If an accused identifies as an Aboriginal Person (status or non-status) and their freedom is in jeopardy, their legal counsel has a duty to bring individualized information before the Court in the form of a Gladue Report.
Gladue applies both at bail and sentencing in a criminal proceeding, unless the accused expressly waives their right to have it considered.
At the sentencing stage of a proceeding, a Gladue Report is typically produced, detailing the factors in play which should be considered by the Court. These reports are typically completed by the Mi’kmaq Legal Support Network in Nova Scotia.
The Gladue factors to be considered are:
- Substance abuse personally and in the immediate family
- Physical abuse in personal relationship
- Violence in the family
- Deterioration of health
- Low income and unemployment due to lack of education
- Mobility issues
- Home and food security
- Overt and covert racism; and
- Loss of identity, culture and ancestral knowledge
At the bail stage of a proceeding, the methods of analysis the Judge or Justice must use in determining whether detention is justified are altered.
Specifically, the Court must look at whether the sureties offered in the context of the aboriginal culture can control the accused’s behavior. The Court must also look at whether detention of the aboriginal accused has a disproportionately negative impact on that accused and whether that impact could be alleviated by strict bail conditions. Finally, the Court must look at whether aboriginal law and customs provide the assurances of attendance in court and protection of the public that are required for release. Each case will be dependent on its specific facts, but the broader analysis is required where the accused is aboriginal.
These principles must not be applied in a vacuum as the principles would involve consideration of the unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the Courts. The exercise would involve consideration of the types of release plans, enforcement or control procedures and sanctions that would, because of his or her aboriginal heritage or connections, be appropriate in the circumstances of the offender and would satisfy the primary, secondary, and tertiary grounds for release.
In addition to the specific elements identified in the Gladue Report, the Courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools, and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide and, of course, higher levels of incarceration for aboriginal peoples.
These matters, on their own, do not necessarily justify a different sentence for aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel.
Boudrot Rodgers has experience in the application of Gladue at both sentencing and bail. If you would like to make an appointment to discuss your particular matter, please feel free to get in touch with one of our offices.