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What is GLADUE Report?


The Gladue report is a pre-sentencing or bail hearing report, usually prepared by Gladue  caseworkers at the request of the judge, defense counsel or Crown Attorney. These reports contain recommendations to the court about what an appropriate sentence might be, and include information about the Aboriginal persons’ background such as: history regarding residential schools, child welfare removal, physical or sexual abuse, underlying developmental or health issues, such as FASD, anxiety, or substance use.

Gladue applies to all self-identified Aboriginal People: status and not, regardless of whether they live in or outside of an Aboriginal community. Aboriginal People can waive their Gladue rights.

In March 2012, the Supreme Court of Canada ruled that Gladue Principle also applies to breaches of long-term supervision orders. The ruling stated that “failing to take [Aboriginal] circumstances into account would violate the fundamental principle of sentencing

Gladue in Depth

In 1996, as part of a comprehensive set of amendments to the Criminal Code, the Canadian government enacted Section 718.2(e) which expressed the need for judges to consider all other sentencing alternatives before sending an offender to prison –with particular consideration for the circumstances of Aboriginals. 

R. v. Gladue was the Supreme Court of Canada’s first treatment of this provision.  This decision interpreted s.718.2(e) as a remedial measure aimed at combating the over reliance on incarceration in Canada and the startling over representation of Aboriginal peoples in Canadian prison systems.  Courts were called upon to apply sentencing dispositions that are more culturally suited to Aboriginal perceptions of justice and more likely to succeed in rehabilitating and healing offenders as opposed to merely putting them in prison.

While comprising approximately 3% of the population, Aboriginal peoples nonetheless make up about 20% of all prisoners in Canada as of 2005. In British Columbia, an Aboriginal youth aged 12-17 is about 9-10 times more likely to be in prison than a non-Aboriginal youth. Moreover, studies have increasingly shown that incarceration is not an effective rehabilitative process and that it may even exacerbate the situation. This is especially true for Aboriginals due to cultural differences that include a unique conception of justice and systemic discrimination that often extends to jails themselves.

In Gladue, the Supreme Court held that Parliament intended s.718.2(e) to address this problem to the extent possible.  It recognized that the criminal justice system has failed Aboriginals and that, though many of the underlying causes of Aboriginal over-representation in jails are beyond the power of the courts to fix, judges should attempt to address this “crisis in the Canadian criminal justice system” to the extent that they could in carrying out their functions.

To this end, judges are to use a different method of analysis in applying the principles of sentencing to Aboriginal offenders.  This method shifts the focus of the analysis to underlying causes of crime such as direct and institutional discrimination, exposure to abuse, dependency on illicit substances or alcohol, as well as other issues that disproportionately affect Aboriginals.  These factors have been identified by some as lingering effects of colonialism and Gladue recognizes that a sentence for an Aboriginal offender should, whenever possible and reasonable, attempt to address these causes and to heal the ties between the offender, the victim, and the community in traditional Aboriginal fashion.

This does not mean that Aboriginal offenders are entitled to lighter sentences.  The same principles of sentencing apply to all offenders, and the more serious and violent the offence, the more likely it will be that these principles will demand a similar disposition for Aboriginal and non-Aboriginal offenders alike, including prison terms of similar lengths.  This is because the need to denounce the offence and deter future offenders and the need to protect the public will carry more weight than the interest in rehabilitating the offender in more serious and violent cases.

Restorative justice measures have been found less effective at fulfilling the need to denounce more serious offences of violence in many cases. Also, for offenders who are at a high risk of re-offending, especially violently, the need to protect will often require that they be separated from the general public.  But for many violations, particularly those that warrant a sentence of less than two years, restorative justice can meet the demands of sentencing principles while providing a more culturally appropriate rehabilitative remedy and reducing the use of prisons. This is especially true when such restorative remedies are one component of a conditional sentence under Section 742 of the Criminal Code, with added restrictions and treatment requirements.

In fact, those Aboriginals who receive traditional restorative sentences will find that these are often at least as onerous as incarceration. This is because a restorative remedy requires the offender to accept full responsibility for their actions and the consequences thereof.  To face their community and come to terms directly with the harm they have caused.  Prison sentences, on the other hand, are far more passive experiences where the offender is mostly absorbed with passing the time.  The rigours of the restorative process serve as a specific deterrent and “the intensity of the process itself shows offenders that the community decidedly denounces the conduct.”

Perhaps more importantly, restorative justice allows the offender to focus on rehabilitating themselves so as to remove what it is that causes them to offend.  Though research into the long term effects of restorative justice on recidivism is in its infancy, studies have shown that properly carried out programs can lead to lower recidivism rates, particularly for adult offenders and especially when combined with targeted treatment programs. The impact of a restorative process on the victim of a crime is dramatic, with anger, the desire for vengeance, and lingering senses of fear and insecurity all considerably lower than when the offender has undergone a conventional justice process.

In sentencing, judges have a responsibility to recognize the general adverse conditions suffered by Aboriginals as a people.  It is also incumbent upon them to seek out the background and systemic factors that have affected a specific Aboriginal offender and brought them before the court in this instance and to consider what alternatives to imprisonment are available in the community.  A proper sentence will take account of both the general issues faced by all Aboriginals and the specific cultural hardships experienced by the offender.  It will also take into account the Aboriginal community’s perception of justice, with its emphasis on healing and restorative remedies.

Cultural Impact Factors and Other Considerations In A Gladue Analysis

Gladue analysis is optional and the offender can at any time waive the option to have the Gladue impact factors in their personal history considered in court.  To have these impact factors and a restorative justice remedy considered, an offender must:

  •  Self-Identify as an Aboriginal
  • Agree to undergo a restorative justice remedy and to comply with conditions imposed as part of such a remedy
  • If the offender decides to pursue a Gladue analysis, they will ask the court to consider the impact factors that have affected their personal history.
  • A court will recognize the adverse impact factors that affect Aboriginals in general but an offender must show how some of these are present in their personal lives and have contributed to bringing them before the court
  • These impact factors could include discrimination, institutional or personal abuse, dislocation from culture or family, substance abuse, and more
  • The offender must be willing to take responsibility in full for their wrongful conduct and the consequences thereof
  • The offender must wish to address the underlying impact factors that helped to cause that conduct so future offences can be avoided
  • This desire to avoid re-offending will reduce the threat to the public and may encourage a court to apply a restorative sentence to help the offender rehabilitate, even if the offence was serious: R. v. J.W.D. (2001) B.C.P.C. 0058
  • In addition, the community and family support available for the offender, as well as the community perception of the offence may be considered, especially in smaller communities where the offence may have a more dramatic effect: R. v. Homer (2003) B.C.C.A. 15.
  • Community and family support for the offender will often indicate a greater chance that rehabilitation will succeed
  • The specific approach to justice taken by the community will at times be considered to see if they will accept a restorative justice remedy as just: R. v. Mackinaw(2004) B.C.P.C. 0119Proulx, supra, 106-7
  • The views of the victim will also be considered –if they are willing to take part in a restorative process, are strongly against it, or impartial
  • A proposal is often presented in court outlining these views and the resources (treatment programs, counselling sessions, etc.) the community can make available for a restorative justice process.
  • If no established programs are in place, the court will often need to be convinced that the community is both willing and capable of carrying out a sufficiently rigorous and effective deterring and healing process: R. v. Morris (2004) B.C.C.A. 305R. v. Williams(2004) B.C.P.C. 0459.

Gladue Background Cultural  Impact Factors  

  • Substance abuse; personally, in the immediate family, extended family and community
  • Poverty; as a child, as an adult, offender's family, or community
  • Overt/Covert racism; in the community, by family members, strangers, school or workplace
  • Family (divorce, born out of wedlock) or community breakdown
  • Abuse: sexual, emotional, verbal, physical, and spiritual
  • Who was the perpetrator: stranger, family member, authority figure, friend
  • Witnessing violence; spousal, family, community
  • Unemployment, low income, lack of employment opportunity
  • Lack of educational opportunities
  • Dislocation from an Aboriginal community, loneliness and community fragmentation
  • Loss of identity, culture, ancestral knowledge
  • Foster care or adoption: at what age, for how long, was the foster/adopted family non-Aboriginal?
  • Family involvement in the criminal environment
  • Has the offender or family members attended residential school?  If so, where, how many years, how were they treated, how long were they denied family contact?
  • What are the main social issues affecting the offender's home/original community?
  • How has the offender's family/community addressed those issues?
  • How has the offender, offender's family, and the community been affected by economic conditions?
  • What is the quality of the offender's relationship with family, extended family, community?
  • Who comprise the offender's support network: spiritual, cultural, family, community
  • What culturally relevant or mainstream healing resources are available to the offender?
  • What culturally relevant alternatives to incarceration can be set in place that are healing for the offender and all others involved, including the community as a whole?

 

Source:

Justice Education Society

What is Gladue

 


 

 



Last updated on: 2014-07-24 | Link to this page