Canada s Gladue Courts

Canada s Gladue Courts

Background Sentencing law in Canada is set out in section 718 of by the Criminal Code of Canada, as interpreted by the courts Most sentences in the Criminal Code are guidelines for the assistance of the Court Specific sentences can be mandated for specific crimes, and these mandatory sentences are also governed by the principles laid out in the Code

Purpose and Principles of Sentencing in Canada Section 718: The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and to maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

Principles, cont. 718 (a) to denounce unlawful conduct; 718 (b) to deter the ofender and other persons from committing offences; 718 (c) to separate offenders from society, where necessary; 718 (d) to assist in rehabilitating offenders; 718 (e) to provide reparations for harm done to victims or to the community; and 718 (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

Gladue Principle Sec. 718.2: A court that imposes a sentence shall also take into consideration the following principles: 718.2(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing. 718.2 (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

Caselaw R v. Gladue,, [1999] 1 S.C.R. 688, 133 C.C.C. (3d) 385 (can be found at: http://scc.lexum.org/en/1999/1999scr1-688/1999scr1 688/1999scr1-688.html): Part XXIII of the Criminal Code codifies the fundamental purpose and principles of sentencing and the factors that should be considered ed by a judge in striving to determine a sentence that is fit for the offender fender and the offence. In that Part, s. 718.2(e) ) mandatorily requires sentencing judges to consider all available sanctions other than imprisonment and to pay particular attention to the circumstances of aboriginal offenders. The provision is not simply a codification of existing jurisprudence. It is remedial in nature and is designed to ameliorate the serious problem of overrepresentation of aboriginal people in prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing. There is a judicial duty to give the provision s s remedial purpose real force. Section 718.2(e) ) must be read in the context of the rest of the factors referred to in that section and in light of all of Part XXIII. In determining a fit sentence, all principles and factors set out in that Part must be taken into consideration. Attention should be paid to the fact that Part XXIII, through certain provisions, has placed a new emphasis upon decreasing the use of incarceration.

What does this look like? A special report is provided to the Court by trained social workers/legal workers, to acquaint judicial officer with accused person s s background and circumstances; Gladue submissions made to Court by counsel as part of Bail or Sentencing hearings in order to relate the Report to the legal issues related to the hearing (i.e., release on Bail, or crafting a fit sentence.)

Caselaw,, cont. R v. Kakekagamick (2006), 211 C.C.C. (3d) 289 (Ontario Court of Appeal, leave to appeal to Supreme Court refused): duty on sentencing judge to approach the sentencing of aboriginal offenders differently

Structure of the Court While there must be always be a Gladue hearing whenever there is an aboriginal accused, not every courthouse has a specific Gladue court. Instead, the hearings are accommodated on an as-needed basis; Since 2001, three courts in Toronto have operated Gladue Courts while other courts in Ontario have Gladue initiatives. The Gladue Court identifies Aboriginal offenders for bail, guilty pleas and sentencing matters.

The Court also uses specially funded staff from Aboriginal Legal Services of Toronto who bring specialized expertise and resources to the Court, particularly in the preparation of specialized pre- sentence reports. Aboriginal Legal Services of Toronto also provides Gladue services to clients appearing in courts in the Greater Toronto Area, Hamilton-Brantford area and, effective April 1, 2009, in the Kitchener-Waterloo Waterloo-Guelph area. In 2010, the judiciary and justice officials in Sarnia developed a Gladue Court for that area.

Why Gladue Courts? Systemic discrimination and historic circumstances of First Nations Canadians has led to a long-standing problem of overrepresentation of aboriginal offenders in prison; Judge must be made aware of alternatives to incarceration that exist whether inside or outside the aboriginal community; Judge may take judicial notice of the broad systemic and background factions and give may give priority to restorative justice over other sentencing principles; However, the Court should be provided with case-specific specific information by counsel or in the pre-sentence report. The Criminal Code should not be taken as a means of automatically reducing the prison sentence of aboriginal offenders. The Court is still expected to take all relevant factors in account in each individual case in order to arrive at a fit sentence.

Lessons from other jurisdictions Canada has one federal criminal law for all provinces, so Gladue reports and submissions exist everywhere, even if there are no Gladue Courts, as exist in Ontario; In British Columbia, a First Nations Court operates in New Westminster, to apply Gladue principles to bail or sentencing hearings and related child protection matters for offenders who self- identify as Aboriginal or First Nations. In the Northwest Territories, and in Yukon, Canada, Gladue principles have led to the use of Sentencing Circles, which allows the input of the offender s s own community (whether on or off the reserve), and seeks a sentence based on input from tribal elders; These Sentencing Circles are now used in many Canadian provinces; Indigenous Courts have been used in Australia since 1999, having been imported from Papua, New Guinea In 2002, New South Wales, Australia, imported the Canadian idea, and started to experiment with Aboriginal Sentencing Circles, and are now used throughout Australia; Sentencing circles are also used in New Zealand and New Guinea

Some links of interest Saskatchewan father to seek sentencing circle,, November 4, 2008: http://www.canada.com/topics/news/story.html?id=de9cb8e1-81b1 81b1-4067-8ec8-2ed95f86341e http://www.indigenousjustice.gov.au/briefs/brief005.pdf Indigenous Sentencing Courts (Australia): http://www.indigenousjustice.gov.au/brief s/brief005.pdf Aboriginal Legal Services of Toronto: http://www.aboriginallegal.ca