Aboriginal Accused and the Criminal Justice System

July 4, 2010

If a guilty plea is entered or if a person is convicted after trial, the focus of the Court shifts to sentencing. If you are entering a guilty plea it is vital that you contact counsel so that all the factors which affect the nature of the sentence may be canvassed. Unique background factors can influence the type and/or length of sentence a conviction attracts. In R v Gladue (1999) the Supreme Court of Canada dramatically changed the way aboriginals are sentenced and detained. In that case the Court interpreted section 781.2(e) of the Canadian Criminal Code which provides,

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.

The interpretation was an attempt to remedy the courts’ over-reliance on incarceration as a response to criminal activity by First Nations individuals. After canvassing numerous studies, commissions and reports on Aboriginal people and the criminal justice system, the Court concluded:

These findings cry out for recognition of the magnitude and gravity of the problem, and for responses to alleviate it. The figures are stark and reflect what may fairly be termed a crisis in the Canadian criminal justice system. The drastic overrepresentation of aboriginal peoples within both the Canadian prison population and the criminal justice system reveals a sad and pressing social problem. It is reasonable to assume that Parliament, in singling out aboriginal offenders for distinct sentencing treatment in s. 718.2(e), intended to attempt to redress this social problem to some degree. The provision may properly be seen as Parliament’s direction to members of the judiciary to inquire into the causes of the problem and to endeavour to remedy it, to the extent that a remedy is possible through the sentencing process. (para 64)

When a defendant has aboriginal lineage the court is required to conduct a background assessment and consider alternative sanctions- This is known as the Gladue approach to sentencing, and occur in special Gladue courts. In fact, all judges in all courts are duty bound to consider the implications of the Gladue decision prior to sentencing an aboriginal defendant: The court must consider the following;

  1. 1. The unique systemic and background factors which played a part in bringing that particular aboriginal before the courts; and,
  2. 2. The types of sentencing procedures and sanctions which may be appropriate in the circumstances because of the defendant’s Aboriginal heritage or connection.

The Gladue approach does not apply to the whole trial process. It applies at bail hearings before the trial, and again at sentencing after conviction. The trial process of an aboriginal offender does not differ in any respect from the trial process of a non-aboriginal offender- The same rules of evidence apply. The degree of aboriginal influence necessary to warrant the Gladue approach will vary from person to person. Residence or connection to a reserve is not a requirement. In some circumstances the Galdue approach will be used when a defendant was not aware of his aboriginal heritage. This is because “aboriginal community” must be defined broadly to include any network of support and interaction that may be available, including in an urban centre. Residence in an urban centre lacking support does not remove the court’s obligation to consider alternative punishment other than incarceration.

The first step in the Gladue approach is an assessment of the defendant’s background and community experiences, known as a Gladue report. Statistically, the aboriginal community has a greater incidence of poverty, discrimination, family dislocation, sexual abuse, domestic abuse and addiction. These experiences play a major role in the disproportionate representation of aboriginals in prison. At this stage the court is interested in determining whether the accused has suffered as a result of systemic or direct discrimination. It is not necessary that the accused themselves suffer discrimination provided they have suffered its effects. For example, aboriginal children may live in poverty as a result of discrimination or addiction suffered by their parent(s). In order to aid the court in their assessment the accused will be required to supply information relating to

  • Personal history (address, employment, education)
  • Circumstances leading up to the offence
  • Their family home experience
  • Their parents history
  • How they are supported financially.

This is not an exhaustive list. The accused may be asked very personal questions relating to the types of schools he/she attended, his/her experience with adoption and child welfare as well as his/her experience with abuse, addiction and mental illness.

After the court has identified the particular background factors affecting the defendant, they will then consider alternatives to incarceration. For example, substance abuse programs and/or counseling programs can be used to replace of a custodial sentence. The Gladue sentencing approach may be used to lessen a sentence in circumstances where the nature of the offence requires that a custodial sentence is served. It is important to tell counsel about all possible programs as well as their dates, locations and entry requirements. The court will consider all possible programs both inside and outside the aboriginal community. Aboriginal descent does not create an automatic sentence reduction. The courts goal is to expand the use of restorative justice measures and to reduce the overrepresentation of aboriginals in prisons. This different approach to sentencing does not always mean that the ultimate result is different result.

The more serious the crime, the more likely the sentences of aboriginal and non-aboriginal offenders will coincide.

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