it does contribute to the necessary effort toward reducing overrepresentation in criminal justice. The unjust trial and lack of impartiality of the jurors impacted the accused aboriginal's right to due process under the law. The Canadian charter of rights and freedoms stipulates that the accused must be given a fair trial by an impartial jury and be treated equally before and under the law.

R.v. Williams is a case in which an indigenous man was charged with robbery but pleaded guilty. The judge permitted questions to be asked to the jurors, who then requested a mistrial based on procedural error (Roach, 2008). The court did deny the application renewal, but he did not warn the jury against bias or prejudice against the indigenous person. The likelihood of prejudice heightened because the trial judge did not urge the jurors to disregard any racial bias they may have against the indigenous. The court of appeal ordered a fresh trial after concluding that the accused did not get a fair trial before an unbiased jury, as required by the Canadian Charter of Rights and Freedoms.

The aboriginal population, despite the existence of a Canadian convention charter of freedom and rights that discourages discrimination in criminal justice from unbiased jurors and judges, further impedes the expected administration of justice. The prevalent prejudice against indigenous people and prejudices relating to believability, decency, and criminal inclination compromise the objectivity of jurors and judges (Roach, 2008). Some participants in the criminal justice system see indigenous people as barbaric and devoid of cohesive social and moral order, which prevents them from viewing them as equals deserving of fair and equal justice.

Effect on the Criminal justice system after the implementation of Gladue

A variety of cases demonstrate how Certain judges applied Gladue factors while other judges did not consider the Gladue factors when determining the sentencing of the indigenous person. This demonstrates a failure by the lower courts, particularly the court of appeal, to effectively interpret and enforce the Supreme Court's ruling recognizing that colonization produced problems for many indigenous people, increasing their likelihood of going to prison (Roach, 2008). The Supreme Court requires justices to consider alternatives to incarceration as a means of repairing the damage caused by the colonial system. However, there is need to have more regularity in how judges decided cases involving s.718.2 (e).

In the case of R. v. Wells, for instance, the lower court and the court of appeal offered Wells a jail sentence because it was reasonable under the circumstances, despite Wells' request for a non-custodial sentence. The accused had committed major crime; therefore the court deemed a jail sentence to be the more appropriate punishment for the purpose of deterrent and punishment for the criminal offenses (Roach, 2008). This conclusion was reached after analyzing s.718.2 (e) of the code. The court of appeal upheld the lower court's sentence, stating that it was the judge's responsibility to choose the most appropriate punishment based on the circumstances of the crime and that not every case involving aboriginal people merited the application of restorative justice.

This suggests that, although recognizing the existence of Gladue rights and the specific circumstances of indigenous people, the judges do not consider restorative justice or other alternatives to punishment as appropriate for certain crime. The judge sentencing is centered solely on deterring the offense and the severity of the criminal offenses (Roach, 2008). The appellate court has not spent much time analyzing the majority of the Gladue court's ruling about the overrepresentation of indigenous people in jail. The R. v. Well case illustrates how the appellate court disregards the Supreme Court's focus on the need for a separate methodology to be utilized when sentencing everyone, including the most serious aboriginal offenders.

The application of Gladue factors was observed in the case related to R. v. Morris. Morris was accused of abusing his wife for hours while displaying a firearm and threatening to kill her male companion. The defendant was sentenced to two years of probation. However, the states appealed the sentence because the defendant had no substance addiction problem and political influence as a member of the Tsarlip Indian Band (Roach, 2008). The appeal was granted, and Morris was sentenced to one year in prison based on evidence indicating he did not engage in substance misuse or family breakdown. The court of appeal did not find the trial court's decision about restorative justice improper. The court of appeals issued a ruling that prioritized punishment, condemnation, and deterrents.

This ruling contradicted the restorative and rehabilitative alternative sentencing involving indigenous communities in administering the penalty. This indicates that the judges despite recognizing the influence of Gladue elements and concepts requiring alternative sentencing options, the Canadian court system continues to emphasize punishment and deterrence. The ineffective implementation of the Gladue rights explains why the Canadian criminal justice system is so dominated by the aboriginal population (Turpel-Lafond, 1999). This results from the appellant court's contentious judgment, which seeks to promote deterrence and punishment since the judges view the indigenous people as without a coherent social and moral order and unworthy of restorative and rehabilitative justice (Manikis, 2016).

Despite pressure from the Crown to reemphasize s.718.2 (e), the British court of appeal in R. v. Jack case acknowledged that Gladue considerations had no direct connection to Jack's commission of the offense (Roach, 2008). Mr. Jack was an indigenous offender; therefore the court did recognize that the Gladue factors were important considerations. However, the court did recognize that Gladue variables had greater relevance when judging the possibility of rehabilitation. After an aboriginal woman pled guilty to trafficking controlled substances and possessing the proceeds of the crime, the Saskatchewan Court of Appeal departed from the British Columbia Court of Appeal's Gladue considerations when determining the sentence for R.v. Laliberte.

The crown appealed for the court to consider s.718.2 (e), but the court indicated that Gladue's rights did not imply an automatic sentence reduction. As a result, the court dismissed the appeal but upheld the offender's conditional sentence, despite reliance on s.718.2 (e) as an aboriginal person (Roach, 2008). This demonstrates a discrepancy in how judges implement section 718.2 (e), and comparable trends have been noted in different jurisdictions. Some judges are predisposed toward deterrence, which largely influences their decisions, particularly with jail sentences. Commonly, these choices are made even when there is substantial evidence of Gladue factors on the accused and their role in the crime.

In the case of R. v. Cress, the court dismissed the accused's appeal for multiple charges after two years. The judges denied the appeal despite being informed that the appellant grew up in a home with a substance abuse problem and that most of his offenses involved the use of drugs and alcohol (Roach, 2008). To promote equality in criminal justice, the courts must recognize the history of discrimination and the gravity of increasing the number of indigenous population in criminal justice. The court should place greater emphasis on the Gladue principles, particularly the information they need to know about the accused prior to rendering verdicts, to render fair decisions and advance equity in criminal justice.

Application of Gladue fails in certain circumstances

The failure of Gladue is attributable to the lack of culturally suitable sentencing systems and alternatives to incarceration, which negatively impacts the Gladue principle's implementation. In R. v. Wells, for instance, the defendant was denied a conditional sentence partly due to the local community's lack of anti-sexual assault programming. Implementation of the Gladue findings across Canada had minimal impact on lowering the overrepresentation of indigenous people in the federal criminal justice system due to inadequate funding for alternatives to incarceration (Denis-Boileau, 2021). Indigenous individuals were sentenced in Ontario and British Columbia, where many Gladue courts operate, but those sentenced outside the two provinces were subjected to the conventional criminal justice system, including conditional punishment.

This explains why numerous causes determined in British Columbia did apply s.718.2 (e) to indigenous individuals in contrast to the case sentences in other provinces. Extending the Gladue Court to additional provinces will make a difference in ensuring that indigenous people receive special consideration in community-based sentencing procedures. This will ensure that the criminal justice system adheres to the Gladue principle and considers the special circumstances of indigenous people (Denis-Boileau, 2021). When a significant crime has been committed, the Gladue principles should be properly applied. In R. v. Leonard, for instance, the Gladue principles were not properly applied, which explains why the criminal justice system failed.

Bail on Gladue application

Gladue applies in all instances where the liberty of an indigenous person is at stake. At the trial level in R. v. Wesley, British Columbia, and R. v. Pittawanakwat, Ontario, Gladue criteria were utilized. The indigenous background of the accused may be considered in bail decisions in eight provinces and territories (Department of Justice. 2018). According to the Canadian convention on rights and freedoms, each individual charged with an offense has the right not to be denied reasonable bail without justification (Department of Justice. 2018). Indigenous defendants are more likely to be denied bail because of other forms of racism in the criminal justice system.

The bail system is inconsistent with the ladder concept, particularly for marginalized individuals. Prejudices and discriminatory attitudes about evaluating offender risk and public safety are still influenced by race, class, and aboriginal setting. However, in such cases, the perceived risk is mitigated by the deployment of sureties and the imposition of increasingly stringent pre-trial release conditions. Examining the accused's background characteristics that were presented in court is an appropriate and biased method of bail context since such evidence reduces a criminal's moral culpability in sentencing (Department of Justice. 2018). The rejection of bail for Indigenous people results in criminalization through pretrial detention.

The person accused with minor charges will end up spending more than a month in pre-trial detention and less time in jail if they plead guilty. The incentive to plead guilty is problematic since an innocent defendant may be criminalized through pre-trial detention and could be charged with a crime in the future, in addition to having fewer opportunities to obtain bail (Department of Justice. 2018). The criminal justice system must seek ways to rehabilitate the accused and assure their compliance with restorative justice. The bail should consider the factors and practices that negatively impact indigenous people and contribute to over-incarceration.

Conclusion

The Supreme Court of Canada acknowledges that colonialism created problem for many indigenous people through cultural genocides, forced enrollment of Indigenous children in residential schools, and other colonial injustices. The historical injustice exposes many indigenous people to mental illness, substance misuse, poverty, and other Gladue issues that may increase their likelihood of incarceration. The Gladue principle addressed some of the bias and unfairness in the criminal justice system by requiring judges to evaluate unique circumstances based on Gladue characteristics and to offer alternatives to jail time. Since the R. v. Gladue case, many judges have considered the Gladue criteria when making decisions. In contrast, others have considered the Gladue factors but still think it important to promote deterrence and punishment commensurate with the gravity of the offense. Due to the lack of uniformity in executing the Supreme Court's judgment, the absence of Gladue Courts in the remaining six provinces has impeded the anticipated success in reducing the overrepresentation of Indigenous people in the criminal justice system. Lastly, there is still a significant level of biasness and discriminating attitudes denying bail for indigenous people, thus increasing criminalization through pre-trial custody.

References

Denis-Boileau, M. A. (2021). The Gladue Analysis: Shedding Light on Appropriate Procedures and Sanctions. Reference: Marie-Andrée Denis-Boileau, «The Gladue Analysis: Shedding Light on Appropriate Sentencing Procedures and Sanctions»(2021), 54(3).

Department of Justice. (2018). Spotlight on Gladue: Challenges, experiences, and possibilities in Canada’s criminal justice system. Retrieved September 29, 2022, from https://canada.justice.gc.ca/eng/rp-pr/jr/gladue/p3.html

Epp, C. R. (1996). Do bills of rights matter? The Canadian Charter of Rights and Freedoms. American Political Science Review, 90(4), 765–779.

Manikis, M. (2016). Towards accountability and fairness for Aboriginal people: The recognition of Gladue as a principle of fundamental justice that applies to prosecutors. 21 Canadian Criminal Law Review 173 Available at SSRN:  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/La Revue Canadienne Droit et Société, 31(3), 451-471. doi:10.1017/cls.2016.35

R. v. Williams, [1998] 1 S.C.R. 1128. Retrieved from https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1631/index.do

Ralston, B. A. (2021). The Gladue Principles: A Guide to the Jurisprudence. The University of Saskatchewan, Native Law Centre. Retrieved from https://indigenouslaw.usask.ca/publications/the-gladue-principles.php

Roach, K. (2008). One step forward, two steps back: Gladue at ten and in the courts of appeal. Crim. LQ, pp. 54, 470.

StackPath. (2019). Steps to Justice. Retrieved October 3, 2022, from https://stepstojustice.ca/questions/criminal-law/what-gladue-or-indigenous-peoples-court/

Turpel-Lafond, M. E. (1999). Sentencing within a restorative justice paradigm: Procedural implications of R. v. Gladue. Crim. LQ, 43, 34.