Gladue Beyond Sentencing

• Author: Jonathan Rudin
• Pages: 169-256

169

Gladue Beyond

Sentencing

6

I. Bail .................................................... 

A. Gladue Reports at Bail ............................... 

B. Connection to Indigenous Culture and Traditions .......... 

C. The Overuse of Conditions and the Imposition of

Inappropriate Conditions ............................. 

D. Relying on the Circumstances of Indigenous Accused to

Deny Bail .......................................... 

E. Getting It Right ..................................... 

II. Firearms Prohibitions ..................................... 

III. Dangerous Oenders ...................................... 

IV. Military Justice ........................................... 

V. Review Board Hearings .................................... 

VI. Corrections .............................................. 

VII. Parole .................................................. 

VIII. Civil Contempt ........................................... 

IX. Extradition .............................................. 

X. Professional Discipline .................................... 

XI. Trial Issues .............................................. 

XII. Exercise of Prosecutorial Discretion .......................... 

XIII. Grounding a Charter Challenge on Gladue and the Gladue

Principles ............................................... 

Best Practices ............................................ 

Copyright © 2022 Emond Montgomery Publications. All Rights Reserved.

170Indigenous People and the Criminal Justice System

R v Gladue1 and R v Ipeelee2 are sentencing decisions. They allowed the Supreme

Court of Canada to reflect on the meaning of section 718.2(e) of the Criminal Code3—

a sentencing provision. Yet almost immediately after Gladue was decided, the deci-

sion was used in non-sentencing situations. This chapter will look at the application

of what have often been referred to as “the Gladue principles” or “Gladue factors” in

other contexts in the criminal justice system. The term “Gladue principles” encom-

passes decisions from the Supreme Court since 1998 in cases discussed earlier such

as R v Williams,4Gladue, and Ipeelee, and more recent decisions in cases discussed in

this chapter such as Ewert v Canada5 and R v Barton.6 The term also encompasses

decisions from provincial and territorial courts as well.

What it means to consider Gladue principles or factors and what information

will be relevant for decision-makers will depend on where in the justice system an

Indigenous person finds themselves. It must be acknowledged at the outset that this

particular area of the law continues to evolve, and the outer limits of applying Gladue

are still being determined.

This chapter begins with the issue of Gladue and bail, which has garnered the

most discussion and relevant case law outside of sentencing. The chapter will then

consider ten other areas where Gladue principles have been found to apply: firearms

prohibitions, dangerous oender hearings, military justice, review board hearings,

corrections, parole, civil contempt, extradition, professional discipline, and trial

issues. We will also look at one area where Gladue was found not to apply—the exer-

cise of Crown discretion. The chapter concludes with an examination of cases where

the Gladue principles have grounded Charter challenges against particular sentencing

provisions found in the Code.

I. Bail

It is widely acknowledged that whether to grant bail to an accused person is generally

the most important decision that any judicial actor can make in the life of an accused

person. While obviously the decision of a judge determining the person’s guilt or

innocence following trial is important, most matters in the criminal courts resolve

themselves without trial—either by a plea, by a withdrawal, or by a stay of charges.

The ability of a person to instruct counsel and properly assist with the preparation

1 [1999] 1 SCR 688, 1999 CanLII 679 [Gladue].

2 2012 SCC 13 [Ipeelee].

3 RSC 1985, cC-46 [Code].

4 [1998] 1 SCR 1128, 1998 CanLII 782 [Williams].

5 2018 SCC 30 [Ewert].

6 2019 SCC 33 [Barton].

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Chapter  Gladue Beyond Sentencing 171

for trial is negatively aected if the person is denied bail.7 Similarly, the result of a

bail denial is often a relatively quick guilty plea. Despite the need for informed deci-

sions on pleas and the duty of judges to perform plea inquiries, people will plead

guilty to oences they may not have committed or for which they may have valid legal

defences if they are denied bail. For some accused persons, a guilty plea is a rational

decision motivated not by any feelings of guilt, but by a calculation of how long they

will have to wait in custody for a trial as opposed to what the sentence being oered

by the Crown for a plea is.8 Adding to this calculus can be the conditions in a remand

facility, where they are generally harsher than they are in a prison for those serving

sentenced time.9

Many of the inquiries and commissions that have looked at Indigenous people

and the justice system—described in Chapter 2—looked at the issue of bail and,

more precisely, the lack of access to bail by Indigenous accused. Concerns regard-

ing the ability of an Indigenous accused person to receive bail were explicitly raised

by the Task Force on the Criminal Justice System and its Impact on the Indian and

Métis People of Alberta,10 the Law Reform Commission of Canada,11 the Manitoba

Aboriginal Justice Inquiry,12 the Manitoba Aboriginal Justice Inquiry Implementa-

tion Commission,13 and Quebec’s Public Inquiry Commission on Relations Between

Indigenous Peoples and Certain Public Services in Quebec: Listening, Reconciliation

and Progress.14

7 R v Antic, 2017 SCC 27 at para 66 [Antic].

8 Christopher Sherrin, “Excessive Pre-Trial Incarceration” (2012) 75 Sask L Rev 55 at 65.

9 R v Summers, 2014 SCC 26 at para 2 [Summers].

10Task Force on the Criminal Justice System and Its Impact on the Indian and Métis People of

Alberta, Justice on Trial: Report of the Task Force on the Criminal Justice System and Its Impact

on the Indian and Métis People of Alberta, vol 1 (Edmonton: Task Force on the Criminal Justice

System and Its Impact on the Indian and Métis People of Alberta, 1991) at 3-5, 4-44.

11Law Reform Commission of Canada, Report on Aboriginal Peoples and Criminal Justice: Equal-

ity, Respect and the Search for Justice (Ottawa: Law Reform Commission of Canada, 1991) at 97.

12Manitoba, Aboriginal Justice Inquiry, Report of the Aboriginal Justice Inquiry of Manitoba, vol1

(Winnipeg: Aboriginal Justice Inquiry, 1991) at 1-2, 221-24, 737, online: Aboriginal Justice

Implementation Commission <http://www.ajic.mb.ca/volumel/toc.html>.

13 Manitoba, Aboriginal Justice Implementation Commission Final Report (Winnipeg: Government

of Manitoba, 2001), online: Aboriginal Justice Implementation Commission <http://www.ajic

.mb.ca/reports/final_a1.html>.

14 Quebec, Public Inquiry Commission on Relations Between Indigenous Peoples and Certain Public

Services in Quebec: Listening, Reconciliation and Progress: Final Report (Val-d’Or, QC: Commission

on Relations Between Indigenous Peoples and Certain Public Services in Quebec: Listening,

Reconciliation and Progress, 2019) at 322-28.

Copyright © 2022 Emond Montgomery Publications. All Rights Reserved.